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State v Masicola [2015] FJHC 411; HAC081.2014S (5 June 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 081 OF 2014S

STATE

vs

JOELI MASICOLA

Counsels : Mr. T. Qalinauci for State
Mr. P. Tawake for Accused
Hearings : 13 February and 17 April, 2015
Sentence : 5 June, 2015

SENTENCE

1. On 13 February, 2015, in the presence of your counsel, you pleaded guilty to three counts in the following information:
   

COUNT1

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

JOELI MASICOLA on the 21st day of February 2014 at Nasinu in the Central Division struck JONE NABAISILA with a cane knife causing his death and at the time of striking JONE NABAISILA, JOELI MASICOLA intended to cause the death of JONE NABAISILA when striking him with a cane knife.

COUNT 2

Statement of Offence

ATTEMPTED MURDER: Contrary to section 44 and 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

JOELI MASICOLA on the 21st day of February 2014 at Nasinu in the Central Division attempted to cause the death of TAVENISA LEWAVAVAI by striking her with a cane knife and at the time of striking TAVENISA LEWAVAVAI, JOELI MASICOLA intended to cause her death.

COUNT 3

Statement of Offence

ACTS INTEDED TO CAUSE GRIEVOUS HARM: Contrary to section 255(a) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOELI MASICOLA on the 21st day of February 2014, at Nasinu in the Central Division, with the intention to cause grievous harm to KARALAINI LOALOA, unlawfully wounded KARALAINI LOALOA by striking her hand with a cane knife.

2. On 17 April 2015, the prosecutor read the following summary of facts in court:
   

"...The defendant is Joeli Masicola (33 years old in 2014) and he was residing at Sakoca Settlement, Nasinu in 2014. He is legally married to Tavenisa Lewavavai (aged 28 years in 2014) and they have been legally married for about 4 years but they do not have any children.

In December 2013 Tavenisa did not stay with her husband anymore and separated from him. She then went to stay with her aunty namely Karalaini Loaloa (aged 40) at Kilikali Settlement along Ratu Dovi Road, Nadera in Nasinu.

Tavenisa became involved in a relationship with a man named Jone Nabaisila (aged 38 years) and they both stayed with her aunty at Kilikali Settlement, Nadera in Nasinu.

On 21st February 2014 at about 1am, the defendant was at Kilikali Settlement, Nadera in Nasinu asking for a cane knife. The defendant had approached a resident there but was informed that they did not have one.

The defendant then went to another settlement namely Veirasi Settlement, Nadera which is 1 – 2 kilometers away. It was about 2am now on the 21st of February 2014. At Veirasi Settlement, the defendant managed to obtain a cane knife from a house there and then left the area without saying anything to anyone.

Between 2am to 3am on that same day, the defendant returned to Kilikali Settlement and entered the house belonging to Karalaini Loaloa who was sleeping at the time. Tavenisa Lewavavai and Jone Nabaisila were also asleep inside the house at the time in the sitting room.

When the defendant entered the house, he struck Tavenisa Lewavavai first with the cane knife. She was still lying down when she was struck. The defendant struck Tavenisa with the cane knife on the right side of her face, the back of her left shoulder and the right hand amputating or severing her small right finger (or "pinky" finger).

The defendant then turned his attention to Jone Nabaisila who was also lying down. The defendant struck Jone Nabaisila several times namely on the left side of his head, left arm, left hand, abdomen, back and left leg.

Karalaini Loaloa (the aunty) woke up to the voice of her niece Tavenisa saying "Joeli don't". The aunty stood up enquiring what happened and this was when the defendant swung the cane knife at her. When the knife was swung at her by the defendant, Karalaini Loaloa lifted her right hand to defend herself and the knife landed on her right hand. Her right pinky finger was severed or amputated as a result of the cane knife landing on her hand and she also received a cut as well to her right ring finger.

The defendant then ran away from the house thereafter.

Tavenisa Lewavavai, Jone Nabaisila and Karalaini Loaloa were all bleeding as a result of the attack by the defendant. Particularly for Jone Nabaisila, his intestines were protruding because of the cut he received to his abdomen and he was moaning in pain.

The police were called a few minutes later and secured the scene. Tavenisa Lewavavai and Karalaini Loaloa had to go to Colonial War Memorial (CWM) hospital because of their injuries. For Jone Nabaisila, it was noticed as if he ws "giving his last breath" or struggling to breathe. He did not say a word. He too was taken to the hospital minutes after the attack but passed away later on the same day at about 3am. The cause of death for Jone Nabaisila in the view of the pathologist Dr. James Kalougivaki was excessive blood loss due to multiple slashed (cut) injuries to the deceased. The post mortem was conducted on 22nd February 2014.

Tavenisa Lewavavai was medically examined on the same day at around 4am at the Colonial War Memorial Hospital by Dr. Timoci Qereqeretabua. The doctor found that there was a deep laceration across the right side of her face from the ear to the mouth; an incisional wound on her left shoulder; and a partial amputation of her right small finger. The injuries were consistent with the use of a sharp knife.

