State v Momo - Sentence [2012] FJHC 1093; HAC086.2011 (18 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 086 OF 2011S

STATE

vs

SEREMAIA NAIDOLE MOMO

Counsels : Ms. J. Cokanasiga for the State
Mr. J. Savou for Accused
Hearing : 20th April and 4th May, 2012
Sentence : 18th May, 2012

SENTENCE

1. On 20th April, 2012, in the presence of your counsel, you pleaded guilty to two counts of murder, in the following information:
   

FIRST COUNT

Statement of Offence

MURDER: contrary to Section 237(a)(b)(c) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SEREMAIA NAIDOLE MOMO on the 13th day of March 2011 at Kasavu, Nausori in the Central Division, murdered TONY BARLEY.

SECOND COUNT

Statement of Offence

MURDER: contrary to Section 237(a)(b)(c) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SEREMAIA NAIDOLE MOMO on the 13th day of March 2011 at Kasavu, Nausori in the Central Division, murdered MERE MARIA NAVUE.

2. The matter was then adjourned to 4th May, 2012 to enable the prosecution to prepare the summary of facts, and other documents. On 4th May, 2012, the prosecutor read her summary of facts in court.

3. The facts were briefly as follows. The accused was 27 years old on 13th March 2011. The deceaseds, Tony Barley and Mere Navue, were aged 22 years, at the time. The accused worked as a caretaker at Vuniwavudi Settlement, in Logani, Tailevu. Both deceaseds were, at the time, occupying a farm house, at Balabala Settlement, Kasavu. The accused had been drinking liquor with friends since Saturday, the 12th March 2011 until 4 am on 13th March, 2011 - a Sunday. He walked towards his home, along Kings Road, after 4 am, and met the two deceaseds, along the way. According to the accused, Tony swore at him. The accused continued on his way for about 40 to 50 meters, and then stopped. He suddenly felt slighted by Tony's swear words, and thought it appropriate for Tony to be taught a lesson. He returned, but found the deceaseds have gone to the nearby farm house.

4. He went to the farm house, carrying a tree branch. He heard the deceaseds talking inside. He forced open the door, and saw them lying on a wooden bed inside the house. Tony stood up. The accused threw two punches at him, and he fell and sat on the bed. The accused then took a spade lying beside the wall, and swung it at Tony. The sharp edge of the spade struck the right rear side of Tony's head, causing severe head, skull and brain injuries. The accused struck Tony with the sharp edge of the spade 2 or 3 times. Mere shouted when she saw what the accused was doing. The accused then swung the sharp edge of the spade at the left side of her face, causing severe head, skull and brain injuries. The accused then picked up the tree branch and repeatedly hit Tony with it. Tony, despite been seriously injured, was still breathing. The accused then throttle him, until he died.
   
5. The accused then picked up the tree branch, and struck Mere's face twice. Mere was still breathing, despite been seriously injured. The accused then took off his clothes to his knees, and forcefully had sexual intercourse with her, while she was unconscious. After ejaculating inside her, he took off her bra and strangled her with it. But she was still breathing. He again forced himself on her by having sex with her. Then he stood on her throat for about 15 minutes until she was dead.
   
6. After the summary of facts were read, the court checked with defence counsel, to see that all the ingredients of "murder" were admitted by the accused. Mr. J. Savou, on behalf of his client, admitted that, the accused hit the deceaseds' heads with the sharp edge of a spade (engages in conduct), which caused serious head and brain injuries to them, leading to their deaths (conduct causes the death of another person), and at the time, the accused intended to cause their deaths. The court was satisfied, on the basis of counsel's admission, on behalf of his client, that the accused was guilty of murdering the two deceaseds, at the material time. The court then convicted the accused as charged.
   
7. I note you admitted your five previous convictions of "Criminal Trespass" (2003); "Shop Breaking Entering and Larceny" (2004); "Larceny" (2006); "Unlawful use of a punt" (2006); and "Assault causing actual bodily harm" (2011). I have noted your antecedent report. I have also noted the victims' impact report. I have taken into account your written and verbal plea in mitigation, including all the written and verbal submissions, submitted by you and the prosecution.
   
