Wednesday, March 18, 2009

Crimes were serious, Justice Goundar tells nine



Crimes were serious, Justice Goundar tells nine
Wednesday, March 18, 2009
Sai Comment:
- All Fijians should note the face of the 9 who took the life of another Fijian. They are nothing but barbarians who all deserve to rot in prison for what they have done.

LAUTOKA High Court judge Justice Daniel Goundar refused a defence application for discharge without conviction because the offences committed in the Sakiusa Rabaka murder trial were serious. He said the offences could not be classed as technical breaches of the law which could have cleared the nine accused of moral blame.

"The offences you committed are serious. The offences were deliberate conduct on your behalf as agents of the State on civilian victims. "It is not in public interest that you be exonerated from these offences by a discharge without conviction," Justice Goundar said. The defence had submitted that a conviction would result in loss of employment and cause financial hardship to the families of the accuseds.

Justice Goundar said subsequent authorities have held that absolute discharge without conviction is for the morally blameless offender and discharge powers should be "exercised sparingly where direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the court has balanced all the public interest considerations."

Troops go to jail

By MARGARET WISEWednesday, March 18, 2009

EIGHT soldiers and a former police officer found guilty of manslaughter in the murder trial of Nadi youth Sakiusa Rabaka were handed four year prison sentences yesterday.
A packed courtroom heard Lautoka High Court judge Justice Daniel Goundar tell the nine accused that the offenses were committed in a joint enterprise and he would not apportion individual culpability. "Under the doctrine of joint enterprise it does not matter who struck the fatal blow. You all acted with a common intention to take the deceased and the complainants to a military training site called Black Rock, to assault them," Justice Goundar said.
"Sakiusa Rabaka died of the assaults he sustained at Black Rock."
The nine Patrick Nayacalagilagi, Taione Lua, Ulaisi Radike, Etonio Nadura, Ratunaisa Toutou, Joeli Lesavua, Jona Nareki, Ilaisa Kurimavua and Napolioni Naulia were sentenced to four years imprisonment for manslaughter and four months imprisonment for each count of assault occasioning bodily harm. The sentences are to be served concurrently.
Justice Goundar said in meting out the sentence he took into account the fact the offences were not the worst of its kind and fell in the medium range of sentence for manslaughter and lower scale of the tariff for assault. However, he said while the motive of arrest was to maintain law and order, he could not ignore the fact that the group breached their legal duty to protect those arrested from any harm whilst in custody. "Instead of being the custodian of law, you took the law into your own hands and became both the jury of guilt and executor of punishment," Justice Goundar said. "Every detainee in this country is entitled to the constitutional guarantees such due process of law and protection from degrading and inhumane treatment.
By your conduct you denied the deceased and the complainants the due process of law that you enjoyed in this trial." "The deceased and the complainants were not given an opportunity to be heard and to defend themselves. You punished them without a finding of guilt. They were subjected to degrading and inhumane treatment as a form of punishment. They were made to strip and do military type physical exercises. During the exercises they were continuously kicked, punched and hit."
He refused a defence submission for bail pending appeal on the sentence.

It’s not enough, says Rabaka's mum

www.fijisun.com.fj - 3/18/2009
Four years in jail is not enough for the men who killed my son, says the mother of the late Sakiusa Rabaka.
But Alanieta Rabaka said the judge has spoken and she respected his decision.
“I don’t think it’s enough. But the judge has spoken and his decision is final. And I want those men (accused persons) to remember that judgement doesn’t end here,” she said.
“It is better to serve some punishment on earth and be free from other punishment. As Christians, they will know what I’m talking about.” Mrs Rabaka and her husband both described the sentence as very lenient. “But even if the jail term is very light in my view, I know their individual families will suffer just as much while these men are behind bars.”
Patrick Nayacalagilagi, Taione Lua, Ulaiasi Radike, Etonia Nadura, Ratunaisa Toutou, Joeli Lesavua, Jona Nareki, Ilaisa Kurimavua and Napolioni Naulia were each sentenced to four years on a lesser charge of manslaughter instead of the initial murder charge which they were tried for.
Judge Justice Daniel Goundar also sentenced each of them to four months imprisonment for each of the five counts of common assault they were convicted of.
Justice Goundar ordered that the sentences be served concurrently.
In passing sentence, he responded to an application for discharge without conviction by defence counsel Haroon Ali Shah was denied. Justice Goundar said the case the defence relied on in applying for discharge without conviction had different circumstances which did not apply to the case before him. He said the offences committed by the nine could not be classed as a technical breach of the law to warrant a conditional discharge.

“The offences you committed are serious. The offences were deliberate conduct on your behalf as agents of the State on civilian victims. It is not in public interest that you be exonerated from these offences by a discharge without conviction,” he said.
Justice Goundar said while he considered the motive behind the arrests of Rabaka and the four complainants were to maintain law and order in the country, he could not ignore that they had breached their legal duties to protect them from any harm whilst the victims were in their custody.

“Instead of being the custodian of law, you took the law into your own hands and became both the jury of guilt and executor of punishment. Every detainee in this country is entitled to the Constitutional guarantees such as due process of law and protection from degrading and inhumane treatment,” he said. “By your conduct, you have denied the deceased and the complainants the due process of law that you enjoyed in this trial. The deceased and the complainants were not given an opportunity to be heard and to defend themselves.
You punished them without a finding of guilt.” Justice Goundar said because the offences were committed in a joint enterprise, he would not apportion individual culpability and that under the doctrine of joint enterprise, it did not matter who struck the fatal blow. “You all acted with a common intention to take the deceased and the complainants to a military training site called Black Rock to assault them. Sakiusa Rabaka died of the assaults he sustained at the Lack Rock,” he said.
In court, the nine sat expressionless throughout the sentencing by Justice Goundar.
Afterwards, they were given the opportunity to say goodbye to their families who gathered at the court in numbers and bade farewell as the Police truck left for Natabua Prison. The nine have been remanded pending an appeal against conviction and sentence.

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