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State v Nasetava - Sentence [2022] FJHC 2; HAC310.2019S (14 January 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 310 OF 2019S

STATE
vs
LUKE NASETAVA

Counsels : Ms. S. Tivao and Ms. P. Ram for State
Mr. F. Vosarogo and Ms. J. Qica for Accused
Hearings : 17, 18, 19, 22 November, 6 and 10 December, 2021.
Judgment : 20 December, 2021.
Sentence : 14 January, 2022.

SENTENCE

1. On 17 November 2021, the following information was put to you in the presence of your counsels, and you pleaded not guilty to the same:
   

“Statement of Offence

MURDER: Contrary to Section 237 of the Crimes Act 2009.

Particulars of Offence

LUKE NASETAVA, on the 31^st day of August 2019 at Suva in the Central Division murdered AMELIA MAFI.”

2. After a 6 days trial, judgment was delivered on 20 December 2021, where you were found not guilty of murder, but guilty of the lesser offence of manslaughter, on the ground of cumulative provocation by the deceased.
   
3. The brief facts of your case were as follows. You and the deceased had been going out together as a couple since you were 26 years old and she was 27 years old. You lived together as man and wife for the next 5 years. In December 2016, you and the deceased were legally married. You two didn’t have any children, but since March 2014, you two had been looking after your late elder sister’s three young children, aged 11, 9 and 6 years old in 2019. At the time, you two lived at your family’s house at Nasinu Road, Nasinu.
   
4. In 2014, the deceased found work at Total Fiji Limited. You worked for Fiji Ships for two years, before going into yaqona cultivation and then starting your grog business in January 2019. You said, you were earning approximately $1,000 per week, while your wife, the deceased, earned $500 to $700 per fortnight from Total Fiji Limited. On or about December 2018, your wife left your family home to live with her uncle in Nabua. You lived in Lautoka, while operating your grog business. You and your wife purchased a $16,500 Toyota Fit Shuttle in 2019, registered in your wife’s name. You two kept in touch via telephone conversations.
   
5. Your wife started to have an affair with another man, while at Suva. She suggested to you that you find another woman and she will move on with another man. Her new man was seen driving you two’s car in Suva, while you were in Lautoka. You couldn’t stand the insults and wrongful acts by your wife. You asked her where she was on Friday night (30 August 2019), and she said she was at home. In fact, she lied to you. It appeared she was with her new man. You took a taxi from Lautoka to Suva, and went to see your wife at work, to resolve the problem amicably. However, she swore at you and told you to “fuck off!” Because of the cumulative provocation, and in the heat of passion and before there was time for that passion to cool, you repeatedly stabbed your wife to death on 31 August 2019.
   
6. In State v Viliame Ratoa, Criminal Case No. HAC 173 of 2010S, High Court, Suva, I said the following:

“....“Manslaughter” is a serious offence, and carries a maximum sentence of 25 years imprisonment. The tariff for manslaughter in Fiji is a suspended prison sentence to a sentence of 12 years imprisonment. Sentence in the upper range were reserved for cases where the degree of violence was high, and the provocation minimal. Sentence in the lower range were reserved for cases where the violence used was minimal, while the provocation was extreme. The tariff covers a very wide set of varying circumstances which will attract different sentences, depending on its own set of facts: Kim Nam Bae v The State, Criminal Appeal no. AAU 0015 of 1998S, Fiji Court of Appeal; The State v Francis Bulewa Kean, Criminal Case No. HAC 037 OF 2007S, High Court Suva; The State v Tomasi Kubunavanua, Criminal Case No. HAC 021 of 2008, High Court, Suva. Of Course, the actual sentence will depend on the aggravating and mitigating factors...”

7. The aggravating factors in this case were as follows:
   • (a) Extreme violence was used to resolve a marital problem. Although you killed your wife in the heat of passion and before there was time for that passion to cool, as a result of cumulative and sudden provocation on 31 August 2019, in hindsight, there was no need to use such extreme violence to resolve a marital problem. Although the partial defence of provocation was put in place to address the reality of human frailty, there was no justification to use extreme violence to solve a problem. In our society, the Family Courts are there to resolve marital problems legally and peacefully. You realize that by using such extreme violence on 31 August 2019 on your wife, you must accept that you will have to be punished by serving a custodial sentence.
   • (b) Unnecessary loss of life. Because of what you did on 31 August 2019, your wife had lost her life. You are still breathing and alive. Her aunty, Ms. Asenaca Tikoikorovou, the lady who raised your wife when she was young, is completely devastated. She looked after Amelia when she was young, sent her to school and treated her as her own daughter. She says her life is ruined as a result of you taking away Amelia’s life. She asks the court for justice.
   • (c) By offending against Amelia, you had shown no regards whatsoever to her right to life, her right to be treated as a human being and her right to a happy life.
     
