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State v Tagiteci [2010] FJHC 383; HAC031.2010 (3 September 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 31 OF 2010

BETWEEN:

STATE

AND:

SEKAIA TAGITECI

Counsel: Mr. Kaisamy - for the State
Mr. Sen - for the Accused

Date of Hearing: 26.08.2010, 27.08.2010
Date of Sentence: 03.09.2010

SENTENCE

Background

1. The accused was charged for Attempted Murder and the charge reads as follows.

Statement of Offence

ATTEMPTED MURDER: Contrary to section 44(1) and 237 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SEKAIA TAGITECI on the 28th of June 2010 at Buavou, Seaqaqa in the Northern Division, unlawfully attempted to cause the death of LAILANI ROKOVONU.

Particulars of the Offence

2. The victim Lailani Rokovonu was the de facto wife of the accused. They have two small children by their de facto married life. There was Nacanieli Saini 4 year old and Siliva Rasue 3 year old. Both accused and the victim had domestic problems. As per the victim, the accused had suspected that the victim has an extra marital affair. On the faitful Saturday 09/06/2010 the victim and the accused were at the victim's parental house, and she woke up in the early morning to go to Buavou to attend a funeral. The accused was lying in the bed from the previous night's alcohol hangover. After she prepared the meals she went to the river to have bath. After having the bath when she got ready to return home the accused had gone there and started a quarrel. At that time their child Naca who was 4 years old was also there. The accused dealt a blow on the victim with his hands. On receiving the injury the victim had fallen down and seated in a disoriented position. The child was also fell and stayed there. The accused ran to the bank of the river and pulled out a cane knife from its hiding place and attacked vigorously on the victim. As per the accused, he aimed the neck. The victim prevented the blows with her hands. The accused has dealt several blows with the cane knife which resulted in severing the hand of the victim cut injuries on her breast, right hand and the highs. She was immediately rushed to Labasa Hospital and her bleeding was arrested. But her hand remained permanently amputated. Accused ran away from the place of the incident and subsequently arrested by the police.

Law

3. Now I consider the Law.

1. Section 44(1) states as follows:
   

"A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency."

2. Section 237 of the Crime Decree
   

A person commits an indictable offence if-

1. the person engages in conduct; and
   
2. the conduct causes the death of another person; and
   
3. the first-mentioned person intends to cause, or is reckless as to causing,
   

the death of the other person by the conduct.

Penalty-Mandatory sentence of Imprisonment for life, with a judicial discretion to set a minimum term to be served before pardon may be considered.

Sentence

4. Sentence is set out on section 237 of the Crimes Decree as per the above section is mandatory sentence of imprisonment for life time.

Tariff

5. Now I consider the tariff to the offence of Attempted Rape.

6. In the case of State v Samy [2007] FJHC 78; HAC029S.06 (29 November 2007) the accused pleaded guilty to the charge of attempted murder. According to the facts the accused attacked her mother, the brother and a cousin with a chopper all the three victims sustained serious injuries. One of the victims lost two fingers as result of the impact of the chopper. Her Ladyship Justice Shameem in deliberating her sentence reflected on the weapon used, the seriousness of the injuries and that it was premeditated. The accused entered in his diary that he was going to kill his mother, brother, sister and brother in law them commit suicide. Hence her Ladyship sentenced the accused to 9 years imprisonment.

7. In the case of State v Atik [2010] FJHC 199; HAC045.2009 (10 June 2010) his Lordship Justice Madigan sentence the accused to 6 years imprisonment for beating the wife with a knife. When delivering his judgment the learned judge took into consideration that there was some degree of planning.

8. The case of Prasad v State [2008] FJCA 48; AAU111.2007S (8 August 2008) the court of appeal took into consideration that the learned judge took into account a 9 year for the starting point for the offence of attempted murder. The facts are, the appellant tried the victim to a tree then poured kerosene on her and set her on fire. The judge sentenced the accused to 8 years imprisonment.

9. In the case of Ledua v State [2008] FJSC 31; CAV0004.2007 (17 October 2008) the Supreme Court reduced a 10 years sentence for attempted murder to 9 years.

