State v Rokete - Sentence [2014] FJHC 114; HAC084.2009 (4 March 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.HAC84 of 2009

BETWEEN

STATE

AND

1. JOJI ROKETE
2. JOSUA WAKA
3. JONETANI ROKOUA
   

BEFORE: THE HON. JUSTICE PAUL K. MADIGAN

Counsel: Mr. J. Niudamu with Mr.A. Paka for the State.
Mr. J. Savou for the first accused.
Mr. A. Singh for the second accused.
Ms. L. Tabuakuro for the third accused.

Dates of Hearing: 10 – 20 February 2014
Date of Mitigation: 4 March 2014
Date of Sentence: 4 March 2014

SENTENCE

(1) Joji Rokete, Josua Waka and Jonetani Rokouayou have all been convicted after trial of murder, robbery with violence and unlawful use of a motor vehicle; all offences contrary to the Penal Code, Cap 17.

(2) The facts of the case elicited at trial are that in the early hours of the 8th September 2009 the three of you acting in agreement entered the home of Mr. Vinod Sharma at Yalalevu, Ba by removing burglar bars and louvers from a bedroom window. On searching the house Mr. Sharma was found asleep on a bed in the living room. He was tied up and a cloth-gag applied to his nose and mouth and held there forcibly until he was motionless. The pathologist reports that bruises to the face and mouth evidence a use of force to the area. The house was searched leaving it in disarray and items were stolen, including a portable telephone, a ring and a watch. The key to the deceased's vehicle was found and his vehicle parked outside the dwelling was driven away by the accused.

(3) In mitigation for the first accused, I am told that he is 31 years of age and he had worked as a farmer before his arrest. He lives with a woman in a de facto relationship with 2 children of that union. His wife is expecting to deliver another child in 7 months. His counsel submits that he is young and a first offender, factors which should be considered in sentencing. However, the Court does not regard 31 years as young and regard must be had to his leading role in the enterprise as one who attacked the elderly deceased without provocation and who held a cloth over his face with an intention to kill.

(4) The second accused is aged 34 years, also a farmer and he is married with 2 children. He has two previous convictions which are current, one for housebreaking and larceny. His counsel submits that his role in this enterprise was minimal but this Court does not agree. One of his admissions in the caution interview was that he held and pressed down the body of the victim while another applied force to his nose and mouth. He therefore is an aider and abetterof the offence, as well as being a party in the joint enterprise. Of such he is equally liable with the first accused who admitted applying the gag to the deceased's mouth.

(5) The third accused is 39 years of age and was employed as a law clerk before arrest. He lives with a de facto wife and children. He has many previous convictions of which 7 are current. He has one previous conviction for robbery with violence in February 2005 for which he served a term of 4 years imprisonment. His counsel tells the Court that she is instructed to offer no mitigation.

(6) The maximum penalty for robbery with violence under the Penal Code is life imprisonment and the accepted tariff is 10 to 16 years (Rasaqio HAC 15 of 2007, Rokonabete HAC 118/07, Wainiqolo AAU 27 of 2006).

(7) This particular robbery was especially violent with at least one if not all of you subjecting the lone householder to violence of being tied up and suffocated with a cloth gag until he was "motionless". Even if it was only one of you who did the suffocating you must all bear responsibility for that violence.

(8) There are several factors of aggravation;

• The robbery was not spontaneous, it was planned
• It was effected at about 2 – 3 in the early morning.
• The murder was effected to avoid justice by removing any potential identification by the householder.
  

(9) I take a starting point for the robbery a term of ten years. For the aggravating features I add four years bringing the total sentence up to fourteen years.

