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State v Niume - Sentence [2011] FJHC 630; HAC010.2010 (6 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 010 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

1. EPARAMA NIUME
2. JOVECI NAIKA
4. APENISA LINO
ACCUSED PERSONS

Counsel: State - Mr. M. Maitava
Mr. J. Singh
1st Accused - Ms L. Lagilevu
2nd Accused - Mr. T. Muloilagi
4th Accused - Ms V.M. Savou

Date of Hearing: 24/08 - 25/08/11, 29/08 - 31/08/11, 01/09-02/09/11, 05/09 - 08/09/11, 12/09 -13/09/11, 19/09 - 21/09/11
Date of Summing Up: 23 September 2011
Date of Judgment: 26 September 2011
Date of Sentence: 06 October 2011

SENTENCE

[1] The 1st accused Eparama Niume and the 2nd accused Joveci Naika, you are both convicted of the murder of Ashok Chand and Mohini Lata.

[2] The victims Ashok Chand and Mohini Lata were running a Kura Soap and Janola Factory in Valelevu. The 2nd accused was employed by the victims in their factory. You planned to rob the victims and entered their factory during day time when the victims were in their house, which is upstairs in the factory building. Both of you acting in joint enterprise murdered both Ashok Chand and Mohini Lata. Ashok Chand was stabbed 17 times with a knife and Mohini Lata was stabbed 13 times. When you could not find the safe which you came to rob, a T- shape metal rod was forcefully driven into the vagina of Mohini Lata which ruptured the posterior vagina directing upwards and stopping short of the liver. This shows the brutality with which you committed the offences.

[3] The manner the offences of murder were committed was gruesome and this was a heinous crime. This kind of horrendous crimes should not be condoned and the sentence imposed on accused should necessarily reflect the denouncement by court.

[4] The offence of murder carries a mandatory sentence of life imprisonment. However, in terms of Section 18 (1) of the Sentencing and Penalties Decree 2009, the Court must fix a non – parole period, during which the accused is not entitle to be released on parole. I consider the above circumstances and the submissions made by the Counsel in mitigation when deciding the non parole period.

[5] The 1st accused Eparama Niume, you are 25 years old and you are the father of a 3 year old daughter and a 8 month old son. You are self employed as a farmer and you have completed the certificate in Electronics. I also consider what was said on behalf of you by your character referee Rev. Rt. Orisi V. Qica. You have one previous conviction on larceny of cattle. I also consider that you the 1st accused is the person who inflicted the 17 stab injuries on Ashok Chand, 13 stab injuries on Mohini Lata and also who inserted the T shape metal rod inside the vagina of Mohini Lata.

[6] Considering the above circumstances and the aggravating and mitigating factors, I sentence you the 1st accused, on each count 1 and 2 to life imprisonment. I order that you are not eligible to be released on parole until you have served 25 years of imprisonment.

[7] The 2nd accused Joveci Naika, you are now 19 ½ years old. However, you were 17 years and 9 months old when you committed the offences in Count No. 1 and 2. You are the only child of a single parent. You are a 1st offender and has no previous convictions. You just completed Form 6 and were trying to earn some money during the holidays to assist your single mother.

[8] Currently you are a student of Fiji National University studying Marine and Port Industry. You are remorseful for what happened. I consider that you were part of the joint enterprise to commit the murders. I also consider that you did not inflict any injuries to the deceased persons. However, you were listening to music for 2 hours in the factory premises, when the 2 dead bodies of the victims were lying inside the factory.

[9] Considering the above circumstances, the aggravating and mitigating factors and that you are a young and first offender, on each of the counts 1 and 2, I sentence you to life imprisonment. I order that you are not eligible to be released on parole until you have served 14 years of imprisonment.

[10] The 4th accused Apenisa Lino, you stand convicted for the offence of Accessory after the fact to murder, in Count No. 3. You were told by the 1st accused that he killed the deceased couple. The knife with blood, which was used to stab the deceased persons and the clothes with blood, which the 1st accused was wearing at the time of stabbing the deceased persons, were brought to your house by the 1st accused. You assisted the 1st accused to conceal the evidence by allowing him to keep the knife at your house and also allowing the first accused to put the said clothes with blood in your garbage dump.

[11] I also consider the mitigating factors submitted on behalf of you. You are a 38 year old farmer. You are also a caregiver and you look after 3 elderly children who are handicapped and mentally challenged. You earn $20 per week.

[12] The maximum sentence for the offence of Accessory after the fact to murder is 3 years imprisonment. There are no sentencing guideline judgments for this offence.

[13] In Narayan V Reginam [1980] 26 FLR 165 (30th September 1980) on appeal, the accused was sentenced to 18 months imprisonment where he assisted in concealing the body of the deceased.

[14] In State v Vulaca [2008] FJHC; HAC 120S. 2007S (23 April 2008) a Police Sergeant who assisted the fellow officers to cover-up the incident which disturbed and hindered the investigation, was sentenced to 2 years imprisonment.

[15] In this case you, the 4th accused knew that the knife was used to kill the deceased persons. Also you knew that the said blood in the clothes, were of the two deceased persons as you were told by the 1st accused. It was evident that you were part of the planning of the robbery and however, you did not take part in the robbery. You are not a 1st offender. You have a previous conviction for the offence of Assault Occasioning Bodily Harm in Suva on 27/02/2002 and therefore you are not entitle to a discount on your previous good behavior.

[16] I pick 1 year as my starting point. After considering the aggravating and mitigating factors I sentence you to imprisonment for 1 year. I further deduct 3 months for the period you were in remand. Considering the circumstances of the case I do not find that this is a fit case for a non custodial sentence. Therefore finally you are sentenced to 9 months imprisonment.

[17] The 2nd accused Joveci Naika you stand convicted on your own plea of guilty for the offence of unlawful use of motor vehicle.

[18] On 31st day of December 2009 at about 8pm, you with others went to the warehouse of Ashok Chand and drove away his vehicle registration no. "Kura 01", which was parked outside the factory.

[19] You were chased and stopped by LTA and Police officers at Koronivia Road. Your aggravating factors are, that you took the vehicle knowing that the owner was murdered and further you did not stop the vehicle at LTA check point, so that the LTA officers had to chase you to stop you.

[20] Your mitigating factors are that you are a first offender, young offender of 17 years and 9 months old, you pleaded guilty saving time of court and the prosecution.

[21] You are the only child of a single parent. You are currently a student in Fiji National University studying Marine and Port Industry.

[22] The maximum punishment prescribed for the offence in terms of Section 292 of the Penal Code is 6 months imprisonment, or to a fine of $100 or both such imprisonment and fine.

[23] Considering the above aggravating and mitigating factors and that you are a first offender and a young offender and your early guilty plea, I sentence you to 3 months imprisonment.

[24] You had been on remand for 3 months. Acting in terms of section 24 of the Sentencing and Penalties Decree 2009, I consider that you have already served the said sentence of three months imprisonment on account of the fact that you had been held in custody in connection with the case for 3 months.

[25] Accordingly the sentences the accused would have to serve are:

1st Accused

Count No. 1

Life imprisonment with a non parole period of 25 years

Count No. 2

Life imprisonment with a non parole period of 25 years

2nd Accused

Count No. 1

Life imprisonment with a non parole period of 14 years

Count No. 2

Life imprisonment with a non parole period of 14 years

4th Accused

Count No. 3

9 months imprisonment

30 days to appeal.

Priyantha Fernando
JUDGE

At Suva
06 October 2011