8. The mitigating factors were as follows:
   • (i) At the age of 36 years, this is your first offence.
   • (ii) You had been remanded in custody awaiting trial for 2 years 2 months 5 days.
   • (iii) You, with the assistance of the deceased, looked after your late elder sister’s 3 young children since 2014.
     
9. Given what was said in State v Viliame Ratoa (supra) in paragraph 6 hereof, we will consider some precedent cases of manslaughter sentences in Fiji and abroad, to assist us decide on the most appropriate tariff and sentence in this case.
   
10. Case No. 1: Bharat Lal v State [1990] AAU 3/90, 8 November 1990, reported in [1951 - 2000] [2019] Vol. 2, Supplementary FLR 336

16/7/89, A was 31 years old, married to the deceased (wife) and they had 2 daughters, aged 4 and 7 years old. The wife was 7 months pregnant. Accused was having an affair with another woman. His wife was 31 years old also. Wife knew of the affair. Their sex relationship was not a happy one. They used to quarrel from time to time. On 16/7/89, the family had dinner and later they went to sleep. The couple in their bedroom and the children in theirs. During the night, the couple argued. When the wife slept, accused thought about their unhappy relationship. He remembered his wife was always angry with him and she told him, he was nothing to her. He decided to end his problem once and for all. He then strangled her to death with his hands. Accused was charged with murder. Found not guilty of murder, but guilty of manslaughter and sentenced to 10 years imprisonment. On appeal, Court of Appeal said the manslaughter was of a grave kind, and deserved a higher sentence. 10 years prison sentence affirmed.

11. Case No. 2: State v Alumita Lewatsevu (Cr Case 1 of 1990L) [reported in State v Prabha Wati [2001] Vol. 1 FLR 338]

“The accused wife was also the victim of domestic violence. On the day of the killing the deceased husband came home drunk. He had an argument with his wife. He then beat his wife for roughly 3 hours stopping only after he was exhausted. He then got a cane knife and threatened to kill the accused when he woke up. He left the cane knife beside his bed. The accused who had fled the house returned after 30 minutes and saw her husband still in drunken slumber. The Court accepted that “she could no longer stand his ill treatment of her and she lost control.” She grabbed the knife and chopped her husband’s neck three times. She was sentenced to 2 years imprisonment suspended for 3 years.”

12. Case No. 3: Kim Nam Bae v The State, Criminal Appeal No. AAU 0015/1998, Court of Appeal (26 February 1999)

Accused and the deceased (wife) came from China to start a restaurant business in Fiji. They lived together as man and wife. Financial pressures fell on them. They borrowed money from friends, which they were finding difficult to repay. This caused disharmony in their relationship. On 4/2/97, the deceased opened the restaurant and went to Nadi to see a Korean male friend. She returned with $1,000. She would not tell the accused where she got the money from. The accused drank liquor when she was in Nadi. When she returned, they had an argument. The accused punched, kicked and hit her with a 2 litre plastic juice bottle filled with water. She became unconscious. She was later taken to hospital, where she died a short time later. Accused was charged with murder. Later amended to manslaughter. Accused pleaded guilty and sentenced to 6 years imprisonment. Sentence appeal to Court of Appeal dismissed and sentence affirmed.

13. Case No. 4: State v Prabha Wati [2001] Vol. 1, FLR, 336

Wife was married to the deceased (husband) since she was 16 years old. Her first child was a daughter. Husband was not happy. He wanted a son. Her next three children were daughters. Husband still not happy. For 35 years or so, husband subjected the wife to physical, mental and psychological abuse. Trial court held she was suffering from Battered Woman Syndrome. Wife killed husband as a result [details of killing not described in the sentence]. Wife charged with murder. Defence argued provocation. All three assessors found her not guilty of murder, but guilty of manslaughter. First case where “Battered Woman Syndrome” advanced as ground for provocation. Wife sentenced to 2 years imprisonment suspended for 2 years.

14. Case No. 5: Mosese Rawaqa v State, [2005] FLR 203 (COA)

Accused, while under the influence of alcohol, beat his wife to death. Accused said, he lost control of himself because he believed his wife stole his money. Accused later took wife to hospital, but she was pronounced dead on arrival. Accused was arrested and remanded in custody until sentence. Accused charged with murder. Two assessors found him not guilty of murder, but guilty of manslaughter. One assessor found him guilty of murder. Judge accepted majority and found accused not guilty of murder but guilty of manslaughter. Accused sentenced to 9 years. Accused appealed to the Court of Appeal against his sentence. Sentence was reduced by Court of Appeal to 7 years imprisonment.

