State v Cagimaira - Sentence [2014] FJHC 828; HAC174.2011 (11 November 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 174 OF 2011

STATE

-v-

SUSANA CAGIMAIRA

Counsels : Mr. Semi Babitu for the state
Ms. C. Choy for the accused

Date of Sentence : 11 November 2014

SENTENCE

1. You are charged as follows:
   

FIRST COUNT

Statement of Offence

MURDER: Contrary to Section 237 of the Crimes Decree No. 44 of 2009.

Particulars of the offence

SUSANA CAGIMAIRA on the 30th day of November, 2010 and 1st day of December at Lautoka in the Western Division, murdered her child.

2. You pleaded Not Guilty to the charge. After trial lasting five days, the three assessors unanimously found you Guilty. This Court concurred with that verdict and found you Guilty as charged and convicted you.
   
3. Following facts were proved at the trial.
   

You have given birth to a child and soon after you stepped on the face of that child. According to the Doctor who conducted the post mortem the cause of death was subarachnoid haemorrhage due to crush injury. You have hidden the fact that you are pregnant from other co-employees. However, you have told one co-worker that you will have an abortion and told another co-employee who was with you after the birth of the child that you will kill the baby.

4. The mandatory sentence fixed by law for Murder 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.
   
5. 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.
   
6. Both parties have filed detail submissions on the sentence. I have carefully considered those submissions and the case authorities submitted by both parties on setting a minimum period.
   
7. In State v Momo [2012] FJHC 1093; HAC 086.2011 (18 May 2012) Hon. Mr. 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.

8. The state and defence had drawn attention of the Court to the case of State v Baleiniusiladi [2010] FJHC 358; HAC 042.2009 (25 August 2010). Hon. Mr. Justice Priyantha Nawana had given a sentence of life imprisonment with a non-parole period of 12 years to a pregnant lady who was convicted of murder of her own baby boy.
   
9. Aggravating factors;
   
   • (i) Accused took away the life of an infant when he was yearning for life
   • (ii) Planned killing
   • (iii) Tried to conceal the killing of her baby
   • (iv) Lack of remorse
     
10. Mitigating circumstances:
    
    • (i) You are first offender at the age of 30 years
    • (ii) You are mother of two children aged 7 and 5 years
    • (iii) You are 7 months pregnant now
    • (iv) You have spent 4 days in remand
      
11. After weighing the aggravating factors against the mitigating circumstances of this case, I fix a non-parole period of 12 years acting under Section 18 (1) of the Sentencing and Penalties Decree.
    
12. Therefore, you are sentenced for life imprisonment and not eligible for parole till completing 12 years imprisonment. The prison authorities are directed to submit you to constant medical counseling and keep you under observation both during and after the pregnancy.
    
13. 30 days to appeal to Court of Appeal.
    

Sudharshana De Silva
JUDGE

At Lautoka
11th November 2014

Solicitors: Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for Accused