State v Waqamailau [2010] FJHC 534; HAC006.2010 (22 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 006 of 2010

BETWEEN:

STATE
PROSECUTION

AND:

OSEA WAQAMAILAU
ACCUSED-PERSON

Counsel: Mr. Mosese Korovou
Assistant Director of Public Prosecutions
-For State

Mr. T. Terere -For Accused

Dates of Trial : 09th and 10th November, 2010

Date of Summing Up : 12th November, 2010

Date of Judgement : 16th November, 2010

Date of Sentence : 22nd November, 2010

RULING ON SENTENCE

1. You - Osea Waqamailau - stood charged on two counts. The 1st count was in relation to the 'murder' of Prasad Amit Singh, while the 2nd count was in relation to 'robbery with violence' on Prasad Amit Singh, punishable under Sections 199 and 293(1) (b) of the Penal Code respectively.
   
2. As the information was read-out on 09.11.2010, you changed your earlier 'plea of not-guilty' in respect of the count on 'robbery with violence' and instead tendered an unequivocal 'plea of guilty'. Court accepted the plea of guilt after being satisfied that it was voluntary and free from any influence.
   
3. The case proceeded to trial on the charge of 'murder' as set-out in count (1). The case for the prosecution was based on your cautioned-interview statement, contents of which were admitted by you. Facts agreed, based on the contents of the cautioned-interview statement, were filed on 08.11.2010, where admissions of the 'acts of attack' on the deceased and the 'causation of the death' of the deceased by you were recorded.
   
4. Primary but all important issue before court and assessors was whether you did have the malice aforethought in your acts and the conduct in light of the facts as set-out below in causing the death of the deceased.
   
5. You visited the 'Austech Laboratory' on the 26th Saturday of September, 2009 and met the deceased to get your blood tested for sexually transmitted diseases (STD). Upon noticing that the deceased was all alone, you left the laboratory having developed the idea of robbing he deceased. You, little later, intruded into the laboratory after being armed yourself with a kitchen knife, which you purchased for the very purpose of executing your sinister plan.
   
6. You entered the laboratory and invaded the deceased with a simultaneous threat of extortion of money. As the deceased rightfully reacted against the physical violence on him and the threat of robbery with a hand-picked knife, you got injured in the right knee and also got your fingers of the right hand cut resulting in bleeding injuries.
   
7. The deceased was, however, overpowered by you and he was then incessantly attacked at least with four strokes with the kitchen knife. Each one of such stroke had caused a separate injury particularly in the chest and in the area of neck. As the deceased rose to escape, you punched him twice on the face followed by another couple of punches as the deceased was running to the door to flee the shower of attacks. The deceased, upon receipt of repeated attacks, fell on the floor. You, thereupon, furthered the attack with two blows with a footstool right on the head.
   
8. Your multiple attacks with varying degrees of force resulted in grievous injuries to the vital organs of the deceased including those of the lung and the brain. The left lung was punctured and collapsed with a large collection of blood in the left pleural cavity. The brain was heavily damaged with subdural hemorrhage. All in all, the injuries had caused excessive loss of blood in the pleural cavity, which eventually led the deceased to an immediate death. The nature of injuries, you inflicted in the deceased was such that any medical intervention, according to the doctor, had only little chance of saving the life of the deceased.
   
9. As the deceased was dying, you robbed him of $ 150.00 and two mobile telephones. You rushed, immediately thereafter, to the Lautoka Hospital in order to treat your injuries, while leaving the deceased all alone when he was profusely bleeding. You took no trouble to see what had happened to the deceased, whose medical assistance you sought a little earlier in the day to allay your fears of your suffering from STD. Instead, you left him to die.
   
10. In light of the above set of facts, you were convicted on 12. 11. 2010 for the offence of 'robbery with violence' on your own plea of guilt; and, for the offence of 'murder' pursuant to the verdict of court, reasons for which were delivered on 16.11.2010.
    