Karalaini Loaloa was medically examined on the same day too at around 4.30am at the Colonial War Memorial Hospital by Dr Timoci Qereqeretabua as well. The doctor found that she had a partial amputation of her right little finger and laceration of her right ring finger. The injuries were consistent with the use of a sharp knife.

At about 4am on that same day after having attacked Tavenisa Lewavavai, Jone Nabaisila and Karalaini Loaloa with a cane knife at Kilikali Settlement, the defendant returned to Veirasi Settlement and informed one of the residents that he is going to the Police Station and that the cane knife he had used is in a cassava patch at Kilikali Settlement.

Later, the defendant then surrendered himself voluntarily to Police at the Valelevu Police Station on the same day 21st February 2014 at about 4am. He informed the police officer who was on duty at the time namely Mikaele Ratuvou that his wife was having a de-facto relationship and he "stabbed them". He was immediately placed under arrest. He also informed the police that he had thrown the cane knife he used near the road side at Kilikali Settlement.

At the scene, a search was made by police and the cane knife with a brown handle was found on the same day on 21st February 2014 at around 5am at Kilikali Settlement in a drain. It was later identified on 22nd February 2014 to police by Tui Safata (a resident at Veirasi Settlement, Nadera) that it had gone missing earlier because the defendant had taken it.

After surrendering to police, the defendant Joeli Masicola was interviewed under caution at the Valelevu Police Station commencing on the same day on 21st February 2014 in the Itaukei language. He was allowed to speak to his pastor in the beginning of the interview. He understood his rights and admitted that he is married to Tavenisa Lewavavai for more than 3 years and they do not have any children. He said that he is not suffering from any sickness. He said that his wife had gone to stay with her aunty at Kilikali Settlement 2 weeks before the 20th of February 2014. He said that he gave his wife permission to stay at Kilikali. He admitted calling his wife on 20th February 2014 at around 11pm on his phone. His wife answered and asked him what he wanted and the defendant replied, asking her when she will return home. He said that his wife then told him not to disturb her as it is midnight and she turned off the phone. He called her again but a "male person" picked up the phone and told him not to disturb them and not to call again. He requested the male person to give the phone to his wife and when the defendant's wife answered, his wife told him not to call them as they are having sex. The defendant told police that he heard his wife moaning and having sex and when this was happening the phone was on for a while and then it went off. The defendant told police that he called a third time and asked his wife whether it was true and the wife replied saying "what else" and the phone was turned off. He tried calling her again but there was no answer. The defendant told police that he made up his mind to see them and find out the truth and if he finds them sleeping together he will kill them both. So he walked from Sakoca to Kilikali Settlement and that was about 12 midnight. He reached Kilikali and went to the house where his wife was. He said that he climbed up the window of the house on a used fridge and when he drew the curtain he saw the man sleeping between his wife and Karalaini. The man was wearing shorts but no shirt and his wife was wearing her clothes. When he saw them he wanted to look for a knife. He went to a house at Veirasi, Qarase Road and he took a knife from a house there. He told police that the knife had a small blade and wooden handle. When police showed him a knife during the interview, he agreed that it was the same one. He admitted trying to get a knife from Kilikali Settlement but he couldn't and so he went to Veirasi Settlement. He returned to Kilikali where his wife was with a knife, he saw that they were still sleeping. He managed to open the door to the house and when he entered, started striking his wife first with the knife who he said was closest to the door. He doesn't know which part of her body he struck with the knife because he said that he was really angry. He struck his wife twice and then he struck the man 4 times. He also does not know where he struck the man. Whilst he was striking them he was saying that they now know the consequence of having extra marital affairs. He also admitted striking "Kara" with the knife. He then left the house and ran to the road where he threw the knife into a drain. During the scene reconstruction, he showed police the route he took to Kilikali, the window he looked through, the house where he got the knife from, how he struck his wife, the place where he threw the knife and the route he took to the Valelevu Police Station. He admitted that when he reached the police station he told them that his wife was having an affair with another man and he had struck them with a knife. He said that he did it because he was "heartbroken". He said that his wife has had extra marital affairs with other men 3 times. In his interview, he also sought forgiveness for what he had done..."

3. The court then checked with defence counsel, on whether or not the accused agreed with the summary of facts, and whether or not, he had admitted all the elements of the offence of "murder" (count no. 1), "attempted murder" (count no. 2) and "act intended to cause grievous harm" (count no. 3). Through his counsel, the accused admitted the particulars of offence in the above three counts. Through his counsel, the accused admitted striking the deceased, Jone Nabaisila, with a cane knife, at the material time, and that caused serious injuries to the deceased, leading to his death. He admitted, through his counsel that, at the time, he intended to cause the deceased's death (count no. 1).
   
4. On count no. 2, through his counsel, the accused admitted, that at the material time, he attempted to cause the death of his wife, Tavenisa Lewavavai, by striking her with a cane knife, thereby causing her serious injuries, and at the time, he intended to cause her death. On count no. 3, through his counsel, the accused admitted that, at the material time, with the intention of causing Karalaini Loaloa grievous harm, unlawfully wounded her hand by striking it with a cane knife. Because of the above admissions, the court found the accused guilty as charged on all counts, and convicted him accordingly on those counts.
   
