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State v Lutumailagi - Sentence [2012] FJHC 944; HAC022.2008 (13 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 022 OF 2008

BETWEEN:

STATE

AND:

TEMO LUTUMAILAGI

Ms. L. Vateitei for the State
Accused Inperson

Date of Trial : 20/02/12 – 29/02/12.
Date of Summing Up : 29/02/2012.
Date of Judgment : 01/03/2012.
Date of Sentence : 13/03/2012.

SENTENCE

1. You Temo Lutumailagi unanimously found guilty by the Assessors and convicted by the Court for Murder punishable under Sections 199 and 200 of the Penal Code (Cap.17).

2. According to Section 200 of the Penal Code, the only mandatory sentence this court can impose is life imprisonment. Accordingly I sentence you life imprisonment.

3. I consider Section 18(1) of the Sentencing and Penalties Decree and states as follows:

(i) Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole.

4. Both the State and the Accused were invited to file their submissions regarding sentences and given an opportunity to make oral submissions and to call witnesses if necessary. The State Counsel and the accused filed their written submissions. In addition the accused made oral submissions in the open court.

5. The evidence before the court reveals that the deceased Ms. Sin Har Sue was 71 years old senior citizen. She was running a Chinese Gift Shop by the name of "John Lui" at Nadi Town. She was a senior member of the Chinese Community. On the 1st December 2007 the accused and some others entered the shop in broad daylight, slashed the deceased with a cane knife. She had received two deep cut injuries in the face and one blunt force injury on the back of the head. The deceased was a mother of 5 children and defenseless at the time of death. According to the Post mortem report the cut was from one ear to other ear. According to the Pathologist the assailant had meant the death and nothing else of the deceased when causing the injuries on the deceased.

6. The accused submitted that he is 30 years old, married with 3 children. His wife and children will miss his love and care. Further he submits that he was in remand for 1 year and 9 months. He submits to court to impose 5 years non-parole period for him.

7. In Sakiasi Rakelekele and Waisake Rokonini v State (2007) AAU 18/06 the Fiji Court of Appeal decided 11 ¼ years should be the minimum sentence.

8. In State v Lijun (2003) HAC 2/03S Gates. J (as then) decided 17 years as minimum period.

9. I seriously consider Section 4 of the Sentencing and Penalties Decree.

10. Acting under Section 18(1) of Sentencing and Penalties Decree upon considering all circumstances of the case I impose Temo Lutumailagi life imprisonment and you shall not be eligible for parole for 12 years from today the 13th March, 2012.

S. Thurairaja

JUDGE

At Lautoka

13th March 2012.