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State v Lalaobouma [2022] FJHC 124; HAC 192 of 2019 (18 March 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION


Criminal Case No.: HAC 192 of 2019


STATE


V


VILIMONE LALAOBOUMA


Counsel : Mr. A Singh with Ms. S. Swastika and Mr. U. Lal for the State.

: Ms. J. Singh for the Accused.


Date of Submissions : 18 March, 2022
Date of Sentence : 18 March, 2022


SENTENCE


  1. The accused is charged with the following offences as per the amended information filed by the Director of Public Prosecutions dated 1st March, 2022:

COUNT ONE
Statement of Offence
MURDER: Contrary to section 237 of the Crimes Act 2009.
Particulars of offence


VILIMONE LALAOBOUMA on the 22nd day of October, 2019 at Lautoka in the Western Division, murdered SIUTA NIUMATAIWALU.


COUNT TWO
Statement of Offence


ROBBERY: Contrary to section 310 (1) (a) (i) of Crimes Act 2009.


Particulars of Offence

VILIMONE LALAOBOUMA on the 21st day of October, 2019 at Lautoka in the Western Division, robbed BAL KRISHNA of a bag, clothes, kitchen knife and $10.00 cash and immediately before the robbery, used force on the said BAL KRISHNA.


COUNT THREE
Statement of Offence


AGGRAVATED ROBBERY: Contrary to section 311 (1) (b) of Crimes Act 2009.


Particulars of Offence

VILIMONE LALAOBOUMA on the 21st day of October, 2019 at Lautoka in the Western Division, stole 1 x Samsung J5 prime mobile phone being the property of SIMON RITESH KUMAR, and at the time of robbery had an offensive weapon with him.


COUNT FOUR
Statement of Offence


SERIOUS ASSAULT: Contrary to section 277 (b) of Crimes Act 2009.
Particulars of Offence

VILIMONE LALAOBOUMA on the 21st day of October, 2019 at Lautoka in the Western Division, resisted arrest by POLICE CONSTABLE 5784 VATILIAI TURUVA in the due execution of his duty.


COUNT FIVE
Statement of Offence


SERIOUS ASSAULT: Contrary to section 277 (b) of Crimes Act 2009.


Particulars of Offence

VILIMONE LALAOBOUMA on the 21st day of October, 2019 at Lautoka in the Western Division, resisted arrest by DETECTIVE CONSTABLE 4342 PAULA CATA in the due execution of his duty.


COUNT SIX
Statement of Offence


SERIOUS ASSAULT: Contrary to section 277 (b) of Crimes Act 2009.


Particulars of Offence

VILIMONE LALAOBOUMA on the 21st day of October, 2019 at Lautoka in the Western Division, resisted arrest by DETECTIVE CORPORAL TIMOCI VULI in the due execution of his duty.


  1. This file was first called in the High Court on 7th November, 2019. After the accused pleaded not guilty, the matter proceeded to pre-trial conference hearing and thereafter a voir dire hearing was completed and a ruling delivered. The matter was then assigned a hearing date for the trial proper.
  2. On 1st March, 2022 the matter was for hearing when the defence counsel informed the court that the accused wished to change his plea from not guilty to guilty. State counsel asked for time to amend the information filed on the basis that there were some minor changes required. On the same day the amended information was put to the accused in the presence of his counsel and he pleaded guilty.
  3. On 3rd March, 2022 the accused admitted the amended summary of facts read by the state counsel. The brief summary of facts as per the chronology of events is as follows:

Count 2 – Robbery


  1. On 21st October 2019, at around 9pm, the first victim Bal Krishna was on his way to a shop when he was met by the accused. The accused greeted the victim and had a conversation with him. After the victim began walking towards the old Lautoka Police Station the accused followed.
  2. All of a sudden the accused grabbed the victim from behind and threw him on the ground. The accused sat on the victim’s chest and punched him, thereafter he grabbed the victim’s bag and ran away (caution interview Q & A 106, 108 and 110). The victim’s bag contained a white handle kitchen knife, clothes and $10.00 cash (caution interview Q & A 110, 111, 112, 114 and 115).
  3. After the accused ran away the victim met a police officer and told him what had happened. A police patrol car then took the victim to the hospital where he was examined by Dr. Kiran. The medical report of the victim mentions swelling on the eye and laceration near the cheeks and dried blood on his nostrils (medical report of Bal Krishna is marked as TAB A).