10. In the case of State v Sharma [2009] FJHC 62; HAC045.2008 (4 March 2009) the court acknowledge that a starting point of 9 years is appropriate for the charge of murder.

"The usual starting point for attempted murder is a nine year prison term; State v Rajendra Sami HAC029S.06; State v Bobby Hemant Prasad HAC52 of 2007. In those two cases a sentence of 9 years and 8 years were imposed respectively."

Subsequently the appellant was given an 11 sentence.

11. In State vs Annamallay (2005) FJHC 100; HAC0004J.2004B (4 May 2005). Justice Shameem states that the tariff for Act to Cause Grievous Harm punishable under section 224 of the Penal Code is between suspended term to 2½ imprisonment.

12. Considering all above case Laws the tariff is between suspended term to 9 years imprisonment.

13. Considering the facts of the case, it was very brutal attack on a woman who is unarmed and with a child in the morning hours of the day invites me a serious consideration so I commence your sentencing at 5 years imprisonment.

14. You acted as a wild beast and cut your wife in front of your little child.

15. On the invitation of your counsel, I perused your cautioned statement to police. I wish to reproduce some of the portion as below.

Q112: What happened after that?

A: I punched her with my right hand.

Q115: What about Naca?

A: They both fell down.

Q116: When she fell down did she stand up again?

A: She was shocked by the punched so she sat down.

Q119: What was your wife doing when you run for your knife?

A; She was sitting down on the river maybe she was dizzy because of the punch I gave her.

Q122: Who knife was it?

A: Mine.

Q123: Who hide the knife there?

A: Myself.

Q125: Why did you hide the knife there?

A: I always hide it there because it is easier to use.

Q133: That simply means that it has been a long time you have been angry about your wife so you think you want to end her life. Is that right or not?

A: Yes.

Q135: What did Leilani do when she saw you bringing the knife?

A: She called out "Sanaila meu bula" meaning Sanaila I want to live, "Daddy meu bula" meaning Daddy I want to live.

Q136: What did you do to your wife?

A: I want to chop her neck but she put her hands up and the knife landed on her wrist and it fell out.

Q138: How many times did you chop your wife?

A: More than two but about 4 times.

A: I saw her left hand falling off to the river and some deep injuries to her left hand and breast.

Q140: What did you do when your wife was injured?

A I ran away.

16. Now I consider the following aggravating factors.

1. You have attacked the victim who is your de facto wife with hand and made her dizzy and fell in the river.

2. You had knife hidden near the bank of the river and you used the knife to attack the victim.

3. You attacked your unarmed wife with a cane knife several times.

4. You cut the wife's hand and severed the left hand.

5. You cut the right hand and injured it.

6. You cut the breast of the victim.

7. You cut the thighs of the victim.

8. You attacked your wife, when your child who was 4 years old was watching.

9. You kept on attacking the victim when she was crying for help as "Sanaila meu bula" meaning Sanaila I want to live, 'Daddy meu bula' meaning daddy I want to live.

10. After the attack you ignored your wife and your child, you ran away when they were in the river.

17. Considering all above aggravating factors, I increase 10 years. Now your sentence is 15 years.

18. Now I consider your mitigating factors.

1. You pleaded guilty at a very early stage of the trial and saved the Court time and resources.
   
2. You are remorseful.
   

100. You claim you are suffering from your accident happened in March 2010.
     

4. You were angry with your wife because she has not properly treated you.
   

Considering all above factors, I reduce 4 years from your sentence. Now your sentence is 11 years.

19. Since you are not a first offender, I do not inclined to grant any further deduction to you.

20. I am mindful that you have pleaded at very early occasion. But considering the facts of the case my conscience does not permit me to impose a lenient punishment to you, therefore I fix your sentence at 11 years imprisonment.

21. You have 30 days to appeal.

S. Thurairaja
JUDGE

Solicitors: - Office of the Director of Public Prosecutions for State
- Office of Maqbool & Company for Accused