State v Biumaiwai [1991] FJHC 21; HAC0029.1990s (22 February 1991)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 29 OF 1990

THE STATE

v.

1. JIMIONE BIUMAIWAI
2. TIMOCI LEWENIKALI
3. LUKE TUGAIVEI

Count 1: CONSPIRACY TO COMMIT FELONY: Contrary to Section 385 of the Penal Code, Cap. 17.
Count 2: MANSLAUGHTER: Contrary to Section 198 of the Penal Code, Cap. 17.

Mr. K. Bulewa for the 1st and 2nd Accused
Mr. Q. Bale for the 3rd Accused
Mr. S. Hettige and Mr. J. Prakash for the State

SENTENCE

This case as learned counsel has pointed out received wide publicity when it first came to light and might be succinctly called the "Lees Pay-Van Robbery".

Although all 3 accused persons are jointly charged it is convenient to deal separately with each and in the manner in which learned defence counsel addressed the Court.

It is immediately obvious from the amended information filed in Court that on the 1st Count of Conspiracy to Commit a Felony all 3 accused persons are jointly charged that over a period of 10 months between January and October 1989 they all conspired together to commit an offence of Robbery with Violence. On the 2nd Count of Manslaughter however only the 1st and 2nd accused are charged.

All 3 accused have pleaded guilty to the offences that each has been charged with and admitted the facts outlined by the prosecution relative to each Count.

From the facts outlined and more importantly from the accused own statements to the police it would appear that it was as long ago as March 1989 that the plan to rob the Lees pay-van was first 'hatched' between the 3 accused persons.

They had all been former employees of the Lees owned Temptation Chicken factory at Colo-i-Suva and were familiar with the particular operations of the company needed to plan the robbery.

It is also clear from their statements that several attempts were made by all 3 accused persons jointly to execute the plan but all had failed for one reason or another.

On the 25th of October 1989 however unbeknown to the 3rd accused, the 1st and 2nd accused (and possibly one other not before the Court) decided to attempt once again to execute the plan. The 2nd accused accordingly acted as a 'look-out' for the Lees pay-van. When it approached and went past him on the road he signalled to the 1st accused who picked up a stone which he threw at the windscreen of the van.

The stone missed the windscreen and struck the driver on the head causing him to lose control of the van which
went off the road and ended up on its side near a rubbish dump beside the road.

The first accused ran to the van and on seeing the driver slumped over the steering with his head bleeding, he panicked and fled from the scene leaving behind the box containing the pay untouched inside the van.

A Post-Mortem report on the driver revealed a depressed fracture of the skull on the right side of his head with extensive bleeding in the brain. His death was almost immediate.

Learned counsel for the 1st and 2nd accused has highlighted to the Court various factual aspects of the case.

The plan he described as: "some wild and crazy notion that sometimes crosses the minds of young people with a lot of idle time on their hands". As for the execution of the plan by the 1st and 2nd accused on the 25th of October he described it as: "badly executed by amateurs who did not have the gumption to complete the planned offence".

Counsel also sought to differentiate between their respective roles in the incident and refers to their relative youth and the 16 months that both accused have spent being remanded in custody. He, like the 1st and 2nd accused urges the Court to impose a suspended sentence of imprisonment.

I am afraid that I cannot accede to that request. Even accepting that the 1st and 2nd accused are relatively young first offenders aged 22 and 21 years respectively by their actions and admissions they have shown that their plan to rob the pay-van was not a 'wild and crazy' notion nor was it a 'passing aberration'.

This was a robbery based on inside knowledge planned months in advance and attempted on several occasions prior to the 25th of October. Even their past failures did not dampen their resolve with the result that an innocent young man has lost his life.

It is little comfort to suggest that the 2 accused persons only intended to stop the van nor does it belie the fact that some force would be necessarily involved in achieving that object.

Anyone who recklessly throws an object at the windscreen of an approaching or passing vehicle must know that that is a potentially lethal act. Such persons must plainly understand that if death ensues as a result of their actions, however unintended, condign punishment must inevitably follow.

The 2nd accused it is true was only the "look-out" but his role was equally essential for the success of the operation. In his statement he admitted that the plan was: "To throw at the glass of the lorry and when it stops then we steal the money box from the van." He must bear equal responsibility for the "planned act".

I have carefully considered all that has been urged on behalf of the 2 accused persons by their counsel. In particular their relative youth and guilty pleas but a deterrent, custodial sentence is unavoidable.

The sentence of the Court is that the first accused JIMIONE BIUMAIWAI is sentenced on the 1st Count to 12 months imprisonment and on the 2nd Count to 4 years imprisonment both sentences are ordered to be served concurrently and mindful that the accused has been in remand custody for the past 16 months I order that the sentences take effect from the 30th of October, 1989.

The second accused TIMOCI LEWENIKALI is similarly sentenced on the 1st Count to 12 months imprisonment and to 4 years imprisonment on the 2nd Count, both sentences to be served concurrently with effect from the 30th of October, 1989.

I turn next to deal with the 3rd accused LUKE TUMAIVEI who faces a single charge of Conspiracy to Commit a Felony and although he is jointly charged with the first and second accused the prosecution's case against him is that on his own admissions he was a party to the original conspiracy and played an active role in 3 unsuccessful attempts to execute the plan prior to the 25th of October, 1989.

His offence was completely committed before the events of the 25th of October on which day the prosecution accepts he was neither involved with the 1st or 2nd accused nor did he know of their proposed further attempt to execute the plan.

In those circumstances learned counsel submits that the moral culpability of the 3rd accused for the events of the 25th of October must be negligible (if any).

The prosecution have not charged the 3rd accused with any involvement in the events of the 25th of October nor is it suggested that he was involved in the immediate planning that occurred on the 22nd of October 1989 to rob the Lees pay-van on the 25th.

Nevertheless as long ago as 1876 it was said of the offence of conspiracy in Reg. v. Aspinall: per Brett C.J.:

"........ the crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence that any one thing should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete; it was completed when they agreed."

If I may say so (and in this I agree with learned defence counsel), the offence of the 3rd accused is as "technical" as an offence of conspiracy could be, based as it is on a mere agreement to commit an unlawful act as detailed in the admissions of the 3rd accused and his co-conspirators and exemplified by their failed attempts.

Be that as it may the 3rd accused was the eldest of the 3 and on his own admission was the "originator" of the idea.

In his case too I have carefully considered all that has been urged on his behalf by learned defence counsel with particular regard to the nature of the offence to which has pleaded guilty and the nature of the evidence against him which was almost entirely based upon his own full and frank disclosures to the police.

In the circumstances this Court is able to treat the third accused differently and more leniently than the 1st and 2nd accused. The 3rd accused LUKE TUMAIVEI is accordingly sentenced to 12 months imprisonment suspended for 2 years with effect from today.

(D.V. Fatiaki)
JUDGE

At Suva
22nd February, 1991.

HAC0029.90S