State v Hicks - Sentence [2016] FJHC 777; HAC179.2016S (2 September 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 179 OF 2016S

STATE

vs

BERNARD HICKS

Counsels : Mr. S. Vodokisolomone for State
Mr. E. Koroi for Accused
Hearings : 5, 19 and 26 August, 2016
Sentencing : 2 September, 2016

SENTENCE

1. On 5 August 2016, in the presence of your counsel, you pleaded guilty to the following information:
   

Statement of Offence

MURDER: Contrary to section 237 (a) (b) and (c) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

BERNARD HICKS on the 1^st day of May, 2016 at Suva in the Central Division, murdered LAVENIA RADINITAVEA.

2. The matter was then adjourned to 19 August 2016, for the prosecution to present their summary of facts. The prosecution’s summary of facts read as follows:

“...On the 1^st day of May, 2016 Lavenia Radinitavea [deceased] aged 33 years, a receptionist at Saf’s Apartment Motel and Bernard Hicks [accused] aged 50 years, a diver of Saf’s Apartment had consumed liquor at the apartment and later after midday left for Wainibuku in the Nakasi area to visit the relatives of the deceased. The two had continued to consume liquor at Wainibuku. Both the deceased and the accused were living together in a defecto relationship for the past 5 years and were renting a room at Saf’s apartment.

On the evening of the 1^st May 2016, the accused and the deceased returned to their flat at Saf’s Apartment. Upon arrival an argument broke out between the two where the accused was under the suspicion that the deceased was having an affair with another man. The argument went to a stage where the accused picked up a kitchen knife and stabbed the deceased eight times (8) underneath the deceased right arm pit on the chest area. The accused then left the deceased lying in a pool of blood in their apartment and went to the Suva Market Police Post to report the matter at about 10.00 pm in the evening. The stabbing incident was reported to PC 5286 Sefanaia by one Jolame through the mobile phone of the accused. The accused was conversing with Jolame through his mobile phone and gave it to Police Constable Sefanaia to receive the report.

PC Sefanaia after receiving the report left to visit the scene at Saf’s apartment and attend to the report. Upon arriving at the scene at room 7 of Saf’s Apartment PC Sefanaia peeped through the window and saw an I Taukei lady who was the deceased lying on the floor. The officer entered the said room and saw heavy blood stain on the right side of the deceased. PC Sefanaia called deceased’s name five times but she did not respond. The deceased was conveyed to the CWM hospital where she was pronounced dead by the doctor on duty.

On 3^rd May 2016 the body of the deceased Lavenia Radinitavea was identified by her nephew Waseroma Koroiwaca before post mortem was conducted. Later post mortem examination was conducted and caused of death as determined by the pathologist was

(i) Excessive loss of blood due to multiple stab wounds

The caution interview statement of the accused was recorded and he had confessed and made admissions on questions and answers 111, 112, 114, 115, 116, 117, 121, 122 and 128. A white handle long blade kitchen knife was shown to the accused and he confirmed and identified that it was the same kitchen knife he had used to stab the deceased. The accused had admitted that he stabbed the deceased many times underneath her right armpit on the chest area. Question and answer 139 of the accused caution interview statement reads:

Q: what was the status of your mind at the time you were stabbing Lavenia?

A: I wanted to pay back what she did to me and I know I will kill her at the time I was stabbing her.

The accused was formally charged with one count of murder pursuant to section 237 (a) (b) and (c) of Crimes Decree No. 44 of 2009 and was apprehended in Court accordingly...”

3. The court then checked with you, through your counsel, on whether or not you are agreeing to the prosecution’s summary of facts, and whether or not you are admitting all the elements of the offence of “murder”. Through your counsel, you admitted that on 1 May 2016, at Suva in the Central Division, you stabbed the deceased several times under her right arm pit on the chest area with a kitchen knife (conduct); and the above conduct caused serious internal injuries to the deceased, resulting in her death thereafter (conduct causes the deceased’s death). Through your counsel, you also admitted that when you did the above conduct, you intended to cause the deceased’s death. Through your counsel, you admitted the prosecution’s summary of facts, subject to the above. As a result of your above admissions, the court found you guilty as charged, and convicted you accordingly.
   
4. The matter was then adjourned to 26 August 2016, for you to file your written plea in mitigation and for the parties to submit their submissions on sentence. I note that you have a clear record in the last 10 years. I have noted your antecedent history and the victim impact report. I have also noted your well prepared written plea in mitigation and sentence submission, submitted by your counsel.
   
5. There is only one sentence for murder and that is a mandatory life imprisonment (section 237 of the Crimes Decree 2009). 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. As I had said before in various murder cases, life is precious in this world. There really is no justification to take away someone’s life, unless it was a case of self-defence. Lavenia was 33 years old, when you took away her life. You were 50 years old at the time. You had lived 17 years more than her. You had a good life. You are married to one Titilia and you had 9 children with her. You separated from her in 2011. Lavenia choose to live with you as your defacto wife since then. She was 28 years old at the time, and you were 45 years old. There was obviously a lot of love in you two’s relationship. But it appeared there was also a lot of arguments.
   
7. Prior to the incident on 1 May 2016, you two had a normal day. Lavenia was working as a receptionist at Saf’s Apartment from 8 pm on 30 April to 8.30 am on 1 May 2016. You were at you two’s room at Saf’s Apartment until 12 am. Then you came to be near your wife drinking grog with her boss until 7 am in the morning. Then you continued drinking grog until 8.30 am when Lavenia finished work. Then the two of you consumed alcohol until the afternoon. You then visited Lavenia’s relatives at Wainibuku. On your way back to Saf’s Apartment, you had an argument with Lavenia in a taxi. She chased you out of the taxi. You waited for 1 ½ hours, when she returned to pick you up in a taxi. She was with another man. You immediately suspected her of “two timing you”. You both returned to you two’s room at Saf’s Apartment. An argument erupted leading you to kill Lavenia. You said you were driven by jealousy.
   
8. Your case had demonstrated the futulity of using murder as a means of resolving a domestic dispute. You have unnecessarily taken away Lavenia’s life. Your problem could have been easily resolved through peaceful means. Yes, it would appear Lavenia treated you unfairly on the day by chasing you out of the taxi, and returning 1 ½ hour later with another male. Yes, you had reasons to be jealous and suspicious. However, murder is not the answer, neither a remedy. A man is more courageous by walking away and not extracting revenge. Paying with a mandatory life imprisonment is not the answer to the problem that confronted you on 1 May 2016.
   
9. I take on board your genuine remorse by pleading guilty to the charge 3 months after the first call in the High Court. I also noted that you had a clear record in the last 10 years. I note also that you had been remanded in custody for approximately 4 months. I had taken into account the mitigating factors advanced by your counsel, especially your guilty plea, and the fact that by doing so, you had saved the court’s time. I have also noted Lavenia’s father’s comments in the Victim Impact Report. His and his family’s life had been severely affected with the loss of Lavenia. She was always supporting them financially.
   
10. For the offence of “murder”, there is only one mandatory sentence and that’s life imprisonment. I therefore sentence you to the mandatory life imprisonment. Given the matters I mentioned above, I set 16 years as the minimum terms to be served before a pardon may be considered.
    
11. In summary, Mr. Bernard Hicks, for murdering Ms. Lavenia Radinitavea on 1 May 2016 at Suva in the Central Division, I sentence you to the mandatory life imprisonment, with a minimum term of 16 years imprisonment to be served before a pardon may be considered by His Excellency the President of the Republic of Fiji.
    
12. 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: Koroi Law, Barrister and Solicitor, Nausori.