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State v Macartney - Sentence [2008] FJHC 307; HAC175.2008 (5 November 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 175 OF 2008

BETWEEN:

THE STATE
Complainant

AND:

SIMON JOHN MACARTNEY
Accused

Counsel: Ms. P. Madanavosa & Mr. J. Daurewa for the State
Mr. S. Valenitabua for the Accused

Date of Sentence: Wednesday 5th November, 2008

SENTENCE

[1] Simon John Macartney you have been found guilty for the murder of your wife, Ashika Lata, after trial by the unanimous opinion of the five assessors. I have concurred with the assessors’ opinions and convicted you.

[2] The offence of murder carries mandatory life imprisonment. Additionally, the Court has discretion to fix a minimum term pursuant to s.33 of the Penal Code.

[3] I invited submissions from counsel. Only the State has filed submissions. The defence elected not to file any submission. It is clear from the authorities that a minimum term is imposed if the murder was committed callously and the victim was a vulnerable person such a woman or an elderly person (State v Navau Lebobo HAC 016/02S, State v Albertino Shankar & Ano HAC014/01S, State v Mohammed Yunus & Ano HAC015/00L)

[4] I regard the murder in this case was committed after careful planning.

[5] You have claimed to have loved your wife but, the evidence portrayed a totally different picture of your relationship with her. Shortly after your marriage, you returned to Fiji and remained here for reasons not clear from the evidence. In Fiji, you were in an intimate relationship with another woman while being married to Ashika Lata. Ashika Lata lived in Australia for two years so that she could obtain permanent residency status there. Of course, you are not sentenced for being an unfaithful husband, but the evidence of your relationship with the other woman is relevant to your motives and intentions to kill Ashika Lata. I note that your relationship with Ashika Lata’s parents were very unpleasant. You developed a dislike for your in laws when you returned to Fiji. According to your evidence, your in laws have borrowed substantial amount of money from you and have refused to return them. You have sued them to recover your money.

[6] When you learnt Ashika Lata was granted permanent residency status in Australia, you realized that that opened an opportunity for Ashika Lata’s family to visit or migrate to Australia. Your dislike for Ashika Lata’s family was so much that you went to the extent of killing Ashika Lata and then impute the killing on her family. It was obvious from the cross examination of Ashika Lata’s father, Rajendra Prasad, that you imputed the murder of Ashika Lata on him and his family.

[7] You learnt Ashika Lata was coming to Fiji on 22 October 2007. You convinced her that you were going to pick her up from Nadi and take her to her parents. You yourself did not disclose to anyone that you were going to pick up Ashika Lata from Nadi. In your evidence you said you did not tell your girlfriend or Seema Singh (Ashika Lata’s former sister in law) when she called you in the evening of 22 October 2007 that you had gone to Nadi to pick up Ashika Lata.

[8] You made every effort to conceal your identity. You did not want anyone to know that you went to Nadi to meet Ashika Lata when she arrived from Australia. You hired a rental car so that it was going to be you and your wife only. You wore a cap when you went to Nadi. When you saw a relative of Ashika Lata at the airport, you realized that your identity could not be concealed. And then the CCTV camera captured you and Ashika Lata together at the Chicken Express in Nadi. So you decided to choose a location where you could conveniently say that Ashika Lata got off and that you did not know what had happened to her thereafter.

[9] You stopped in Sigatoka town. You got off and went into a coffee shop. Ashika Lata remained in the vehicle. When you were inside the shop you added something in the coffee. You told the police that you added Tylenol in your coffee because you had a headache. I do not accept you added Tylenol in your coffee. You added something in Ashika Lata’s coffee. You then drove to Suva with Ashika Lata.

[10] You reached Deuba by 7.00pm. It was almost dark. You brought a torch with you. You drove the vehicle to the Vunibuabua Old Road, off the Queen’s Highway. You parked the vehicle at a location covered with grass and sheltered by a hill. You chose an isolated location. There you strangled Ashika Lata to death and dumped her body further into the bushes. You either discarded the torch or dropped it on the track leading to the place where you dumped Ashika Lata’s body.

[11] You took Ashika Lata’s luggage with you. You moved the luggage around to different locations to conceal it until the police questioned you on 26 October 2007. You said you were scheduled to return to Australia on 29 October 2007 but by that time the police were treating you as a suspect and you were advised to remain in Fiji.

[12] You worked out an explanation for every piece of circumstantial evidence that implicated you. Your actions show a criminal intention in executing a planned killing.

[13] When you committed this offence you were aged 34 years. You are now 35 years old. You come from a reasonably well off family. You do not have any previous criminal history.

[14] The victim was your wife. She was a young woman aged 29 years old. She came from an average family. Her parents are elderly. You met her in 2004 in a shop where she was working as a salesgirl and you got married to her in February 2005.

[15] The post mortem report revealed that Ashika Lata was manually strangled to death. Considerable force was used. Her cricoid cartridge was fractured.

[16] After killing her, you took away the dignity of her body by dumping her into the bushes and exposing her to scavengers and to decomposition. You were her husband. She trusted you for her security and life but you violated that trust by killing her in a dreadful manner. You were ruthless in taking away Ashika Lata’s life.

[17] I take these matters into account. I sentence you to life imprisonment for the murder of Ashika Lata. Pursuant to s.33 of the Penal Code, I fix a minimum term of 18 years imprisonment to be served by you.

Daniel Goundar
JUDGE

At Suva
Wednesday 5th November, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Valenitabua Esq., Suva for the Accused