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State v Balekivuya - Sentence [2011] FJHC 467; HAC095.2010 (12 August 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 095 OF 2010S

THE STATE

v.

1. SALESI BALEKIVUYA
2. SAIMONI TUKANA

Counsels : Ms. N. Wickramasekera and Ms. M. Tikoisuva for the State
Mr. T. Muloilagi for Accused No. 1
Ms. B. Malimali for Accused No. 2

Hearings : 4th to 26th and 29th July, 2011
Summing Up : 1st August, 2011
Judgment : 5th August, 2011
Sentence : 12th August, 2011

SENTENCE

1. Following a trial lasting approximately 18 days, Salesi Balekivuya (accused No. 1), you have being found guilty and convicted of the following offences:

(i) Count No. 1: "Damaging property", contrary to section 369(1) of the Crimes Decree 2009. You were convicted of damaging Salesh Chand's car, registration No. ED 648, on 4th May 2010, at Grantham Road, Raiwaqa;

(ii) Count No. 3: "Attempted Robbery", contrary to sections 44(1) and 310(1)(a)(i) of the Crimes Decree 2009. You were convicted of attempting to rob Ashwin Chand on 4th May 2010, at 67 Shalimar Street, Samabula.

(iii) Count No. 5: "Murder", contrary to section 237 of the Crimes Decree 2009. You were convicted of murdering Krishneel Singh on 4th May 2010, at Shalimar Street, Samabula.

2. Saimoni Tukana (accused No. 2), in the same trial, you were found guilty and convicted of the following offences:

(i) Count No. 2: "Attempted Robbery", contrary to sections 44(1) and 310(1)(a)(i) of the Crimes Decree 2009. You were convicted of attempting to rob Rajinesh Chand on 4th May 2010, at 67 Shalimar Street, Samabula;

(ii) Count No. 4: "Theft", contrary to section 291(1) of the Crimes Decree 2009. You pleaded guilty to and were convicted of stealing Krishneel's mobile phone on 4th May 2010, at Shalimar Street, Samabula;

(iii) Count No. 5: "Manslaughter", contrary to section 239 of the Crimes Decree 2009. You were originally charged with "murder", but you were found guilty of the lesser offence of "manslaughter" of Krishneel Singh, on 4th May 2010, at Shalimar Street, Samabula.

3. The brief facts of the case were disturbing. At mid morning on Tuesday, the 4th of May 2010, both of you started drinking alcohol with others at the Jittu Estate Youth Hall. Beer and rum were consumed. Rolls of marijuana were smoked. The drinking went on until late in the afternoon. Saimoni, you decided to go to 65 Shalimar Street, Samabula to loan some money to buy more alcohol. This was after 5pm on 4th May 2010. Krishneel Singh (deceased), Rajinesh Chand and Ashwin Chand were finishing their studies at Fiji National University, Samabula, at the time. Krishneel's father requested Krishneel to pick up his tools, at his house at 67 Shalimar Street, Samabula. Krishneel was driving a white Station wagon, registration No. FP 351. Rajinesh was the front seat passenger, while Ashwin was sitting behind him in the back seat.

4. Krishneel arrived at 67 Shalimar Street, Samabula after 5pm. He parked his car at the top of the driveway. At that time, you two accuseds were standing in front of 65 Shalimar Street, beside Krishneel's car. Saimoni, you then started the problem by deciding to attack Rajinesh Chand and rob him. You went to Krishneel's parked car, demanded money from Rajinesh and started to attack him. Salesi, you then joined in and attacked and tried to rob Ashwin, in the back seat. Krishneel was returning, carrying a spade. He saw you Saimoni attacking Rajinesh. He defended Rajinesh by hitting you with the spade.

5. You later held onto the spade, and the two of you struggled for the same. Salesi, you came to assist Saimoni, and all of you struggled for the spade. Saimoni you repeatedly punched Krishneel in the face and body. You fell down with Krishneel. Both of you stood up again. You punched Krishneel to the ground. Salesi, you then took the spade and repeatedly struck Krishneel in the head. Saimoni you also kicked Krishneel in the head. Then you two went away. Salesi was still angry. He returned and repeatedly hit Krishneel's head again with the spade. Saimoni, you came and stopped Salesi and took him away. Krishneel by then was lying in a pool of blood. He was taken to CWM Hospital. The doctors tried to revive him. He had suffered serious skull and brain injuries. He was pronounced dead at 6.30pm on 4th May 2010.

