State v Ravuwai - Judgment [2011] FJHC 429; HAC008.2002 (12 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC008 of 2002

STATE

v.

1. JOJI RAVUWAI
2. SISARO TALEMAITOGA
3. OSEA VOLAVOLA

Hearing: 1 August 2011 – 3 August 2011
Judgment: 3 August 2011
Sentence: 12 August 2011

Counsel: Mr. L. Fotofili for State
Ms S. Vaniqi for 1st & 3rd Accused
Mr. T. Muloilagi for 2nd Accused

SENTENCE

[1] The three accused persons were convicted on their own guilty pleas to the lesser offence of manslaughter on a charge of murder and to robbery with violence.

[2] Both offences carry maximum penalty of life imprisonment.

[3] The victim was a taxi driver. On 26 January 2002, at about 9pm, he was hired by a Fijian woman and her teenage daughter. As they were about to board, the three accused approached and asked if they could also travel in the taxi. The women knew the first and the second accused and so they agreed. After the women had been dropped off at their home in Nausori, the taxi continued with the accused to the Naselai Feeder Road. Once there, the second accused put an electrical wire around the driver's neck from behind and pulled it tight. Meanwhile, the third accused got off the taxi and came to the driver's seat. He grabbed the wire while the second accused punched the driver. Whilst that was being done, the first accused ripped out the taxi meter and hid it in the bushes. They took about $50.00 cash which they used to buy liquor in a nightclub later on the same night. On the following morning the driver was found in his taxi with the wire still tied around his neck. He had died from strangulation.

[4] At the time these offences were committed, the first accused was 18 years old, the second accused was 19 years old and the third accused was 17 years old. All three accused are now in their late twenties. They did not go far with their education. They had no previous conviction.

[5] In 2004, the three accused were tried and convicted of murder and robbery with violence. They were sentenced to life imprisonment with a minimum period of 15 years to serve.

[6] In 2007, the Court of Appeal quashed the convictions of all three accused and ordered a re-trial. The accused were fugitives at large for a while after their release from prison. On 28 June 2010, all three accused were apprehended and remanded in custody pending re-trial. On 1 September 2010, the accused informed the court that they were willing to take a plea on manslaughter. On 13 September 2010, the State refused to accept the plea on manslaughter.

[7] Numerous adjournments were granted to allow the accused to engage counsel. Eventually, when legal aid was granted to all three accused, the trial was set to commence on 1 August 2011. On 1 August 2011, the trial commenced with a trial within a trial to determine the admissibility of confessions made by the three accused to the police under caution. After the close of the evidence for the prosecution on the trial within trial, counsel for the State informed the court that the State would accept plea on manslaughter.

[8] Pleas were taken and all three accused immediately pleaded guilty to manslaughter and robbery with violence.

[9] All three accused had spent 2 years and 7 months in custody on remand before their first trial. From 27 August 2004 to 28 July 2006, they were prisoners serving life imprisonment. From June 2010 until 1 August 2011, they were remanded in custody pending re-trial. The total period of custody is 5 years and 8 months.

[10] The deceased's daughter gave evidence of the impact of the offences on their lives. The deceased was the sole breadwinner for his family. The deceased's children were deprived of tertiary education and his wife and children had to look for an alternative shelter after they had lost the only source of income they had.

[11] All three accused personally apologized to the deceased's wife and children. They told the family that they did not intend to kill the victim.

[12] I closely observed the demeanour of all three accused when the deceased's daughter was giving evidence of impact of the offences on their lives. All three accused had their heads down at all times while the witness was giving evidence. When the accused apologized to the deceased's family, they struck me as genuinely remorseful for their conduct.

[13] The offences are serious. The victim was killed in the course of committing a robbery. The victim was vulnerable. He was a taxi driver. Three accused were against one victim. A weapon was used to strangle the victim. This was done for the sake of small amount of cash to buy liquor.

[14] I am guided by the tariff set by the Court of Appeal for manslaughter and robbery with violence. In Vilimoni Navakamocea v. The State AAU0002 of 2006 the Court of Appeal said at page 5:

"We suggest that, in all cases of manslaughter where the death is the result of a deliberate infliction of violence in the course of committing another offence such as robbery in which grave violence was anticipated and any form of weapons used, the court should use a starting point of between ten and fourteen years imprisonment."

[15] I consider the guilty pleas, youth of the accused at the time of the offences, their previous good character, remorse and delay as mitigating factors.

[16] I treat the victim's vulnerability as a taxi driver, the use of weapon and the fact that he was attacked by three persons as aggravating factors.

[17] For the offence of manslaughter, I pick 12 years imprisonment as my starting point. I increase the sentence to 15 years to reflect the aggravating factors and reduce the sentence to 10 years to reflect the mitigating factors.

[18] An appropriate sentence for manslaughter in this case is a term of 10 years imprisonment and for robbery with violence a term of 6 years imprisonment is appropriate.

[19] A downward adjustment has to be made to the sentences to reflect the remand and prison period of 5 years and 8 months with some concession for remissions. I scale down the sentence by 8 years and arrive at a sentence of 2 years imprisonment. I impose a head sentence of 2 years imprisonment for both offences, to be served concurrently with any pre-existing sentence.

[20] I have considered suspending the sentence but in the event I have decided not to suspend the sentence. The purpose of the sentence is to deter the accused from re-offending in future.

Daniel Goundar
JUDGE

At Suva
12 August 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for 1st & 3rd Accused
Office of Muloilagi Law for 2nd Accused