11. You stand today before me to receive sentences against you. The maximum sentence for the offence of murder is mandatory imprisonment for life, while the offence of robbery, too, attracts an imprisonment for life at the discretion of court. In each case, court is required, in terms of Section 18(4) of the Sentencing and Penalties Decree No 42 of 2009 (the Decree), to impose a minimum term of imprisonment before which you shall not be released on parole.
    
12. I bear in mind, in imposing the minimum terms of imprisonment under Section 18(4), which would be the ultimate operative sentences, the general principle of sentencing under Section 15 (3) of the Decree, which states:
    

'As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in [the General Sentencing Provisions of the Decree].'

13. The objectives of sentencing, as set-out in Section 4 (1) of the Decree, are as follows:
    

(a) To punish offenders to an extent and in a manner, which is just in all the circumstances;

(b) To protect the community from offenders;

(c) To deter offenders or other persons from committing offences of the same or similar nature;

(d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) To signify that the court and the community denounce the commission of such offences; or

(f) Any combination of these purposes.

14. Section 4 (2) of the Decree further provides that, in sentencing offenders, a court must have regard to:
    

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable guideline judgment;

(c) The nature and gravity of the particular offence;

(d) The offender's culpability and degree of responsibility for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) The conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) The offender's previous character;

(j) The presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) Any matter stated in this Decree as being grounds for applying a particular sentencing option.

15. Section 4 of the Decree on 'Sentencing Guidelines' encapsulates jurisprudential underpinnings so as to balance competing interests of the offender, the victim and the society at large. Courts, in their judgements, have consistently borne in mind the sociological theory of balancing the interests among the parties concerned in giving effect to the purposes and objectives of sentencing under the Decree as well as under the corresponding provisions of the previous legislation. I had the benefit of examining such judgments as guidelines in order to conform to the requirement of imposing the punishment, '...which is just in all the circumstances' on the accused as prescribed by Section 4 (1) of the Decree.
    
16. Their Lordships of the Court of Appeal of Fiji in Sakiusa Basa vs. the State (Criminal Appeal AAU 24/2005), upholding the conclusions of Shameem J. (as she then was), which read:
    

'Sentences for robberies involving firearms should range from six to eight years. A lower range of four to seven years is appropriate where firearms are not used and the premises are banks, or shops, post offices or service stations. However, the sentence may be higher where the victim or victims are particularly vulnerable due to age, infirmity, disability or where children are involved. Similarly where injuries are caused in the course of the robbery, a higher sentence will be justified. The value of the property stolen, evidence of planning or premeditation, multiple offences and previous convictions for similar offences should be considered aggravating features.

The sentence may be reduced where the offender has no previous convictions, has pleaded guilty and has expressed remorse.

This list of aggravating and mitigating features is by no means exhaustive. Furthermore, the sentence will always be adjusted up or down, depending on the facts of the particular case'

(My emphasis)

17. In the above case, Shameem J. had chosen 8 years as the starting point to punish the offenders in a case involving robbery with violence. The Court of Appeal, whilst agreeing with Her Ladyship's decision as to the starting point of the sentence, stated that 'the learned Judge was justified in fixing her starting point at eight years on the basis of the overall offence'. The Court of Appeal further held that:
    

'Anyone who commits robbery with violence must expect an immediate sentence of imprisonment. This was a well planned attack carried out with weapons and a clear willingness to use violence. Since that offence, this appellant has committed another robbery. We do not interfere with the sentence ordered but we are constrained to add that the final sentence that the appellant has to serve is as short as it properly could be and we would not have interfered had a considerably longer term been ordered.'

(My emphasis)

18. His Lordship Justice Goundar in giving judicial effect to the victim impact under Section 4 (2) of the Decree observed in State v Mataisai Bulivou Susu [2010] FJHC 226 that:
    

'The victims were vulnerable by virtue of their employments. They are always exposed to risk of harm because they provide services to the public and they are in possession of cash earnings. For these reasons, an attack on the public transport providers and employees of service stations must not be condoned. Such attacks must be denounced. Otherwise, the public will be deprived of essential services if the providers cease to operate these services because of fear of becoming victims of crime.