Count 3 – Aggravated Robbery


  1. Later the same night at around 10.30 pm the second victim was talking to his cousin on his mobile phone when the accused came with the kitchen knife he had stolen earlier. The accused grabbed the victim’s Samsung J5 Prime mobile phone and ran away (caution interview Q & A 120, 121,161).

Count 4 – Serious Assault


  1. At this time the victim called out to a police officer namely PC 5784 Turuva who was nearby. The victim started his van and followed the accused with PC Turuva.
  2. The victim and PC Turuva chased the accused until he entered Nasoki Street here they lost sight of him after searching for a while PC Turuva climbed the fence of the compound where the accused had gone into.
  3. PC Turuva climbed the roof of the building and saw the accused lying on the roof (caution interview Q & A 124). At this point PC Turuva called the station and asked for backup. PC Turuva saw the accused holding a knife, he approached the accused to arrest him. At this time the accused warned him not to come any near (caution interview Q & A 167).
  4. The accused then jumped off the roof and escaped into another compound.

Count 1 – Murder


  1. Further into the night a team from Lautoka Police Station namely IP Opeti, DC Timoci Vuli, the deceased DC Siuta Niumataiwalu and DC Paulo were in the police vehicle at CID Head Quarters to pick some items.
  2. A message was received that a young man was loitering along Nasoki Street in a suspicious manner. After the team heard this, they saw the accused jumping off the car wash shed in front of the police vehicle (caution interview Q & A 125). The accused crossed the road and ran towards village 4 and took a right turn (caution interview Q & A 127).
  3. The police vehicle followed the accused until the accused was seen standing near a lamp post in Yaweni Street, Lautoka. As the vehicle went near the accused IP Opeti told the accused to stand still but he ran as soon as IP Opeti opened the police vehicle’s door (caution interview Q & A 128 & 129). As soon as the accused ran, DC Siuta (the deceased) ran after him. The accused ran into the drain and entered Churchill Park ground no. 2.
  4. The deceased gave chase and managed to grab the accused both had a tussle (caution interview Q & A 133). The accused then got on top of the deceased took out the kitchen knife and stabbed the deceased’s chest (caution interview Q & A 137). The accused then further stabbed the deceased all over the body continuously with the intention to kill him until the deceased lost his grip on the accused (caution interview Q & A 138, 140, 141, 142, 151 and 155).
  5. The deceased was rushed to the Lautoka Hospital where he was seen by Dr. Krishna. The deceased had sustained the following injuries:

1.5 cm laceration on the left side of the neck;

1.5 cm laceration on left upper side of the chest above the heart region;

1cm laceration on right shoulder;

1cm laceration on right upper arm;

1cm laceration on lower abdomen.


  1. A cardiopulmonary resuscitation was conducted three times at Lautoka Hospital, however, the deceased had passed away during the early hours of 22nd October 2019.
  2. According to Dr. Krishna the cause of death was due to multiple stabbing which led to excessive blood loss (the medical report of the deceased Siuta is marked as Tab B).
  3. A post mortem was conducted by Dr. James Kalougivaki where the main cause of death was noted as massive haemothorax. Antecedent cause of death was noted as severe penetrating traumatic chest injuries and severe multiple traumatic injuries. The external cause of death was fatal sharp force trauma (the post mortem report of the deceased Siuta is marked as Tab C).

