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State v Ravuwai [2004] FJHC 519; HAC0008.2002S (27 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC0008 OF 2002

BETWEEN:

STATE

AND:

JOJI RAVUWAI
1st Accused

SISARO TALEMAITOGA
2nd Accused

OSEA BAINITABUA VOLAVOLA
3rd Accused

Date of Ruling: 7th July, 2004

Counsel: Mr. P. Bulamainaivalu – for State
Mr. R. Tuitoga/Mr. F. Haniff – for 1st Accused
Ms B. Malimali – for 2nd Accused
Mr. S. Valenitabua – for 3rd Accused

EXTEMPORE RULING

BAIL APPLICATION BY 2ND ACCUSED DURING TRIAL

This is an extempore ruling given on the third day of trial. It is given in relation to a bail application made by the 2^nd accused Mr. Talemaitoga. The essential facts and curial history are summarized in my earlier pre-trial bail ruling in HAM 12 & 18 of 2004. The background to his application is that on the second day of trial as a result of new instructions given by him to his counsel (that completely changed the basis of the defence for the hearing). Counsel believed it was right and proper for him to make an application for leave to withdraw as he found himself in a conflicting position.

I granted that leave and counsel withdrew. The applicant says to me that he has been in custody for 2 years and 6 months and under the new Bail Act there is a presumption that he be given bail. He secondly says that as his lawyer has withdrawn he needs to be on bail to enable him to find alternate counsel for his trial.

The State submits in answer that the matter of his lawyer withdrawing was of the accused’s own making and secondly that he has relatives and friends that can assist him in obtaining new legal assistance if that is required.

Decision

Once a trial has started the presumptions for the granting of bail under the new Bail Act cease to be of full effect. The presumption of bail for those in custody for two years or more pending trial [Section 13(4)] is suspended. In addition the definition of "Bail" in the Act appears to restrict or limit the other statutory presumptions for bail once a trial has begun. That is logical because once a trial has commenced there are additional factors the Court has to consider before granting bail.

In my view those additional factors are very telling and they include:

1. The fact that the trial has commenced and it would be against the interests of justice for that trial to be effected in any way by the influence or absence of an accused.
   
2. The risk that an accused released on bail may accidentally or deliberately interact with any witnesses.
   
3. The fact that an accused if released may accidentally or deliberately interact with the assessors.
   
4. The fact that an accused released on bail in the midst of a serious trial like this may have a stronger motivation to abscond and therefore that risk of flight would prejudice the effective conclusion of the trial.
   

For these reasons, in my opinion, I would deny bail for you during trial.

In my view, it is fortunate indeed that we had scheduled a week’s adjournment of the trial during the month of July. As it happens by coincidence that week will also enable the accused to seek further representation as their existing counsel had found it necessary because of conflicting instructions to withdraw. Further they have been given every right to be represented but in effect they have now waived that right. That is not to say that they should not be given every opportunity to exercise that right again and further they will have that opportunity during the adjourned period from today until the 19^th when we re-commence.

Further I accept the State’s submission that the accused can have the good offices of their relatives or friends to assist them in locating a lawyer.

Accordingly for all these reasons and with the reservation to recall this judgment to perfect it, I decline bail Mr. Talemaitoga. You and your co-accused will stay in jail.

I adjourn the Trial until 10.00am on the 19^th of July, 2004. I order your production each of you for that day.

Gerard Winter
JUDGE

At Suva
7th July, 2004

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC0008 OF 2002

BETWEEN:

STATE

AND:

JOJI RAVUWAI
1st Accused

SISARO TALEMAITOGA
2nd Accused

OSEA BAINITABUA VOLAVOLA
3rd Accused

Date of Sentence: 27th August, 2004

Counsel: Mr. P. Bulamainaivalu – for State
1st Accused – In Person
2nd Accused – In Person
Mr. S. Valenitabua – for 3rd Accused

SENTENCE

Joji Ravuwai, Sisaro Talemaitoga and Osea Volavola, you were found guilty after trial by the majority opinion of three assessors. I concurred with the majority opinion. You have been convicted therefore of the counts of murder and robbery with violence.

You need to understand that the sentence fixed by law for murder is that a convicted person should be sentenced to life imprisonment. There is no discretion allowed to the Court in a murder case to sentence for a lesser term.

The sentence fixed by law for robbery with violence is a liability to imprisonment for life.

As I have to fix a penalty for the robbery with violence offence and needed to consider whether I should recommend any minimum period to be served by anyone or more of you I called for submissions from the State, from Counsel and from each of you.

