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State v Tupou [2010] FJHC 565; HAC47.2010 (16 December 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 47 OF 2010

BETWEEN:

THE STATE

AND:

NIKASIO TUPOU

Counsels : Ms. Nayomi Wickramasakera and Mr. S. Babitu for the State
Ms. S Vaniqi for the Accused (Legal Aid Commission)

Date of Hearing: 7th, 8th, 9th, 10th, 13th, 14th December, 2010

Date of Sentencing : 16th December 2010

SENTENCING

1. You Nikasio Tupou stand convicted for murdering your female partner Esita Kele, contrary to Section 237 of the Crimes Decree 44 of 2009. I pass upon you the mandatory sentence of life imprisonment.
   
2. You were having an affair with a married woman Esita Kele, she got pregnant because of you. When she wanted to go back to her husband you got annoyed, stabbed and slashed her to death.
   
3. Section 18 (1) of the Sentencing & Penalties Decree states as follows:
   

"Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole".

4. Pursuant to Section 18 (1) of the Sentencing & Penalties Decree, I decided to set a minimum term of imprisonment. It does not mean that you should be released after the non parole period. The relevant authorities will decide whether you should be released, if so when to be released.
   
5. On considering the submissions made by the State you have committed a serious crime. I also agree that you have committed a heinous crime against a vulnerable defenseless woman who was your living partner and pregnant.
   
6. I am in possession of the submission made by the defence counsel. I should place it on record that you have co-operated from the inception of the investigation and trial. You were not wasting the precious time of the Court and the Counsels.
   
7. You were remorseful to the extend that you attempted to commit suicide twice.
   
8. You have a dependant child and your mother. You claim this had happened due to anger.
   
9. State submits that you have 34 previous convictions all of them are before March 1998. I do not consider it as aggravating factor but I don't intent to give an allowance as 1st offender.
   
10. Considering the aggravating factors and mitigating circumstances I sentence you to life imprisonment for murder of Esita Kele and I fix 16 years as non parole term. The relevant authorities may consider your release thereafter if necessary.
    

S Thurairaja
Judge

At Suva

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