Count 5 & 6 – Serious Assault


  1. After stabbing the deceased the accused ran towards the ticket booth and was confronted by DC Timoci Vuli and DC Paulo (caution interview Q & A 151).
  2. DC Timoci Vuli warned the accused to stop running, however, the accused did not listen and kept moving away.
  3. DC Paulo also warned the accused to stop running the accused did not listen and kept moving and tried to climb the fence. At this point DC Timoci Vuli hit the accused person’s hand with a brick that was lying on the ground. As a result the knife from the accused person’s hand fell and DC Paulo managed to arrest him after pinning him to the ground as he kept trying to free himself (caution interview Q & A 152).
  4. The Samsung J5 prime mobile phone was recovered with the kitchen knife.
  5. After considering the summary of facts read by the state counsel which was admitted by the accused, and upon reading his caution interview this court was satisfied that the accused had entered an unequivocal plea of guilty on his freewill.
  6. This court was also satisfied that the accused had fully understood the nature of the charges and the consequences of pleading guilty. The summary of facts admitted by the accused satisfied all the elements of the offences he is charged with.
  7. In view of the above, on 3rd March, 2022 this court found the accused guilty as charged for all the counts and he was convicted accordingly.
  8. The state and the defence counsel filed their sentence and mitigation submissions for which this court is grateful.
  9. Counsel for the accused presented the following personal details and mitigation on behalf of the accused:

a) The accused was 19 years of age at the time of the offending;

b) His father is a Pastor;

c) Educated up to Form 5;

d) Recovery of some stolen items;

e) Pleaded guilty although late in time;

f) Pleads for mercy and seeks forgiveness of the court;

g) Realizes his wrong doing.


AGGRAVATING FACTORS


  1. The following aggravating factors are obvious:

a) Unprovoked attack on the victims

The accused attacked an unarmed deceased with a kitchen knife whilst the deceased was executing his duty to arrest the accused. The deceased was unsuspecting and vulnerable when the accused struck the deceased several times. Similarly, the accused attacked an unsuspecting Bal Krishna (victim one) near the old Lautoka Police Station.


b) The victims were alone

The first victim Bal Krishna was on his way to the shop alone near the old Lautoka Police Station when the accused greeted the victim and had a conversation with him. The accused knew this victim was alone and he took advantage of the situation.


The second victim Simon Kumar was talking on his mobile phone when the accused came holding a kitchen knife grabbed the victim’s phone and ran away. This witness was also alone.


The third victim Siuta Niumataiwalu followed the accused to Churchill Park to arrest him. The accused attacked this victim who was also alone.


c) Use of Violence

The accused used physical violence on the first and the third victim and apprehension of fear on the second victim (Simon) by showing him the kitchen knife before snatching his mobile phone and running away.


d) No regard to property rights of others

The accused displayed no regard to the property rights of Bal Krishna and Simon Ritesh Kumar when he robbed them of their properties.


e) Victim Impact Statement

The state counsel provided two victim impact statements. One from the deceased elder sister Akesa Niumataiwalu and one from the Supervisor of the deceased Insp. Ilario Belo.


In her victim impact statement Akesa stated that her family’s life changed after the death of her youngest brother who was the favourite child of the family especially her mother. The whole family is affected by the untimely died of her brother who was financially supporting the family.

The immediate Supervisor of the deceased Insp. Belo in his victim impact statement stated that he has been personally affected by the untimely death and loss of a young colleague who was always respectful, dedicated and eager to do his work. As a mark of remembrance and to ease the pain of losing a colleague in such tragic circumstances this officer has kept a poster of the deceased in his office to ease the effect of his loss.


GUILTY PLEA


  1. The accused pleaded guilty after about 2 years and 3 months after the matter was called in this court. In Gordon Aitcheson vs. The State, criminal petition no. CAV 0012 of 2018 (2 November, 2018) the Supreme Court offered the following guidance at paragraphs 14 and 15 in regards to the weight of a guilty plea as follows:

[14]. In Rainima -v- The State [2015] FJCA 17; AAU 22 of 2012 (27 February 2015) Madigan JA observed:

“Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authoritative judgment) that the “high water mark” of discount is one third for a plea willingly made at the earliest opportunity. This court now adopts that principle to be valid and to be applied in all future proceeding at first instance.”

