Tuitokova v The State [2005] FJHC 452; HAA067X.2005S (25 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. Nos: HAA0067, 070 and 073 of 2005S

Between:

APOROSA TUITOKOVA
AMENATAVE QALITUIBAU
LUKE NAVUDA
JOSEVA TUKANA
SEVANAIA DONU
SAIMONI LOGA
FILIPE WILIKIBAU
Appellants

And:

THE STATE
Respondent

Hearing: 30th September 2005
Ruling: 25th October 2005

Counsel: Ms B. Malimali for Appellants
Mr. A. Rayawa for State

RULING

On the 30^th of September 2005, I upheld convictions in respect of all the above-named appeals. They all involve a series of offences, which took place on the village of Malawai, Gau, and arose from conduct from January 2005 to March 2005. They involve offences of arson, attempted arson and throwing objects. The sentences ranged from a total of 2½ years imprisonment to a total of 5 years for Saimoni Loga on HAA0070 of 2005S and 5 years for Amenatave Qalituibau and Aporosa Tuitokova in HAA0067.2005.

The appeal against convictions were dismissed. This is the judgment in relation to the appeals against sentence.

There are several irregularities in the sentences passed. In HAA0067 of 2005, the sentencing remarks do not refer to the tariff for arson. They do refer to the alleged motive for the arson, that is suspected witchcraft and dispute over a chiefly title but do not refer to a possible link between the acts committed on each file. There are no reasons given for a starting point which is much higher than the tariff for arson. The tariff for arson in Fiji is 2 to 4 years imprisonment (Donato Vakabale v. The State HAA0051 of 2002, Kelemedi Lagi & Others v. The State HAA0004 of 2004S). The learned Magistrate picked a starting point of 7 years imprisonment.

Further there appears to have been no attempt to discover the background to the series of offences committed by the Appellants. The Appellants themselves say in their appeal petition and submissions in court, that the turaga-ni-koro wrote a letter to the court, which the learned Magistrate read out to the Appellants. There is no record of this on the court file, but if it did indeed occur, then the attempt to find out the real cause of the offending was commendable. However, it should have been effected in a procedurally acceptable way, especially as the Appellants claim that the turaga-ni-koro is not an impartial person, being related to the complainant on one file. The proper procedure was to hear him on oath, to allow the Appellants to cross-examine, and to lead evidence of their own.

The sentence of 5 years imprisonment on HAA0070 of 2005S similarly appears to be excessive given the tariff for arson itself. Finally a sentence of 2½ years imprisonment for throwing object appears to be far in excess of the nature of the offending.

For these reasons, the sentences on all files are quashed. On the information available on the court files, it would be impossible to sentence in any meaningful way without hearing evidence on the background to the offending and on the character of each Appellant. Both counsel requested me to hear evidence in this court rather than remit to the lower court, because they were concerned about possible delay. I therefore granted leave to the Appellants and the State to call any evidence they wish to call, to assist me in substituting more appropriate sentences in these appeals. The sentence hearing will proceed today.

Nazhat Shameem
JUDGE

At Suva
25th October 2005