State v Vasuturaga - Sentence [2016] FJHC 697; HAC241.2014S (5 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 241 OF 2014S

STATE

vs

SITIVENI QIO VASUTURAGA

Counsels : Mr. T. Qalinauci and Ms. L. Bogitini for State
Ms. S. Vaniqi for Accused
Hearings : 25, 26 and 27 July, 2016
Summing Up : 29 July, 2016
Judgment : 1 August, 2016
Sentence : 5 August, 2016

SENTENCE

1. On 1 August 2016, the court delivered a judgment, on the following counts, in the following information:

Count 1

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree, 2009.

Particulars of Offence

SITIVENI QIO VASUTURAGA on the 10^th of August, 2014 at Kadavu in the Southern Division, murdered ELENOA WAQAICECE.

Count 2

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree, 2009.

Particulars of Offence

SITIVENI QIO VASUTURAGA on the 10^th of August, 2014 at Kadavu in the Southern Division, murdered SALASEINI KUNAYASI.

Count 3

Statement of Offence

ATTEMPTED MURDER: Contrary to section 44(1) and section 237 of the Crimes Decree, 2009.

Particulars of Offence

SITIVENI QIO VASUTURAGA on the 10^th of August, 2014 at Kadavu in the Southern Division, attempted to murder JIMMY VICTOR MORRELL.

2. On count no. 1, the court found you guilty of murdering your wife, Ms. Elenoa Waqaicece, on 10 August 2014, at Kadavu in the Southern Division. The court then convicted you accordingly. On count no. 2, the court found you not guilty of murdering your mother-in-law, Ms. Salaseini Kunayasi, on 10 August 2014, at Kadavu in the Southern Division, but guilty of her manslaughter, at the time. The court then acquitted you of the murder charge, but convicted you on the lesser offence of manslaughter. On count no. 3, the court found you not guilty, and acquitted you accordingly.
   
3. The brief facts were as follows. On 10 August 2014, you lived with your wife in a rented two bedroom house at Namuana Village, Kadavu. You were 41 years old, while your wife was 38 years old. Your wife worked at Vunisea Hospital as a cook, while you stayed at home doing domestic chores, cook, farmed and dived for fish for the family. You had been married for 16 years. Your mother-in-law moved in with the two of you when you two went to Kadavu. She was 51 years old. Also, residing with you were your nephews Jimmy Morrell and Steven Morrell, including you two’s adopted daughter, your wife’s namesake.
   
4. You and your mother-in-law do not get on well. She saw you as “a good for nothing lay about”. At times, she felt you don’t deserve her daughter, and she often asked her to leave you for good. On 10 August 2014, an argument started between the two of you. She started calling you names and repeatedly swore at you. Your wife joined in the argument siding with her mother. Your wife, mother-in-law and your nephews Jimmy and Steven decided to leave the house. You stopped your wife. You two argued in the kitchen. Your wife threatened you with a kitchen knife. You grabbed the same and stabbed her to death. You later went into the sitting room, and later to the porch, where you repeatedly stabbed your mother-in-law to death.
   
5. There is only one sentence for murder and that is a mandatory life imprisonment (section 237 of the Crimes Decree 2009). For the murder of your wife, I sentence you to the mandatory life imprisonment (count no. 1). The law gives the court power to fix a minimum term to be served before a pardon may be considered by His Excellency the President of the Republic of Fiji (section 119 of the 2013 Constitution of the Republic of Fiji).
   
