State v Nalave - Sentence [2013] FJHC 511; Criminal Case 29.2004 (2 October 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: 29 OF 2004

STATE

-v-

1. ALESI NALAVE
2. KELERA MARAMA

Counsels : Ms. S. Puamau for the State
Ms. T. Sharma with Mr. R. Kumar for the 1st accused
Mr. Anil J. Singh for the 2nd accused

Date of Trial : 16 September -25 September 2013
Date of Sentence hearing : 1 October, 2013

Date of Sentence : 2 October, 2013

SENTENCE

1. Alesi Nalave Tawake and Kelera Marama you have been found guilty by the court of the offence of Murder. The sentence fixed by law for such offence is that the convicted person shall be sentenced to imprisonment for life. There is no discretion allowed to the court in a murder case to sentence to a lesser term.
   
2. It is well known that convicted persons sentenced to life imprisonment usually do not serve the full term, that is serve imprisonment for the rest of their lives. Most have their sentences reduced after serving a considerable term such as 10 to 12 years.
   
3. In State v Momo [2012] FJHC 1093; HAC 086.2011 (18 May 2012) Justice Temo had discussed this issue in detail.
   

"Murder" is a serious offence, and it is often said, to be at the top of the criminal calendar. 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; The State v Bharat Lal & Others, Criminal Case No. HAC 061 of 2009S, High Court, Suva; The State v 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.

4. Both prisoners were very young at the time they committed the offence. Alesi Nalave was 20 years old and Kelera Marama was 19 years old.
   
5. They are not from well-off homes. They did not get far with their education. When Alesi Nalave was in early high school her mother passed away and father got partially blind. She ended up at the Maphi Girls home where she met Kelera Marama for the first time. Kelera's mother too has passed away and father had re-married leaving her at the Girls home.
   
6. Neither has shown any remorse for what they have done. Both maintain their innocence.
   
7. The deceased Xiaolu Lee also known as Sheryl Li was one of the Directors at the Frequency Lounge Night Club in Nadi where the incident took place. She was working and serving customers at the Bar on 10.6.2004 in the night. She had gone to the office to get change in $5 and $2 notes. She was then confronted by both the accused, who had gone to the office to steal money. The deceased was assaulted several times on head and back with liquor bottles, which were kept at the office.
   
8. The deceased was later seen lying in pool of blood by the employees of the club and was admitted to Lautoka hospital. She was flown to Auckland District hospital on 15.6.2004 and had died on the same day. She never gained consciousness after the attack.
   
9. This is the third trial for the accused for the same offence. In the first trial before John Connors J both accused had pleaded guilty after their caution interview statements were admitted as evidence. On 6th September 2005 both were sentenced to life imprisonment. The Hon. Judge did not fix any minimum term to be served.
   
10. The Court of Appeal set aside this conviction and the sentence on 24th October 2008, on the basis that Guilty pleas of the accused were equivocal.
    
11. The second trial which started on 3rd October 2012 was adjourned to 5th October 2012 as the counsel for the accused was suspended from practice.
    
12. Therefore this case has taken more than 9 years to start this trial, during which period both accused had been in good behavior. Further this court will take into consideration the mental trauma both accused would have undergone for waiting for the trial for such a long period.
    
13. While the trial was pending, 1st accused had become mother of two children who are aged 8 years and 3 years now. The 2nd accused is also mother of two children aged 3 years and 2 years.
    
14. In this case, I have called for submissions from counsel on whether I should recommend a minimum period to be served under the provisions of Section 33 of the Penal code.
    
15. Ms. Puamau for the State had made submissions on a minimum term. Her position is minimum period of 2-9 years imprisonment would not be unjust in all the circumstances of this case.
    
16. Ms. T. Sharma in her submissions on behalf of the 1st accused had drawn attention of the court to the young age of the first accused, the fact that she is a mother of two children and her family back ground and prayed for a lenient sentence.
    
17. Further 1st accused has been in remand for about 12 months and had served 3 years and a month for this case after the 1st trial.
    
18. Mr. Anil J. Singh on behalf of the 2nd accused had drawn attention of court to the young age of the 2nd accused, her family back ground, two young children and prayed for a nominal non parole period.
    
19. Further 2nd accused had spent total of 5 years and 7 months period in remand and serving for this case.
    
20. Considering all above, you are both sentenced to life imprisonment and Alesi Nalave to serve minimum period of 6 years and Kelera Marama to serve minimum of 4 years.
    
21. On application of the counsel for the 1st accused, I recommend Prison Authorities to make arrangements for the 1st accused to facilitate access to her younger child.
    

Sudharshana De Silva
JUDGE

AT LAUTOKA
02nd October, 2013

Solicitors for the State : Office of the Director of Public Prosecution, Lautoka
Solicitors for the 1st Accused : Ms.T.Sharma with Mr.R. Kumar
Solicitors for the 2nd Accused : Mr. Anil J.Singh