6. The offence of "murder" carries the mandatory penalty of life imprisonment (section 237, Crimes Decree 2009). The court has the power to set a non-parole period to be served, before a pardon may be considered. However, the non-parole period for murder varies widely, depending on its own peculiar set of facts. In Waisale Waqanivalu v The State, Criminal Appeal No. CAV 005 of 2007, Supreme Court, on 5 counts of murder and 1 of attempted murder, the accused was given 19 years non-parole period on each murder count, and 10 years consecutive on a pending prison sentence, total non-parole period would be 26 years. In The State v Navau Lebobo, Criminal Case No. HAC 016 of 2002, High Court, Suva, the non-parole period was 20 years. Likewise in State v Anesh Ram, Criminal Case No. HAC 124 of 2008S, High Court, Suva; also in State v Bharat Lal & Others, Criminal Case No. HAC 061 of 2009S, High Court, Suva. In State v Tukana, Criminal Case No. HAC 021 of 2009, High Court, Lautoka, the non-parole period was 11 years. The non-parole period set will depend on the mitigating and aggravating factors.

7. Manslaughter carries the maximum sentence of 25 years imprisonment (section 239, Crimes Decree 2009). In Kim Nam Bae vs The State, Criminal Appeal No. AAU 0015 of 1998, the Fiji Court of Appeal said the following:

"...We have been referred to several cases of sentence on manslaughter in the High Court as well as in the Court of Appeal to enable us to determine the correct range of sentence for this type of offence. With respect, this is the correct approach that should be taken by the courts. The task of sentencing is not an exact science which is capable of mathematical calculation. This is particularly so with manslaughter where the circumstances and the offender's culpability can vary greatly from case to case. An appropriate sentence in any case is fixed by having regard to a variety of competing considerations. In order to arrive at the appropriate penalty for any case, the courts must have regard to sentences imposed by the High Court and the Court of Appeal for offences of the type in question to determine the appropriate range of sentence.

The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence where there may have been grave provocation to 12 years imprisonment where the degree of violence is high and provocation is minimal. It is important to bear in mind that this range covers a very wide set of varying circumstances which attract different sentences in different manslaughter cases. Each case will attract the appropriate sentence within the range depending on its own facts".

The actual sentence will depend on the mitigating and aggravating factors.

8. "Attempted robbery" carries the maximum sentence of 15 years imprisonment. The tariff in this type of cases is a sentence between 8 to 14 years imprisonment. I agree with and accept His Lordship Justice Goundar's statements in State v Elia Manoa, Criminal Case No. HAC 108 of 2009 and 61 of 2010, High Court, Suva. The actual sentence will again depend on the mitigating and aggravating factors.

9. "Theft" carries a maximum sentence of 10 years imprisonment, while "damaging property" carries a maximum sentence of 2 years imprisonment. The sentence for these offences will follow the sentence in the more serious charges of murder and manslaughter, and will be made concurrent.

10. For you Salesi, the aggravating factors were as follows:

(i) The violence you unleased on Krishneel Singh on 4th May 2010, when you repeatedly struck his head with the sharp edge of the spade, showed your utter disregard for Krishneel's life. A year after the deed, at trial time, you said you did not intent to kill Krishneel. However, your conduct when you repeatedly hit Krishneel with the spade showed clearly, you intended to kill him. The post mortem report showed Krishneel suffered 21 external injuries and 8 internal injuries. Most of the injuries centered around his head, skull and brain. In layman's term, you simply crack opened his skull, causing extensive injuries and bleeding in his brain, leading to his death, approximately 1 hour after the assault. You showed no mercy to a fellow human being, when you repeatedly hit him with the spade. You said, you were angry and wanted to release your anger on him. Krishneel is dead, but you are alive. However, you will have to pay for your crime with the extensive loss of your liberties. I hope you don't complain about this, because you have unnecessarily taken away Mr. Adesh Singh's only son, Mr. Krishneel Singh. He cried in court while giving evidence in this case about his deceased's son. Mr. Krishneel Singh was going about his affairs lawfully on that day, when you and Saimoni put in place a chain of events that ultimately led to his death.

11. The mitigating factors in your case Salesi were as follows:

(i) You were 19 years old at the time of the offence;

(ii) You have being remanded in custody for about 15 months (ie. from 7th May 2010 to 12 August 2011).