In Mataunitoga –v- The State [2015] FJCA 70; AAU125 of 2013 (28th May 2015) Goundar JA adopted a similar but more flexible approach to this issue:

“In considering the weight of a guilty plea, sentencing courts are encouraged to give a separate consideration and qualification to the guilty plea (as a matter of practice and not principle) and assess the effect of the plea on the accused by taking into account all the relevant matters such as remorse, witness vulnerability and utilitarian value. The timing of the plea, of course, will play an important role when making that assessment.”

[15]. The principle in Rainima must be considered with more flexibility as Mataunitoga indicates. The overall gravity of the offence, and the need for the hardening of hearts for prevalence, may shorten the discount to be given. A careful appraisal of all factors as Goundar J has cautioned is the correct approach. The one third discount approach may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.


  1. This court accepts that genuine remorse leading to a guilty plea is a substantive mitigating factor in favour of an accused, however, the guilty plea must be entered in the true spirit of remorse since genuine remorse can reduce the harshness in the final sentence (see Manoj Khera v The State, CAV 0003 of 2016 (1 April, 2016).
  2. In this case, this court does not accept that the accused has shown genuine remorse when he pleaded guilty on the day of the trial proper. The date of allegation is 21st October, 2019 and the accused did not plead guilty until 1st March, 2022.
  3. Genuine remorse is about genuinely feeling sorry for what a person has done, accepting guilt because of strong evidence and proof of the offender’s deeds and then pleading guilty is not genuine remorse per se. In this regard, the sentencing court has a responsibility to assess the guilty plea along with other pertinent factors such as the timing of the plea, the strength of the prosecution case etc. Here there is no doubt the timing of the guilty plea is late and that the prosecution had a strong case against the accused.
  4. Nevertheless, by pleading guilty the accused saved the court’s time and expenses. Bearing this in mind, the accused ought to receive some reduction for his guilty plea.

TARIFF


MURDER


  1. The sentencing regime for the offence of murder is mandatory life imprisonment fixed by law which this court cannot interfere with.
  2. The Court of Appeal in Salesi Balekivuya and another vs The State, Criminal Appeal no. AAU 81 of 2011 at paragraph 40 confirmed the above as follows:

“... There is no basis for undertaking the approach described above when the head sentence is fixed by law. Furthermore there is no basis for proceeding to determine a non-parole period for a person sentenced to the mandatory life sentence for murder since the specific sentence provision of section 237 of the [Act] displaces the general sentencing arrangements sat out in section 18 of the Sentencing and Penalties [Act]. In my judgment the reference to the court sentencing a person to imprisonment for life in Section 18 of the Sentencing [Act] is a reference to a life sentence that has been imposed as a maximum penalty, is distinct from a mandatory penalty...”


  1. However, this court has a discretion to determine the length of the minimum term the accused must serve before he may be considered for a pardon. The state counsel is seeking a minimum term to be imposed for the offence of murder on the basis of the horrific nature of the offending committed on a defenceless victim in the due execution of his duties. A minimum term is required to send a strong message of deterrence to others.
  2. The purpose of a minimum term is to assure the community and the public at large that offenders for such an offending serve a definite and meaningful period of imprisonment. A murder committed with an intention to kill will attract a longer minimum term of imprisonment than murder by recklessness.
  3. As per the court file the accused has spent 2 years, 4 months and 22 days in remand which is accounted for in imposing a minimum term.
  4. I accept, this was a callous, unprovoked attack on an unsuspecting, vulnerable person who was performing his duty as a police officer. This deceased was the third victim in a series of offending by the accused on the date of allegations in close proximity of each other.

