State v Lebobo [2004] FJHC 518; HAC0016T.2002S (7 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC016 OF 2002

THE STATE

V

NAVAU LEBOBO

Gates J.

Mr B. Solanki and Mr Qica for the State
Ms P. Narayan for the Accused

6, 7 April 2004

SENTENCE

[1] Navau Lebobo you have been found guilty after trial on this information by the unanimous opinion of the 3 assessors. I have concurred in these opinions. You have been convicted therefore of the counts of murder, rape and robbery with violence.

[2] This is a truly disturbing case. Disturbing because it shows what one person can do after breaking into a private home. The initial purpose had been to steal some cash to continue drinking. Once inside however, you meted out a heartless, cruel, prolonged and unnecessary beating to Mr Badri Maharaj, an old man of 82, until he died. You then went on to assault his small-made frail wife aged 76 who had offered you no resistance whilst you committed your crime.

[3] You beat her and punched her so that her nose and mouth bled and both of her eyes were blackened. After her husband lay unconscious and dying you then carried the old lady to the next bedroom and there raped her, though she protested to you that she was a mother. You did not relent at these pleas.

[4] At the start you had decided to break into this house which is not far distant from the Tuitalevu settlement between Raiwai and Flagstaff where you were living. The family were known to have given work to people from your settlement and yet their house in Rewa Street was targeted for your stealing.

[5] Mrs Maharaj did not hear you break in because she did not wear her hearing aid at night. It was 4 in the morning. When you saw her, you launched an attack upon her which was unnecessary, cowardly, and gratuitous. She was injured, bleeding, and stunned by this assault. You should be deeply ashamed of this part of your conduct, and which you had largely admitted in the agreed facts. I have heard no apology however tendered in or through this court to Mrs Maharaj for the beating that you gave her.

[6] Whilst your victims were lying, either on the floor in Mr Maharaj’s case, or on the bed in Mrs Maharaj’s case after the rape, you took their small amount of foreign currency from the kitchen bowl and some Fiji currency from Mrs Maharaj’s handbag. These sums amounted in value approximately to $500 in Fiji currency. The money was spent by you on drinks in the nightclub to impress friends or strangers.

Your background

[7] You are 28 years old. You are single, unemployed and you finished school at class 6. You are not, as has been suggested though, uncommunicative. Nor do you appear to have any understanding difficulty with language and you appeared to possess fluency and some articulacy, when you addressed the court yesterday. The investigating officer said you were very co-operative throughout the investigation.

[8] You have been to prison before, that was in 1990 for assault with intent to commit a felony. You served 12 months. Your other convictions were for indecent assault, criminal intimidation, and house breaking. On the last 2 convictions you were sentenced to 9 months imprisonment suspended for 3 years.

Robbery with violence

[9] Robbery with violence under section 293(1) (b) of the Penal Code is a very serious offence, for which the statutory maximum sentence in Fiji is life imprisonment. As was said of robbery with violence by Shameem J. in State v Ilaisa Sousou Cava (unreported) Suva High Court Criminal Case No. HAC007.00S; 19 April 2001: "The offence is also prevalent in Fiji, and there is a duty on the court to pass a sentence which reflects the gravity of such offending."

[10] Recently the Court of Appeal observed:

"In Fiji robbery with violence carries a maximum penalty of life imprisonment. It needs to be said therefore that the State places it as an offence in the most serious category. The importance of this may be seen when the position in Fiji is contrasted with the position in New Zealand where the maximum penalty for a comparable offence is 14 years imprisonment (except in the case of Home Invasion where the maximum is 19 years). It follows then that although a sentencing Judge may obtain some assistance from the statement of principles which apply in for example New Zealand it is necessary to bear in mind that the offence is regarded more seriously in Fiji."

See Raymond Sikeli Singh and 3 Others v The State (unreported) Court of Appeal, Fiji Crim. Appeal No. AAU0008 of 2000S; 19 March 2004 at p.7.

[11] The court went on:

"The second principle is to ensure that as far as possible sentencing Judges in determining the severity of the sentence take into account those factors which acting on behalf of the community may be seen as significant."

[12] It is plain the community in Fiji is increasingly concerned at crimes committed during "home invasions". By their sentences the courts must strive to protect all persons in their homes. But the courts must take an even stronger line with crimes committed against vulnerable persons in their homes, such as the young or the old, the weak or the infirm.

[13] In R v Driscoll 8 Cr. App. R (S) 121 cited by Shameem J. in Cava (supra at p.4) the English Court of Appeal held that where robbery was committed in the course of a burglary, a 15 year prison term was justified for offences of robbery, aggravated burglary, and causing grievous harm. The court said that there was a need to protect elderly people living alone, who were increasingly selected by burglars for such attacks.

