State v Noa - Sentence [2015] FJHC 939; HAC089.2010L (1 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

LAUTOKA CRIMINAL CASE NO. HAC 089 OF 2010L

STATE

vs

1. RAFAELE NOA
2. SIRELI LILO
3. ILIESA VAKABUA
4. ILIVASI NAVUNICAGI
5. EPARAMA TAMANIVAKABAUTA
   

Counsels : Mr. S. Babitu and Mr. Y. Prasad for State
Mr. S. Prakash for Accused No. 1
Ms. N. Karan for Accused No. 2
Mr. I. Romanu for Accused No. 3
Accused No. 4 – Tried in Absentia
Ms. N. Karan for Accused No. 5
Hearings : 17, 18, 19, 20, 23 to 26 November, 2015
Summing Up : 30 November, 2015
Judgment : 1 December, 2015
Sentence : 1 December, 2015

SENTENCE

1. In a judgment given today, the court convicted Accused No. 1, 4 and 5 for the murder of Mr. John Leonard Dass, between 21 and 22 August 2010, at Lautoka in the Western Division (count no. 1).
   
2. Accused No. 2 was acquitted of murder (count no. 1), but found guilty and convicted of the lesser offence of the manslaughter of John Leonard Dass, between 21 and 22 August 2010, at Lautoka in the Western Division.
   
3. Accused No. 3 was acquitted of the murder and/or manslaughter of John Leonard Dass, between 21 and 22 August 2010, at Lautoka in the Western Division.
   
4. As for count no. 2, that is, the aggravated robbery against Mr. John Leonard Dass between 21 and 22 August 2010, at Lautoka in the Western Division, all accuseds were found guilty as charged and convicted accordingly.
   
5. The brief facts were that between 21 and 22 August 2010, at Lautoka, in the Western Division, all the accuseds broke into Mr. John Leonard Dass's house and forcefully stole the properties mentioned in count no. 2. During the robbery, Mr. Dass was strangled to death.
   
6. For the offence of murder, there is only one mandatory sentence of life imprisonment. The court may fix a minimum term to be served before a pardon may be considered by His Excellency the President of the Republic of Fiji.
   
7. I therefore sentence Accused No. 1, 4 and 5 to the mandatory life imprisonment. Each accused is to serve a minimum period of 20 years imprisonment, before a pardon may be considered by His Excellency the President of the Republic of Fiji. For Accused No. 5, the above sentence is concurrent to any prison term presently served.
   
8. For manslaughter, the maximum sentence is 25 years imprisonment. The tariff for manslaughter is a suspended prison sentence to a sentence of 12 years imprisonment. For Accused No. 2, I start with a sentence of 5 years imprisonment. I deduct 8 months for the time he spent in custody while on remand, leaving a balance of 4 years 4 months. I sentence Accused No. 2 to 4 years 4 months for the manslaughter of Mr. John Leonard Dass.
   
9. All the accuseds were convicted on count no. 2, that is, the aggravated robbery on Mr. John Leonard Dass. The maximum sentence is 20 years imprisonment. The tariff for aggravated robbery had been set between 8 to 16 years imprisonment: see Wallace Wise v The State, Criminal Appeal CAV 0004/2015, Supreme Court of the Republic of Fiji.
   
10. For each of the accuseds, I start with a sentence of 15 years imprisonment. For Accused No. 1, I deduct 2 years for being a first offender, leaving a balance of 13 years imprisonment. For Accused No. 2, I deduct 1 year for time spent in custody while on remand, leaving a balance of 14 years imprisonments. For Accused No. 3, I deduct 1 year 9 months for the time already served while remanded in custody and 3 months for not offending in the last 10 years, leaving a balance of 13 years imprisonment.
    
11. For Accused No. 4, I deduct two years for the time spent in custody while on remand, leaving a balance of 13 years imprisonment. For Accused No. 5, I deduct 1 year for time spent in custody while on remand leaving a balance of 14 years imprisonment.
    
12. The summary of the sentences are as follows:
    
    • (i) Accused No. 1: Count No. 1: Murder: Mandatory Life Imprisonment, with a minimum term of 20 years to be served, before a pardon may be considered by His Excellency the President of the Republic of Fiji.
      

Count No. 2: Aggravated Robbery: 13 years imprisonment.

(ii) Accused No. 2: Alternative to Count No. 1: Manslaughter: 4 years 4 months Imprisonment.

Count No. 2: Aggravated Robbery: 14 years imprisonment.

(iii) Accused No. 3: Count No. 2: Aggravated Robbery: 13 years imprisonment.

(iv) Accused No. 4: Count No. 1: Murder: Mandatory Life Imprisonment with a minimum term of 20 years to be served before a pardon may be considered by His Excellency the President of the Republic of Fiji.

Count No. 2: Aggravated Robbery: 13 years imprisonment.

(v) Accused No. 5: Count No. 1: Murder: Mandatory Life Imprisonment with a minimum term of 20 years to be served before a pardon may be considered by His Excellency the President of the Republic of Fiji.

Count No. 2: Aggravated Robbery: 14 years imprisonment.

13. Because of the principle of totality of sentencing, as far as each accused was concerned, their sentences in count no. 1 and 2 are to be made concurrent to each other, and this include the alternative to count no. 1.
    
14. So the final sentences for each accused, would be as follows:
    
    • (i) Accused No. 1: Mandatory life imprisonment, with 20 years minimum term to be served, before pardon may be considered by His Excellency the President of the Republic of Fiji.
      
    • (ii) Accused No. 2: 14 years imprisonment, with a non-parole period of 13 years imprisonment, effective forthwith, and this is to be concurrent to any prison term presently served.
      
    • (iii) Accused No. 3: 13 years imprisonment, with a non-parole period of 12 years imprisonment, effective forthwith.
      
    • (iv) Accused No. 4: Mandatory life imprisonment, with 20 years minimum term to be served, before pardon may be considered by His Excellency the President of the Republic of Fiji.

This sentence is to take effect from the time he is recaptured.

(v) Accused No. 5: Mandatory life imprisonment, with 20 years minimum term to be served, before pardon may be considered by His Excellency the President of the Republic of Fiji.

This sentence is concurrent to his present prison sentences.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused No. 1 : Legal Aid Commission, Suva.
Solicitor for Accused No. 2 : N. Karan, Barrister and Solicitor, Suva.
Solicitor for Accused No. 3 : I. Romanu, Barrister and Solicitor, Suva.
Solicitor for Accused No. 4 : Tried in Absentia
Solicitor for Accused No. 5 : N. Karan, Barrister and Solicitor, Suva.