AGGRAVATED ROBBERY


  1. The maximum penalty for the offence of aggravated robbery is 20 years imprisonment. The tariff for the offence of aggravated robbery is between 8 years to 16 years imprisonment. In the case of Wallace Wise vs The State, CAV 0004 of 2015 the Supreme Court whilst confirming the above tariff made the following comments at paragraph 25:

“The matter does not end there, we believe that offences of this nature should fall within the range of 8 – 16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers carry out their crime when they have a weapon with them”


  1. For this offence the accused is sentenced to 9 years imprisonment.

ROBBERY


24. The maximum penalty for the offence of robbery is 15 years imprisonment. For robbery accompanied by violent force the accepted tariff is from 8 years to 14 years. For robbery not accompanied by violence, the accepted tariff is from 2 years to 7 years imprisonment (see Sakiusa Rarawa v. State [2015] FJHC 324; HAA05.2015 (30 April 2015).


  1. In this case, the accused had used violence on the first victim Bal Krishna. For this offence the accused is sentenced to 8 years imprisonment.

SERIOUS ASSAULT


  1. The maximum sentence for serious assault is ten years imprisonment as per the Crimes (Amendment) Act 2018 which has amended section 277 of the Crimes Act if the accused is in possession of a dangeweapon. In this case the accused was in possession of a kitchen knife which was used to thro threaten the police officers who wanted to arrest the accused.
  2. Considering the fact that counts 4, 5 and 6 are offences of the same nature or similar nature arising I prefer to impose an aggregate sentence under section 17 of the Sentencing and Penalties Act.
  3. For all the offences this court has taken into account the objective seriousness of the offences committed, the aggravating factors, the mitigating factors, remand period of 2 years, 4 months and 22 days, the guilty plea (although late in time) in coming to the minimum term for the offence of murder, final sentence for the offences of robbery, aggravated robbery and aggregate sentence for the offences of sexual assault.
  4. In view of the above, the accused is sentenced to mandatory life imprisonment for one count of murder with a minimum term of 20 years to be served before the accused may be considered for a pardon.
  5. For the offence of robbery the accused is sentenced to 8 years imprisonment, for aggravated robbery the accused is sentenced to 9 years imprisonment and for the three offences of serious assault the accused is sentenced to an aggregate sentence of 1 year and 4 months imprisonment.

TOTALITY PRINCIPLE


  1. Considering the totality principle of sentencing if the other counts are made consecutive to the minimum term of murder then the final result on the accused will be unjust and have a crushing effect on him.
  2. The accused was 19 years of age at the time of the offending and has also spent a little over 2 years in remand hence a consecutive term to the minimum term of 20 years will not appropriate. Bearing this in mind all the sentences in counts two to six are made concurrent to the offence of murder.
  3. Mr. Vilimone you are a menace to the society, on the day in question you committed the offences of robbery, aggravated robbery and serious assault in close proximity of each other. In your quest to run away from being arrested by police officers and whilst armed with a kitchen knife you attacked a young police officer (24 years) who in the due execution of his duty had run after you to arrest you. The extent of the injuries you caused to this victim was extensive and deadly that he died at the Lautoka a few hours after your act of stabbing him.
  4. You cannot be forgiven for what you have done to all the victims. You have no respect for the law or any value for human life. Your complicity and culpability in all the offences are obvious. You had no mercy for any of the victims. It was only due to the quick action by the other police officers near the crime scene that you were apprehended.
  5. It is not only that a family has lost a caring and loving family member, but the entire Fiji Police Force has lost a courageous and an enterprising young officer. This officer in the middle of the night was bold enough to chase you alone in an endeavour to effect an arrest without thinking of his own safety. An innocent life has been lost because of your stupidity and senselessness. The attack on the deceased was intentional, and directed to his chest multiple times.
  6. There can be no lawful justification for the taking away of another human life in such circumstances this was a selfish, cold-hearted and an unprovoked attack on the victim.
  7. In summary the accused is sentenced to mandatory life imprisonment with a minimum term of 20 years to be served before he may be considered for a pardon for one count of murder to be served concurrently with one count of robbery, one count of aggravated robbery, and three counts of serious assault.
  8. 30 days to appeal to the Court of Appeal.

Sunil Sharma

Judge


At Lautoka
18 March, 2022


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

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