[14] I quote again from Shameem J.’s judgment in Cava (p.4):

"In R –v- Richardson and Others The Times February 10, 1988 sentences of 13 years, 12 years and 11 years youth custody for the defendants who were of previous good character, and who had taken part in a series of robberies on houses where the victims were asleep but were disturbed and attacked with knives, were held to be right in principle. Ewbank J said that robberies of this nature were so serious that a plea of youth or of previous good character was of little relevance, and that where the victims were old or very young, the sentence would be even longer."

[15] In Joseva Lui & Others v The State (unreported) AAU0005.97S the Court of Appeal reduced the sentence of the 3 offenders who had entered a jeweller’s shop armed with cane knives and a hammer from 8 and 9 years to 6 years, 7 years and 5 years 9 months respectively. But in that case the jewellery was recovered, the offenders pleaded guilty at the first opportunity, and no-one was injured.

[16] In Sikeli Nayavusoata & Anor v The State (unreported) Court of Appeal, Fiji Crim. App. No. AAU0027.01S; 30 May 2003, the court reduced a sentence of 7 years to 5, noting that the Accused had not inflicted physical injury on the victim, neither Accused had previous convictions, and both had been in custody for 1 year 5 months awaiting trial.

[17] In your case, I consider the starting point in the tariff must be 8 years imprisonment. I reduce that by 3 years for the time you have spent in custody namely 1¾ years.

[18] But this was a home invasion robbery of the worst kind. There is no mitigating remorse. You did not plead guilty when it was obvious you had no defence to this count. Instead you made the victim relive the terrifying saga of her own beating and that of her husband. You assaulted the husband who fought for his life, and the violence you used on him was extreme. Both victims were elderly and vulnerable. Such persons ought to be able to expect to live quietly in their homes as retired persons without being brutally assaulted in the middle of the night by an intruder. For all of these aggravating factors I consider the sentence is to be increased by a further 5 years, making a sentence of 10 years imprisonment in all for the robbery with violence.

The rape

[19] Rape is regarded as one of the most serious offences in the Penal Code. The Court of Appeal in Mohammed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994 observed (at p.6):

"We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

[20] In this case and because the victim was an elderly person I believe the correct starting point is 10 years. Again I deduct 3 years for the time spent in custody awaiting trial, bringing the term down to 7 years.

[21] In mitigation there is little to say in your favour. In your interview you said that you escorted the old lady, after the rape, to the bathroom to allow her to wash herself, and that you then took her back to the same room. That was the only discernible glimmer of humanity I can find in what you did that night.

[22] The aggravating factors are that this rape was committed during a home invasion, that the rape was accompanied by a brutal attack, that the attack caused disgraceful injuries to a frail and elderly person. Lastly, by your plea of not guilty, you forced this lady to have to enter the witness box and to revisit these terrible events and to relate what had happened when she had been raped by you. I remember the extreme distress she suffered when at the end of her examination in chief she realised her attacker was in court and she then became ill. You did not spare her any of this.

[23] The courts in recent years have realised how strongly outraged the public feels about violent crimes committed during home invasions. The courts have accordingly hardened their hearts towards perpetrators of such crimes. For all of these reasons that I have set out, a further 6 years must be added to the sentence, making a total for the rape of 13 years.

The murder

[24] The offence of murder carries a mandatory life sentence. The only sentencing matter I am concerned with is whether your crime requires a recommendation from me pursuant to section 33 of the Penal Code, that you serve a specified minimum period of that term.

[25] Again I take into account the time you have spent in custody awaiting trial and allow 3 years discount for that time.

[26] It is hard to understand why you committed this murder. It was unprovoked, senseless and extremely brutal. It was a crime that you need not have committed for you to have achieved your goal of stealing cash for drinking. The ferocity of your attack on Mr Maharaj, who I emphasize was aged 82, was also savagely prolonged. At the end of it, blood was everywhere in that bedroom, and Mr Maharaj’s face was distorted and close to pulp. More significantly we learnt from the pathologist’s evidence of the number of bones broken, bones broken in several places, and of the huge damage to all parts of Mr Maharaj’s head.

[27] It is necessary that you be rightly punished for this truly dreadful crime. It is to be hoped that you will find remorse and forgiveness eventually. But for this murder you are to be sentenced to life imprisonment and in considering the totality of your offending I recommend that you serve a minimum term of 20 years.

[28] I make no order on the matters for which you are in breach of suspended sentences.

[29] In summary then you are sentenced as follows:

Ct. 1 murder:-Life imprisonment with a recommendation that you serve a minimum term of 20 years.

Ct. 2 rape:-13 years imprisonment.

Ct. 3 robbery with violence:-10 years.

All terms are to be served concurrently. No order on the suspended sentences matters.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions
Solicitors for the Accused: Legal Aid Commission, Suva