15. Case No. 6: The Queen v Suluape, NZ Court of Appeal CA 249/01 (27 March 2002)

Accused was 53 years old. She had been married to the deceased for 24 years. She was born in W. Samoa and educated to 7^th Form. She came to NZ in 1967. In NZ, she worked in rest homes and hospitals as a cleaner. Her role in the marriage was governed by Samoan customs, that is, “you marry, you make your bed and you lie on it, you keep up the front to prevent shame for the family and in particular your husband.” The husband was a Samoan tattooist and he travelled widely, leaving the accused to care for the children and maintained the household. The accused er first husbahusband had 4 children. He died in 1975 and she married the deceased, with whom she had 5 children, aged 21, 19, 5 and 13. The accused cared for all 9 children, including the deceased’s mother, who, who was in a wheelchair and 8 children of the deceased’s brother, whose wife had died. Her relationship with her husband involved physical and emotional violence, bashings, cutting with a machete, infliction of a venereal disease and continued infidelities. In October 1999, the deceased organized a tattooists convention in Apia, Samoa, which attracted overseas visitors and was of great cultural significance to the Samoan community. The deceased was accompanied to the convention by a European female tattooist and they cohabited openly. This was great insult to the accused and her family. The deceased told accused he was leaving her for the other woman. The accused questioned him several times of his intentions. He told her he was leaving her for good. On 24 November 1999, she took an axe and went to see the deceased in his sleep-out at the rear of their house. She hid the axe. She asked him again about their marriage. He said he was leaving her for good for the other woman. She then picked up the axe and struck him on the head repeatedly with the flat end of the axe. His skull shattered and he died thereafter. Accused was charged with murder. She was found not guilty of murder, but guilty of manslaughter, on the ground of provocation. She was sentenced to 7 ½ years imprisonment, which was reduced to 5 years on appeal to the Court of Appeal.

16. Case No. 7: State v Taniela Laqeri, HAC 001/05L (7 November 2005)

Accused, wife, a friend and a niece were drinking liquor on 25/11/04. They consumed 48 cans of rum and cola. Thereafter, they travelled in a motor vehicle along Queens Road. At the material time, accused’s wife was driving the motor vehicle. Accused saw his friend’s hand on the thigh or between the thighs of his wife. Accused exclaimed at the time and began to repeatedly punch his wife. The car stopped and the friend fled. Accused then repeatedly punched, kicked and assaulted his wife. The wife was taken to Sigatoka Hospital in the morning, wherein she was pronounced dead on arrival. The accused was charged for murder. He was later found not guilty of murder, but guilty of manslaughter and sentenced to 8 years imprisonment.

17. Case No. 8: State v Mohammed Faiyaz [2011] HAC 079/2008L (Sentence: 22 July 2011)

Accused (42) lived with his defacto wife, with his 2 children from an earlier marriage. In 2007, accused went to New Zealand to visit relatives. While away, his defacto wife had an affair with a 24 year old (deceased), who was renting a room in the house. Accused confronted his defacto wife about the matter, and she admitted she had sex with him twice. Sometime later accused and the victim went to buy grog in the victim’s car. Accused while in the car, stabbed the victim in the chest with a knife, for having an affair with his wife. Victim later died. Accused pleaded guilty to manslaughter and was sentenced to 4 years imprisonment, with a non-parole period of 3 years.

18. The eight manslaughter sentences mentioned above do confirm what was said in State v Viliame Ratoa (supra) in paragraph 6 hereof. “Sentence in the upper range were reserved for cases where the degree of violence was high, and the provocation minimal. Sentence in the lower range were reserved for cases where the violence used was minimal, while the provocation was extreme”. There is no denying in this case, as observed in the CCTV footage during the trial and the post-mortem photos depicting Amelia’s injuries, that the degree of violence unleashed by Mr. Luke Nasetava on his wife Amelia Mafi, at the material time, was extremely high. The authorities mentioned above therefore demands he be sentenced in the upper range. Bharat Lal v State (supra); Mosese Rawaqa v State (supra); The Queen v Suluape (supra) and State v Taniela Laqeri (supra) seemed to point the way.
    
19. I will start with a sentence of 6 years imprisonment. I add 6 years for the aggravating factors, making a total of 12 years imprisonment. For time already served while remanded in custody, I deduct 2 years 3 months, leaving a balance of 9 years 9 months imprisonment. For mitigating factor no. 8 (iii), I deduct 3 months, leaving a balance of 9 ½ years imprisonment. For being a first offender, I deduct 6 months, leaving a balance of 9 years imprisonment.
    
20. Mr. Luke Nasetava, for the manslaughter of your wife, Amelia Mafi, on 31 August 2019 at Suva in the Central Division, I sentence you to 9 years imprisonment, with a non-parole period of 8 years imprisonment, effective forthwith.
    
21. Pursuant to section 4 (1) of the Sentencing and Penalties Act 2009, the above sentence is designed to punish you in a manner that is just in all the circumstances, to protect the community from people like you and to signify that the court and community denounce what you did to Amelia Mafi on 31 August 2019.
    
22. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

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