6. Life is precious in this world. You have unnecessarily taken away the life of your wife. This woman had choosen to share her life with you by marrying you. You had been married for 16 years. The problem that arose on 10 August 2014 between you and your wife could have been resolved in a more peaceful way. But you choose to end her life on that day by stabbing her to death. By doing so, you had shown no regard whatsoever to her right to life. You had shown no regard whatsoever to her personal safety. You had shown no love to the woman who had choosen to share her life with you for the last 16 years. You have to accept that you will have to pay for your crime with the loss of your liberty. At least, you are still breathing, while your wife stopped breathing on 10 August 2014 at about 5.05 pm. I note that you had been remanded in custody since 21 August 2014, that is, approximately 2 years ago. I also note that you are a first offender at the age of 43 years, and co-operated with the police during the investigation. Taking the above into account, I fix the minimum term to be served before pardon may be considered as 21 years imprisonment.
   
7. For the manslaughter conviction in count no. 2, the maximum sentence is 25 years imprisonment (section 239 of the Crimes Decree 2009). In State v Arthur James Kamoe Moore, Criminal Case No. HAC 114 of 2010S, High Court, Suva, I said the following, “... “Manslaughter” is a serious offence. It carries a maximum sentence of 25 years imprisonment. However, case laws in Fiji seemed to show that penalties for manslaughter range from a suspended prison sentence to 12 years imprisonment. Sentences in the upper range were reserved for cases where the degree of violence was high and the provocation given was minimal. Sentences at the lower end of the scale were reserved for case where the violence used was minimal and the provocation given was in the extreme; see Kim Nam Bae v The State, Fiji Court of Appeal, Criminal Appeal No. AAU0015 of 1998S; The State v Frances Bulewa Kean, Criminal Case No. HAC 037 of 2007S, High Court, Suva; State v Amali Rasalusalu, Criminal Case No. HAC 003 of 2003, High Court, Suva. The actual sentence passed will depend on the mitigating and aggravating factors...”
8. The aggravating factors, in this case, were as follows:
   • (i) The use of extreme violence to resolve a problem. This incident arose as a result of your inability to resolve this domestic problem in a peaceful way. Although your mother-in-law was somewhat harsh on you, that does not mean that her life had to be taken away to resolve the problem. You had no right to take away a person’s life, no matter what the provocation was. You can only take away a person’s life on the grounds of self-defence, if it was necessary to preserve you or others’ life. That was not the case here. Your 51 year old mother-in-law is dead, while you, 43 years old, is still alive. You showed no regard whatsoever to the victim’s right to life. For your offending, you must not complain when your liberty is taken away to pay for your crime;
     
   • (ii) As a result of your offending, Ms. Salaseini Kunayasi had lost her life, and this obviously will cause heart-ache and sadness to her family.
     
9. The mitigating factors were as follows:
   • (i) At the age of 43 years, this is your first offence;
   • (ii) You had been remanded in custody for approximately 2 years
     
10. I start with a sentence of 7 years imprisonment. I add 3 years for the aggravating factors, making a total of 10 years imprisonment. I deduct 1 year for the accused being a first offender, leaving a balance of 9 years. I deduct another 2 years, for time spent in remand, while awaiting trial. The balance is 7 years imprisonment. On count no. 2, I sentence you to 7 years imprisonment.
    
11. In summary, your sentences are as follows:
    • (i) Count no. 1 : Murder : Mandatory life imprisonment, with a minimum

term of 21 years to be served, before pardon may be considered by His Excellency the President of the Republic of Fiji.

(ii) Count no. 2 : Manslaughter : 7 years imprisonment

12. Because of the principle of the totality of sentence, I direct that the above sentences be made concurrent to each other, that is, a final sentence of mandatory life imprisonment, with a minimum term of 21 years to be served before a pardon may be considered.
13. Mr. Sitiveni Qio Vasuturaga, for the murder of your wife Elenoa Waqaicece (count no. 1) and the manslaughter of your mother-in-law Salaseini Kunayasi (count no. 2), on 10 August 2014, at Kadavu in the Southern Division, I sentence you to life imprisonment, with a minimum of 21 years to be served in prison, before a pardon may be considered by His Excellency the President of the Republic of Fiji, to be effective forthwith.
    
14. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo

JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : S. Vaniqi, Barrister and Solicitor, Suva.