Fortunately, the victims were not physically injured. But being gagged and driven while in the boot of a vehicle must be a horrific experience for the victim. Also, being threatened with violence by a gang to hand over the property must be daunting to the victim. These experiences cannot be forgotten easily and the emotional impact that such experiences leave behind on the victim cannot be ignored by the court',

and picked up 6 years as the starting point as no physical injury was caused to the victim.

19. State vs Rokonobete and Others [2008] FJHC 226, which was referred to by Justice Goundar in Susu's case (supra), has summarized the guiding principles in sentencing in cases involving robbery. They are:
    

'From these authorities, the following principles emerge. The dominant factor in assessing seriousness for any types of robbery is the degree of force used or threatened. The degree of injury to the victim or the nature of and duration of threats are also relevant in assessing the seriousness of an offence of robbery with violence. If a weapon is involved in the use or threat of force that will always be an important aggravating feature. Group offending will aggravate an offence because the level of intimidation and fear caused to the victim will be greater. It may also indicate planning and gang activity. Being the ringleader in a group is an aggravating factor. If the victims are vulnerable, such as elderly people and persons providing public transport, then that will be an aggravating factor. Other aggravating factors may include the value of items taken and the fact that an offence was committed whilst the offender was on bail.

The seriousness of an offence of robbery is mitigated by factors such as a timely guilty plea, clear evidence of remorse, ready co-operation with the police, response to previous sentences, personal circumstances of the offender, first offence of violence, voluntary return of property taken, playing a minor part, and lack of planning involved.'

(Emphasis mine)

20. As recently as 09th of August, 2010, His Lordship Justice Madigan in State v Rasaqio [2010] FJHC 287; HAC 155/2007, observed that the normal range of sentence for robbery with violence is now 10 to 16 years in the High Court after trial having relied on State v Basa: AU0024/04, Wainiqolo v State: AAU0027/06 and State v Rokonabete: HAC 118/07 and imposed a term of 15 year-imprisonment on an accused for robbery with violence, who was also found guilty of murder, with a non-parole period of 11 years. Justice Madigan imposed a minimum term of 14 years for the offence of murder where that offence was resulted in the prosecution of the offence of 'robbery with violence'.

21. In State v Jack Anthony Fraser HAC 118/2006 (14.4.2010), Justice Madigan, underlining the necessity to 'reflect the abhorrence of the community', imposed a minimum term of 16 years on an accused who was found guilty of murder. The killing in that case was carried out on a contract where the accused gained the monetary benefit of $2000.00 to get rid of a commercial competitor in jewelry trade at the behest of an unknown man in the same trade.

22. I will now proceed to consider appropriate sentence on the accused upon consideration of submissions in mitigation. Learned defence counsel placed before court following personal background in mitigation of the sentences. They were:

(i) The convict is now 23 years of age;

(ii) He is in de-facto relationship which has produced three daughters of 5, 3 and 2 years;

(iii) He is a casual worker by occupation earning about $ 100 per week;

(iv) He has studied upto Form 6;

(v) He is the sole breadwinner of the family and

(vi)He grew up in the Christian faith.

23. Learned defence counsel also contended that the accused had only intended to rob and the death had ensued without premeditation. His formulation of the submission in mitigation in that respect is worth mentioning verbatim. He said:
    

'Given the circumstances of the offender and offending, we submit that there is lack of pre-meditation on the part of the offender in the murder of the deceased in that he had not planned nor intended to kill the deceased. He only intended to rob him and this is obvious in his intention to plead guilty to the robbery with violence charge'

(Emphasis mine)

24. The submission is wrong for a few reasons. Firstly, in law and in fact, any sane man is presumed to have intended and foreseen probable consequences of his act/s or conduct. Secondly, the accused, on his own admissions, had continued his incessant attacks until the deceased was done to death in order to reach 'his intention of robbing' and take away the meagre amount of $ 150.00 and two mobile phones. Thirdly, the submission has the inefficacy of re-urging the matter of intention, which has already been dealt with by this court with the conclusion that the convict did have the intention to commit the murder of the deceased.
    