12. Saimoni, the aggravating factors for you, were as follows:

(i) You were 29 years old at the time of the offence. In fact, you were 10 years older then Salesi, at the time. One would have thought that you are the more mature of the two of you, and would have made wise decisions at the time. Although you two have been drinking since mid morning on 4th May 2010, a Tuesday, being drunk is no excuse to commit a criminal offence. You started the problem that day. Krsihneel, Rajinesh and Ashwin were going about their affairs lawfully that day. You decided to rob Rajinesh. The assessors rejected your lame excuse that they were swearing at you. You wanted money to buy more drinks, and you showed utter disregard to Rajinesh and Krishneel's rights to be left alone. Of course, Krishneel was defending Rajinesh when he hit you with the spade. It was not a hard hit, as your medical report showed no injuries, as a result of being hit by the spade. You then struggled with Krishneel for control of the spade, and repeatedly gave him powerful right hand punches. Krishneel's post-mortem report showed he suffered 21 external injuries and 8 internal injuries. As stated before, most of the injuries were on his head, skull and brain. According to Doctor Gounder, the Pathologist, external injuries No. 1 to 9, 12, 13 and 18 were caused by a blunt object, kicks and fists. Your actions contributed to the death of Krishneel Singh. You assisted in the attack on Krishneel, and your actions weakened Krishneel, enabling Salesi to deliver the killer blow with the spade. Your actions showed your utter disregard for Krishneel's life, although the assessors found that you had no intention to kill Krishneel, but you had the intention to cause him serious harm. You are alive, while Krishneel is dead and for your deeds, you will have to pay with the loss of your liberties.

13. The mitigating factors for you Saimoni were as follows:

(i) on Salesi's second attack on Krishneel, you came and stopped him, and took him away. This showed you had some good in you.

(ii) you were educated to Form 6 level, married with a 4 year old son.

14. On the "murder" charge (count No. 5), Salesi you are sentenced to the mandatory life imprisonment. On the non-parole period, I start with 15 years. For the aggravating factors, I increase the 15 years by 7 years to 22 years. For the mitigating factors, I deduct the 22 years by 2 years to 20 years. Salesi, you are to serve a non-parole period of 20 years.

15. On the manslaughter conviction (count No. 5), Saimoni, I start with a sentence of 9 years imprisonment. For the aggravating factors, I add 6 years, making a total of 15 years. For the mitigating factor, I decrease the 15 years by 3 years, to 12 years imprisonment. Saimoni, you are sentenced to 12 years imprisonment for the manslaughter of Krishneel Singh. You are to serve a non-parole period of 10 years.

16. The above sentences to you Salesi and Saimoni are designed to re-emphasis to would-be offenders the need to preserve human life. Drunkenness is no excuse to take away a person's life. When drunk, people must learn to control their behavior, so that they don't become a danger to others.

17. As for the attempted robbery charges, I start with 8 years for both accuseds. For the aggravating factors, I add 3 years, making a total of 11 years. I deduct 2 years for the mitigating factors, leaving a balance of 9 years imprisonent. Salesi and Saimoni, on your attempted robbery convictions, you are each sentenced to 9 years imprisonment.

18. On the theft charge, Saimoni, you are sentenced to 9 months imprisonment.

19. Salesi, on the damaging property charge, you are sentenced to 9 months imprisonment.

20. In summary, your sentences are as follows:

(i) Count No. 1: Damaging Property:

(a) Salesi - 9 months imprisonment

(ii) Count No. 2: Attempted Robbery:
(a) Saimoni - 9 years imprisonment

(iii) Count No. 3: Attempted Robbery:
(a) Salesi - 9 years imprisonment

(iv) Count No. 4: Theft:
(a) Saimoni - 9 months imprisonment

(v) Count No. 5: Murder:
(a) Salesi - mandatory life imprisonment. To serve a non-parole period of 20 years.

(vi) Count No. 5: Alternative offence of Manslaughter:
(a) Saimoni - 12 years imprisonment. To serve a non-parole period of 10 years.

(vii) All the sentences mentioned above are concurrent to each other, that is, for Salesi, a total sentence of life imprisonment and to serve a non-parole period of 20 years imprisonment; for Saimoni, a total sentence of 12 years imprisonment and to serve a non-parole period of 10 years.

Salesi Temo
JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitors for Accused No. 1 : Mr. T. Muloilagi, Barrister & Solicitor, Suva
Solicitors for Accused No. 2 : Pacific Chambers, Barristers & Solicitors