(10) For the offence of murder I have no option but to pass a sentence of life imprisonment. That is the sentence fixed by law. I do however have the discretion to determine a minimum term which you must serve before you are eligible for parole. This Court said in Nilesh Chand HAC 345 of 2013 (Labasa) a minimum term is set so that the community can be assured that persons taking the lives of others may serve a meaningful period in custody. It was said that a murder with intention to kill will attract a longer term than a murder committed by recklessness. In this particular case, there is no evidence of provocation whatsoever on the part of the deceased. In fact the 1st accused says in his caution interview that the deceased woke and was looking around. He was obviously in abject fear of what was happening in his house and he was then jumped on and his face smothered and pressed. I find it very serious that this innocent householder was killed so callously just because he was there observing the robbery. A killing to prevent later identification is of course aggravating in that it is intended to obstruct the course of justice and that is very serious aggravation indeed.

(11) In the U.K, the Criminal Justice Act, 2003 Schedule 21, makes provision for minimum terms. The schedule provides for elements of aggravation and mitigation that a Court could consider in assessing a minimum term for murder. This U.K Act does not apply in Fiji of course, nor does Fiji have similar legislation but those provisions can be of real assistance in assessing a minimum term before pardon in terms of section 237 of the Fiji Crimes Decree. Aggravating features listed in the UK schedule and which are of particular relevance to the present case include:

(i) murder for gain (for example in the course of robbery or burglary).
(ii) the murder of a vulnerable victim in terms of age and or vulnerability.
(iii) a murder with a view to obstruct justice.

I adopt those features and apply them in this case.

(12) There is no evidence in this case of premeditation of the murder, nor is there any evidence of provocation. The first accused did, at the end of the prosecution case and after the finding of a case to answer against him, offer to change his pleas to guilty of robbery and guilty to manslaughter. This change of heart was not accepted by the Prosecution and it came far too late in proceedings to provide him with any credit in assessing the minimum term against him but what the offer does do is to invite consideration of a degree of remorse in his case.

(13) Remorse will always be a strong factor in mitigation of sentence, but that remorse must be tested as far as possible for credibility. Although a spontaneous offer of plea to a lesser charge would normally be indicative of remorse, this court regards the offer with no small degree of cynicism. It was clear from the evidence that the 2nd and 3rd accused were implicated in this offence on the information provided to the Police by the 1st accused. His subsequent attempt to change his plea, followed by evidence in defence that he alone was responsible for the robbery and murder was no more than an attempt by him to take back responsibility and to atone to his two cousins for his prior inculpatory information.

(14) The late change of stance and the obvious awkward attempt in expiation cannot provide him with credit for a plea or even for remorse. In the cases of the 2nd and 3rd accused, there is no degree of remorse whatsoever. In the circumstances I order that the first accused will spend 18 years in prison before being eligible for parole.

(15) The second accused being an aider and abetter will also serve a minimum term of 18 years.

(16) The third accused did not make any admissions and there is no evidence of his actual role in the enterprise apart from the circumstantial evidence that he was there and the direct evidence that he told another the next day that a man died because "he was sickly and we tied a cloth around his neck". Such an utterance means that he was well aware of the murder but it does not help to assess his role. In any event he must be jointly liable for a very serious murder of an elderly vulnerable victim and to that extent he must serve a significant minimum term. I order that the third accused serve a minimum period of 15 years before being eligible for pardon.

(17) Unlawful use of a motor vehicle carries a maximum sentence of 6 months imprisonment. Taking the deceased's vehicle again showed a complete disregard for his property. I sentence each of you to 5 months imprisonment for this charge to be served concurrently to the other sentences.

(18) The terms of imprisonment for robbery and unlawful use of a motor vehicle are to be served concurrently with the murder sentence.

[19] The terms of imprisonment are:

First accused: Murder – life imprisonment with 18 years minimum.

Robbery – 14 years concurrent.

Unlawful use – 5 months concurrent.

Second accused: Murder – life imprisonment with 18 years minimum.

Robbery – 14 years concurrent.

Unlawful use – 5 months concurrent.

Third accused: Murder – life imprisonment with 15 years minimum

Robbery – 14 years concurrent

Unlawful use – 5 months concurrent.

P.K. Madigan
Judge

At Lautoka
4 March 2014.