25. The Court of Appeal of Fiji in dealing with a similar submission in appeal to reduce the sentence of a convict, who was found guilty of manslaughter and robbery with violence in a similarly circumstanced case of Vilimoni Navamocea v State [2007] FJCA 38 (25.06. 2007) held that:
    

'The last ground refers to the killing having been the result of a robbery gone wrong. That phrase has become common in such cases and is even referred to by sentencing courts as a matter which, in some way, should be taken as a reason for reducing the sentence.

All it can mean is that the initial intention of the accused was to rob. That offence includes the use of intentional violence. In cases where death results it is that violence which caused it irrespective of whether or not there was a conscious anticipation that it would do so'.

26. Their Lordships in that case further observed thus:
    

'It has taken some years for the courts to recognize the seriousness of violent robberies and rapes and to pass appropriate sentences. Over the same period this Court has seen a general decline in the level of sentences passed for manslaughter resulting from similarly violent robberies to as low as five and six years. That is clearly wrong.

In 1990 in the case of Navitalai Rauve v State, this Court reduced a sentence of twelve years to ten years. More recent sentences passed in the High Court show the reduced levels e.g. Sailosi Serukalou V State [1999] AAU 17/98, 27 August 1999, five years; Joeli Tikolevu and Jonetani Rokoua v State [1996] AAU 21/96, 12 November 1999, six years; Kim Nam Bae's case, six years; Mosese Tawake v State [2005] AAU 37/04, 11 November 2005, six years.

'There can be no more serious offence than one which needlessly takes away the life of an innocent person. In other crimes the court will have seen and heard the victim and been able to assess the horror of what he or she has experienced. In manslaughter cases that is, of necessity, impossible. Yet utter devastation to the victim's family will be inevitable. How can an offence which results in taking an innocent life be sentenced less severely than an offence of violence which does not?

We suggest that, in all cases of manslaughter where the death is the result of a deliberate infliction of violence in the course of committing another offence such as robbery in which grave violence was anticipated and any form of weapons used, the court should use a starting point of between ten and fourteen years imprisonment.

The facts of this case showed a young man who for the sake of continuing drinking, was willing to attack an innocent man. Having failed to obtain the money he and his accomplice needed they lay in ambush in the victim's own home; the place where above all other he has a right to feel safe. They then attacked him again with such violence that his skull was fractured. Having taken the cash, they left the victim dying on the floor and returned to their drinking. We consider those factors could have merited a starting point of more than ten years imprisonment.

Although the judge properly allowed for mitigating factors, he did not cite any aggravating circumstances yet there were many. The offence was committed by more than one person, the attackers were willing to pursue their victim and repeat the offence with increased violence, they were armed with weapons and used them with sufficient force to cause the fatal injury and they left with no apparent concern for the offence they had committed or the welfare of their victim. We should suggest that those would more than off set the effect of the mitigation considered by the judge.

27. Rulings in above judicial precedents and analysis of provisions of the Sentencing and Penalties Decree sufficiently equip me to consider an appropriate punishment on the convict, which is '...just in all the circumstances' as prescribed by Section 4(1) (a) of the Decree, after embarking, indeed, on the exercise of balancing the interests of the accused as advanced by learned defence counsel.
    
28. Learned defence counsel submitted further that:
    

(i) The accused cooperated fully with police investigation as evident from the fact that he voluntarily surrendered himself into custody;

(ii) The accused felt sorry for what he has done and deeply regretted his actions, in particular, the robbing of the deceased, which subsequently resulted in his untimely death;

(iii) The fact that he felt into temptation by robbing the deceased and he acknowledged his wrong-doings by his early plea of guilty;

(iv) The fact that he has no prior history of violence or of similar nature; and,

(v) The fact that the stolen items belonging to the deceased were recovered.

