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State v Vulaca [2008] FJHC 98; HAC120S.2007S (23 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 120 of 2007

STATE

v.

LOLE VULACA
RUSIATE KOROVUSERE
PITA MATAI

Hearing: 25th March – 22nd April 2008
Sentence: 23rd April 2008

Counsel: Mr. W. Kuruisaqila & Ms L. Lagilevu for State
Mr. J. Semisi for all Accused

SENTENCE

Lole Vulaca and Rusiate Korovusere, you are both convicted of the murder of Tevita Malasebe, on the 4th and 5th of June 2007. The Penal Code provides for only one sentence for murder and that is life imprisonment. However I have a discretion to fix a minimum term which you must serve before you are entitled to parole.

The murder of Tevita Malasebe was a most reprehensible event for Fiji’s Police Force. He was assaulted repeatedly in the Valelevu Crime Office from 1am to about 4.30am on the 5th of June 2007. The pathologist found evidence of assault with wooden planks, and torture marks on the soles of the feet. He said that Malasebe must have died a most painful death. The tragedy was that he was killed by those who are entrusted by us all, to preserve the law.

I would accede to the prosecution’s request for a minimum term except for one factor. The evidence against you was that of secondary offenders, that is, that you were part of a joint enterprise to assault Malasebe. There was no evidence that either of you inflicted any of the assaults yourselves. It is impossible in these circumstances to apportion responsibility to either offender.

For that reason I will not set a minimum term for either of you. You are each sentenced to life imprisonment.

Pita Matai, you have been convicted after the unanimous decisions of the assessors of being an accessory after the fact to an offence. You saw the deceased Malasebe lying on the Crime Office floor. You saw him shortly after WPC Taraivini saw him. He was motionless. He had black marks of injuries over his body, and you knew he was dead. You also knew he had died as a result of police assault while he was in custody. You then did everything you had been trained as an investigator not to do. The body was removed, and you participated in a fiction that the deceased had "breathing difficulties."

I accept that as a police sergeant you had a special relationship with your men. In disciplined forces, a sergeant’s first duty is to his men, and vice versa. But this loyalty, commendable though it is, must give way to a duty to the law. And when you saw what your men had done, your duty as a police officer should have prevailed.

This is a terrible tragedy for you because I accept that you had told your men to lock Malasebe up in the cell. They did not listen.

I accept that you are a well-respected member of the Police Force with an excellent record. I also accept that this conviction on its own, is punishment because you will not be able to re-enter the Police Force. I accept the evidence of Director CID SP Lesu, who was visibly moved when he gave evidence on your behalf, that you have been an exemplary and respected police officer with no disciplinary record. I accept also the evidence of Father Sulio Turagakabici who said that you were a dedicated church goer and a loving and supportive husband and father. I also accept that the effect of this conviction is devastating for you, for your career and your family. However I cannot overlook the fact that because of your actions, the investigations into Malasebe’s death were obstructed and frustrated. Perhaps we will never know who inflicted the terrible injuries on Malasebe in the Crime Office, because of your act of assisting your men to cover the incident up. There is a blanket of silence over what occurred in the Crime Office that night. Your conduct contributed to that silence.

In these circumstances I cannot order a non-custodial sentence for you. The maximum by statute is 3 years imprisonment. Although Mr. Semisi suggests that the maximum sentence is 7 years imprisonment, I note that this is the maximum sentence under section 216 of the Penal Code. You were charged under section 388 for which the maximum sentence is only 3 years imprisonment. The State may have intended to charge you under section 216, but that is not reflected in the Information. The fact however that the offence for which you were accessory after the fact, was murder, affects the picking of my starting point. You are a first offender and a senior police officer. I pick 2½ years as my starting point. After taking into account all the mitigating and aggravating factors, I sentence you to 2 years imprisonment.

Nazhat Shameem
JUDGE

At Suva
23rd April 2008