8. "Murder" is a serious offence, and it is often said, to be at the top of the criminal calender. It carries a mandatory penalty of life imprisonment. (Section 237, Crime Decree 2009). The court has the power to fix a non-parole period to be served, before a prisoner is eligible for parole. Case precedents show that the non-parole period for murder varies widely, depending on the peculiar facts of the case. In Waisale Waqanivalu v The State, Criminal Appeal No. CAV 0005 of 2007, Supreme Court, Fiji, on 5 counts of murder and 1 of attempted murder, the accused was given 19 years non–parole period on each murder count, and 10 years consecutive on a pending prison sentence, total non-parole period was 26 years. In State v Niume & Others, Criminal Case No. HAC 010 of 2010, High Court, Suva, on 2 counts of murder, Accused No. 1 was given 25 years non-parole period for the murder counts. In State v Ashwin Chand, Criminal Case No. HAC 032 of 2005, High Court, Lautoka, on a count of murder, the accused was given a non-parole period of 22 years. In State v Navau Lebobo, Criminal Case No. HAC 016 of 2002, High Court, Suva, the non-parole period was 20 years. Twenty years non-parole period were also imposed in the following three cases: State v Anesh Ram, Criminal Case No. HAC 124 of 2008S, High Court, Suva; State v Bharat Lal & Others, Criminal Case No. HAC 061 of 2009S, High Court, Suva, and The State v Salesi Balekivuya, Criminal Case No. 095 of 2010S, High Court, Suva. In State v Tukana, Criminal Case No. HAC 021 of 2009, High Court, Lautoka, the non-parole period was 11 years. The non-parole period imposed will depend on the mitigating and aggravating factors.
   
9. The mitigating factors, in this case, were as follows:
   
   • (i) You pleaded guilty to the two murder charges, and therefore saved the court's time, although this was 1 year 19 days after first call in the High Court;
     
   • (ii) You have been remanded in custody since you first appeared in the Nausori Magistrate Court on 16th March 2011. You have therefore being in custody for 1 year 2 months and 2 days;
     
   • (iii) You co-operated with the police during their investigation, by admitting the offences, when caution interviewed on 13th, 14th and 15th March 2011;
     
   • (iv) You appear remorseful by pleading guilty to the offences.
     
10. The aggravating factors, were as follows:
    
    • (i) You have unnecessarily terminated the life of two young people, who were both aged 22 years old, at the time of their death;
      
    • (ii) You had no justifiable reason whatsoever to take the lives of these two, and your excuse that Tony swore at you, and that you needed to teach him a lesson, was no excuse whatsoever;
      
    • (iii) Your method of killing the two showed your utter disregard for human life. You got hold of a spade, and using its sharp edges, you literally "crack opened" their skull, causing fatal head and brain injuries, when you struck their heads with the same;
      
    • (iv) After severely injuring the two, as described above, you proceeded to repeatedly strike Tony with a tree branch, and then struck Mere also with the same;
      
    • (v) After the above, you throttle Tony to death;
      
    • (vi) Then you proceed to rape Mere twice while she was severely injured and unconscious;
      
    • (vii) Then you strangled Mere with her bra, and stood on her throat, for about 15 minutes, until she died;
      
    • (viii) For what you did to the two deceaseds, you must accept that your liberty would be withdrawn, to atone for your deeds.
      
11. On count No. 1, I sentence you to mandatory life imprisonment. For the non-parole period, I start with 20 years imprisonment. I increase it by 8 years to 28 years for the aggravating factors. I decrease it by 4 years for the mitigating factors, leaving a balance of 24 years. You are to serve a non-parole period of 24 years imprisonment.
    
12. On count No. 2, I repeat the above process and sentence.
    
13. In summary, on each count, you are sentenced to life imprisonment. On each count, you are to serve a non-parole period of 24 years each. Given the principle of the totality of sentences, both sentences are concurrent to each other, ie. you are sentenced to life imprisonment, with a non-parole period of 24 years imprisonment. I order so accordingly.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of Director of Public Prosecution, Suva.
Solicitor for Accused : Legal Aid Commission, Suva