State v Sasau - Sentence [2012] FJHC 1301; HAC111.2009 (28 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC111 of 2009

BETWEEN:

STATE

AND:

KOSENI SASAU
1st Accused

AND:

SEMETI RAVAI
2nd Accused

BEFORE: Hon. Mr. Justice Paul K. Madigan

COUNSEL: Ms A. Lomani for State
Ms L. Lagilevu for both Accused

Dates of Hearing: 22, 23 & 27 August 2012

Date of Summing Up &
Judgment: 27 August 2012

Date of Sentence: 28 August 2012

SENTENCE

1. Both of these accused have been convicted after trial of one offence of abduction contrary to s.251 of the Penal Code, Chapter 17, Laws of Fiji.

2. The facts of the case revealed at trial were that on the 17th October, 2009 at Nausori, both of these accused ("the accused") drove a company vehicle to the home of a former workmate, Sukul, the victim in this case. There was at the time a dispute within the company where all three worked (that is the accused and the victim) as to the use of $500 which had been misappropriated. It was the intention of the accused to confront Sukul with the allegation that he had stolen the money and was unfairly implicating the two accused in its use. At his home the accused took the victim downstairs to their vehicle and against his will forced him into the car before driving off, ostensibly to their workplace to air their grievance before the "boss."

3. At the trial the accused ran a defence of lawful citizens arrest for larceny from servant; a defence neither the assessors nor the Court accepted.

4. The maximum penalty for abduction is seven years' imprisonment. There has been no tariff set in this jurisdiction for the offence. Thurairaja J purported to set the tariff at six months to 18 months in the case of Sadrugu HAC116 of 2001, where the learned Judge said that that tariff has been set in Sanoko [2009] FJHC91. This is incorrect. Sanoko did not set such a tariff.

5. Sentencing for abduction has been discussed by the English Court of Appeal in Spence and Thomas 5 Cr. App. R(S) 413 where the Court said that a top end of a sentencing range should be reserved for cases where the victim is taken hostage or a ransom has been demanded, and at the maximum if undue violence or firearms are used. The bottom end of the tariff can be appropriate in cases of family disputes or lovers' tiffs.

6. As the maximum penalty for this offence is seven years both under the Penal Code and under the Crimes Decree 2009, an appropriate tariff for the offence would be between 18 months to four years, depending on violence, length of detention, use of weapons, etc.

7. The violence used in the present case was minimal – the victim was taken by way of deceitful excuses and a slap and a push. The aggravating features pertaining to this particular case are that the victim was taken away from his family on an important day of religious celebration (Diwali), and that he being a small Indo-Fijian was overpowered by two large Itaukei men acting in concert.

8. Each of the accused is a married family man supporting children. They both have minor criminal records which afford them no credit for previous good behavior. They have shown no remorse before this Court and were using the abduction in a way to enforce a debt.

9. In the circumstances, especially as they sought to take the law into their own hands, I take a starting point of two years imprisonment. There are no mitigating features that would permit me to discount that starting point, however the aggravating features already alluded to would enhance the sentence by 12 months, making a final sentence to be served by each accused to be one of three years.

10. Each accused will serve a minimum term of 28 months imprisonment before being eligible for parole.

11. They have 30 days to apply for leave to appeal this sentence.

Paul K. Magidan
JUDGE

At Suva
28 August 2012