5. The offence of "murder" (count no. 1) is often said to be at the top of the criminal calendar. To preserve human life is a fundamental objective in preserving and maintaining the wellbeing of our society. Our lawmakers had prescribed a mandatory penalty of life imprisonment for those found guilty of murder. The court is empowered "to set a minimum term to be served before a pardon may be considered" (Section 237 of the Crimes Decree 2009). A pardon may only be granted by His Excellency The President of the Republic of Fiji (Section 119 of the 2013 Fiji Constitution). Minimum terms for murder had been set between 26 to 11 years imprisonment, depending on the mitigating and aggravating factors: Waisale Waqanivalu v The State, Criminal Appeal No. CAV 005 of 2007, Supreme Court, Fiji; The State v Navau Lebobo, Criminal Case No. HAC 016 of 2002, High Court, Suva: State v Anesh Ram, Criminal Case No. HAC 124 of 2008, High Court, Suva and State v Tukana, Criminal Case No. HAC 021 of 2009, High Court, Lautoka.
   
6. The offence of "attempted murder" (count no. 2) is also viewed seriously by the law makers of this country. Section 44(1) of the Crimes Decree 2009 reads as follows, "...A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted, has been committed..." The observation made in paragraph 5 hereof on the sentence for murder appear to apply to "attempted murder", by virtue of Section 44(1) of the Crimes Decree 2009.
   
7. "Acts intended to cause grievous harm" (count no. 3) is also viewed seriously by the law makers of this country. It carries a sentence of life imprisonment. However, case laws appear to have set a tariff of 2 to 6 years imprisonment: see The State v Pauliasi Yasa, Criminal Case No. HAC 044 of 2012S, High Court, Suva. The final sentence will depend on the aggravating and mitigating factors.
   
8. In this case, the aggravating factors, were as follows:
   
   • (i) Domestic Violence: This is a case of extreme domestic violence. Although the accused's relationship with his wife was in turmoil at the material time, killing as a remedy is not justified. People must learn not to use killing as a remedy to resolving domestic disputes. Being sentenced to life imprisonment is not worth it, when taking a person's life, to remedy a domestic disagreement. The accused must not complain when his liberty is taken to pay for his crime.
     
   • (ii) The use of a cane knife: The use of a cane knife in committing a crime is always a serious matter. The court must act to discourage people using cane knives in committing crimes.
     
   • (iii) Utter disregard for the 3 victim's right to personal safety: By killing the deceased, and seriously injuring his wife and Karalaini, the accused had shown an utter disregard for their right to personal safety and their right not to be harmed.
     
   • (iv) The accused carefully planned and carried out the killing of the deceased, and injuring his wife and Karalaini. He found out his wife was having an affair. He planned to kill his wife and her new partner. He went about getting a cane knife. Then he intentionally kill the deceased, and seriously injured his wife and her aunty.
     
9. The mitigating factors were as follows:
   
   • (i) At the age of 34 years, this is your first offence;
     
   • (ii) Although the case was first called on 10 March, 2014, by pleading guilty on 13 February 2015, you nevertheless saved the court's time and the need for your wife and Karalaini to re-live their ordeal, by giving evidence in court.
     
   • (iii) You have been remanded in custody since 24 February 2014, that is, 1 year 3 months 11 days ago.
     
10. On count no. 1 (murder), there is only one mandatory sentence, that is, life imprisonment. I therefore sentence you to life imprisonment. In fixing a minimum term to be serve before a pardon may be considered, I start with 20 years imprisonment. I add 3 years for the aggravating factors, making a total of 23 years imprisonment. I deduct 2 years from the above for pleading guilty, leaving a balance of 21 years imprisonment. For time spent on remand, I deduct another 1 year 4 months, leaving a balance of 19 years 8 months. For being a first offender, I deduct 8 months leaving a balance of 19 years imprisonment.
    
11. On count no. 2 (attempted murder), I sentence the accused to the mandatory life imprisonment. I would fix the minimum term to be served as 14 years, before a pardon may be considered.
    
12. On count no. 3 (act intended to cause grievous harm), I sentence the accused to 4 years imprisonment.
    
13. The summary of your sentence are as follows:
    

14. Because of the totality principle of sentencing, I direct that all the above sentences to be made concurrent to each other, that is, a final sentence of life imprisonment, with 19 years to be served, before a pardon may be considered.
    
15. Mr. Joeli Masicola, for murdering Jone Nabaisila; attempting to murder Tavenisa Lewavavai and acting with intent to cause grievous harm to Karalaini Loaloa, on 21 February 2014 at Nasinu in the Central Division, I sentence you to a final sentence of mandatory life imprisonment, with a minimum term of 19 years imprisonment to be served, before a pardon by His Excellency the President of the Republic of Fiji, may be considered.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.