29. Admittedly, the accused is a first offender and he did not have a prior history of violence or of similar nature. Whether, 'a first offender' should earn mitigation on sentencing is a matter, in my view, that should be carefully considered especially when the offence is serious; and, when offending is accompanied by pre-meditation, supported by well-planning and its execution is gruesome. In dealing with a plea for a non-custodial term of imprisonment in a case of robbery with violence, I remarked:

'...the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule' ...

See State v Tilalevu [2010] FJHC 258; HAC 081 2010; (20 July 2010)
30. I will suitably adopt the above proposition to apply to this case so as to disentitle the accused to any discount in sentencing as I subscribe to the view that court should not make such discounts when the offence is serious and the offending is pre-meditated, well planned and the outcome is gruesome as set-out in the circumstances in the foregoing paragraphs unless there is a genuine remorse evidenced by an early guilty plea.
31. Aggravating factors that need be considered in this case are:
(i) The offences for which the accused was found guilty were very serious and in fact the offence of murder is the most serious offence known to law;
(ii) The offence of robbery was with premeditation, well-planned and in fact the weapon of offence was promptly secured in order to carry out the offence with violence;
(iii) The offence of robbery was pursued despite the resistance by the deceased, which he was entitled to under law, until it was reached;
(iv) In prosecution of the offence of robbery, the deceased was stabbed several times resulting in grievous injuries as results of which the deceased bled to death;
(v) In the process, the deceased was showered with many a punches preventing all his attempts to flee from the scene;
(vi) After the deceased fell on the ground, the deceased was struck with a footstool twice on the head, which is reflective of brutality at its highest;
(vii) The offences were committed on an innocent man who was spending hours of work on a holiday to help sick people on laboratory tests;
(viii) You yourself had sought his assistance to get your blood tested immediately after which you carried out the offences brutally;
(ix) You rushed for treatment showing utter disregard and remained silent until you were searched for by police.
32. As shown above on the strength of judicial authorities, the offence of robbery with violence attracts a range of 10-16 years of imprisonment. I am satisfied, as sanctioned by Section 15(3) of the Decree, that a lesser offence or an alternative sentence would not meet the objectives of sentencing in Section 4 of the Decree in this case. Facts and circumstances of the case justifiably persuade me to regard a severe term of imprisonment as the last resort.
33. I, accordingly, pick up 14 years as the starting point and add 6 years to reflect aggravating factors and arrive at 20 years of imprisonment. I reduce 4 years for the guilty plea for the offence of robbery with violence and reach at 16 years. I reduce further 2 years for his social and family background and return to 14 years of imprisonment. Acting under Section 18(1) of the Decree, I order that the accused shall not be eligible for parole until he serves the above term of 14 years as the minimum term of imprisonment for the offence of robbery with violence.
34. As regards the offence of murder, I sentence the accused to life imprisonment as I am mandatorily required to. Upon a careful consideration of the provisions of Sections 4 and 15 of the Decree, the facts and circumstances as set-out above, I order that the accused shall not be released on parole until he completes a minimum term of 20 years of imprisonment.
35. In setting this minimum term, I took into account the impact of the offences on the family of the deceased. The deceased was only 29 years of age, married and had a daughter of 3 years of age.
36. You- Osea Waqamailau- are sentenced to:
(i) Imprisonment for life for the offence of murder. You shall serve a minimum of 20 years before you become eligible for parole.
(ii) Imprisonment for 14 years for the offence of robbery with violence. You shall serve the full term of 14 years. You shall not be eligible for parole within that 14 year period.
PRIYANTHA NAWANA
JUDGE
LAUTOKA
22nd NOVEMBER, 2010