It is significant here that you were all very young when you committed this offence. I calculate that you Joji and Sisaro were 18 or just 18 and Osea you were 17 years and 5 months old. I keep in mind your youth.

You are clearly all from good homes but of modest circumstances. You each did not get far with your education. You have had limited employment opportunities. You have no previous convictions.

I take the period of remand of 2 years and 7 months into account when arriving at the appropriate order.

I want you to know that I watched you closely during the trial. You showed no remorse for what you did. In spite of your full and frank disclosures to the police you maintained your innocence throughout the trial. Rather than accept responsibility you hunted around to find a convenient excuse for your confessions. It is such a pity that you blackened the character of the good Constables involved in the criminal investigation. The tales you told about the alleged beatings you received while in custody were simply not true. They were definitely not borne out by the independent medical examinations you received after your police interviews. I do not for one moment accept that any policeman caused you harm.

Violent and armed robberies of taxi drivers are all too frequent. The taxi industry serves this country well. It provides a cheap vital link in short and medium haul transport. Taxi drivers are particularly exposed to the risk of robbery. They are defenceless. They risk personal harm each and everyday by simply going about their business. That harm can only be ameliorated by harsh deterrent sentences that might instil in prospective muggers the knowledge that if they hurt or harm let alone murder a taxi driver they will receive lengthy terms of imprisonment.

Your plan to subdue a taxi driver and rob him went horribly wrong. You decided to overpower your victim in the best way possible by attacking him from behind and strangling him to a point of submission. In this quiet and deserted spot you carried out your deathly plot. It is clear from the post mortem report that this poor fellow struggled mightily as you strangled the last breath out of his body. He did not give up easily. So you took to hitting him to calm him down and you held on to that red wire around his throat as hard as you could and you killed him. He stopped moving. You took the $50.00, went to town and had some beers.

All of this account comes from your own admissions made to the police. This taxi driver’s life was taken with hardly a thought. All you could think about was stealing a bit of money and having some beers. You may be young but on this night you were completely callous and completely calculating.

In an Australian decision of Bowen and Amberon [1998] QC 8394, Justice Pincas said:

"that for robbery of a taxi driver the degree of violence used and extent of injury if any caused to the victim is a critical fact to be taken into account.

In Australia the sentences generally range from 4 years imprisonment with recommendations for parole after 12 months to 8 years imprisonment. But those guidelines are from a state of Australia that does not have liability to life imprisonment as the maximum available term for sentencing on robbery with violence charges.

Mr. Volavola, your counsel, Mr. Valenitabua, served you well during the course of this trial and has continued to do so this morning. He submits that the sentences delivered in each the State’s examples resulted from the extreme violence and culpability of each of those accused and I agree with them. Sad to say the scale of culpability for murder can be judged. Your murder of this unfortunate taxi driver was less culpable than the brutal rape murder and larceny murder offences described in the State’s reference material and I take that into consideration.

Robbery with Violence

In your case I consider the starting point must be 9 years imprisonment. The aggravating features of the robbery are obvious. You used lethal force and ultimate violence to achieve your goals. For these aggravating factors I consider the sentence has to be increased by a further 6 years.

However, taking into account your youth, lack of previous convictions and time spent in custody I reduce that by 5 years making a sentence of 10 years imprisonment for robbery with violence. You all participated in the crime. The sentence is the same for each of you.

The Murder

The only sentencing matter I am concerned with is Section 33 of the Penal Code.

Again I take into account the time you spent in custody awaiting trial, your youth and your lack of previous convictions.
5.

I have arrived at a recommendation for a minimum term to be served by each of you that will not totally destroy your lives. It will allow some hope for a fresh start when you are released. The term will also reflect that each of you took a life and must be punished by forfeiting the freedom of your life to atone for his death.

This was a crime you need not have committed. The ferocity of your attack on the taxi driver and his miserable suffocation as you strangled his life’s breath out of him deserves condign punishment for such a dreadful crime. For this murder you are sentenced to life imprisonment and I recommend that you serve a minimum of 15 years in jail. Please stand up.

Conclusion

Count 1 – Murder

Joji Ravuwai, Sisaro Talemaitoga and Osea Volavola on the count for murder the sentence of this Court is life imprisonment with a recommendation that you serve a minimum term of 15 years in jail.

Count 2 – Robbery with Violence

On the count of robbery with violence your sentence is 10 years imprisonment.

All terms to be served concurrently. This means that each of you go to jail for a minimum term of 15 years imprisonment. Stand down in custody.

Gerard Winter
JUDGE

At Suva
27th August, 2004