State v Rasaqio [2010] FJHC 287; HAC155.2007 (9 August 2010)

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Mr. J. Singh for the State
Ms J. Nair for the First Accused
Ms N. Nawasaitoga for the Second Accused
Mr. A. Singh for the Third Accused
Mr. T.Terere for the Fourth Accused
Fifth Accused in Person

[1] On the 5th October 2007, what should have been a joyous family reunion in Toko, Tavua, became a night of horror and grief for the family after you first four accused had threatened, robbed and wounded four ladies in the isolated house, and assaulted the husband who kept shop next door resulting in his death.

[2] The four of you after an evening of drinking methylated spirit, planned to go and rob the shopkeeper taking with you dangerous weapons such as a pinch bar, a cane knife and a kitchen knife. You went as a group and lay in wait for Mr. Prasad to close up his shop at 9.00pm and when he did and left the shop you waylaid him, and punched him so hard that he fell to the ground hitting his head causing fatal injuries. Not content with that, you then went to his dwelling house next door where his wife, mother and two visiting sisters were celebrating the arrival of one of the sisters from Australia. You threatened these women with your weapons, you injured them, hurled obscenities at them, stole their jewellery, their cash, even the mother's medicine and you took the keys to the rental car hired by the visitor from Australia; you drove away in the car, picking up the fifth accused at the Tavua bus stand and eventually proceeded to Malele where you broke into the house of one Latchman Naidu at 1.30am while the occupants were sleeping. Fortunately before you stole anything there, another car arrived and you fled the scene.

[3] Ratu Batiniqio Rasaqio, Emosi Dagoya and Sefanaia Nukulavai, you have been found guilty by this Court of the manslaughter of Narend Prasad, guilty of four counts of robbery on your own plea and again guilty on your own plea of taking away the rental car and of breaking into Latchman Naidu's house.

[4] You, Pauliasi Nacagilevu, have been found guilty of the murder of Narend Prasad, the assessors obviously finding that it was your admitted hard punch that dropped him to the ground hitting his head with such force that it led to cerebral edema, causing his death.

[5] Isikeli Taulele, you have been found guilty of joining the others in breaking into the house of Latchman Naidu with intent to commit a felony.

[6] Pauliasi Nacagilevu, the law says that I have no option but to pass a sentence of life imprisonment on you, which I now do. In your greed for money you hadn't earned, you lay in wait for a man who was keeping shop to provide for his family and then quite unprovoked, attacked him and then tied him up so that he couldn't move. Your punch as you admit, was hard and you had every intention to cause him serious bodily harm. This taking of a life was unnecessary and gratuitously violent. You will serve a minimum term of imprisonment of 14 years before you are eligible for parole.

[7] I turn now to the robbery offences against the first four of you. The normal range of sentence for robbery with violence is now 10 to 16 years in the High Court; that is after trial (State v Basa – AAU0024/04, Wainiqolo v State – AAU0027/06, and State v Rokonabete – HAC 118/07). However you Ratu Batiniqio Rasaqio, Emosi Dagoya and Sefanaia Nukulavai pleaded guilty at the outset of the trial to the robbery charges and although those pleas were not at the first available opportunity, you will get credit for those pleas.

[8] These robberies of the ladies were particularly abhorrent. You robbed four ladies who were unarmed, you concealed your faces, wore black clothing and carried dangerous weapons. All of which must have led them to be frightened beyond our understanding. You used those weapons to injure Satya Wati, to threaten the others by holding knives at their necks and by tying them up with clothing so they couldn't move. What'smore you even insulted their dignity by making lewd and disgusting requests of them and threatening their lives if they didn't co-operate. All of these I regard as serious aggravating features. For the robbery offences I take a starting point of 10 years and I add four years for the aggravating features.

[9] You all have addressed this Court through your Counsel, advancing powerful points of mitigation. Ratu Batiniqio Rasaqio, you are now 21 years old, being only 18 years old at the time of the offence. You are married with a young child and were unemployed at the time. Your plea of guilty at the beginning of the trial to the robbery offences, and an offer to plead to manslaughter are factors in your favour. You are a young man which is also a mitigating factor. For your mitigation (and the plea of guilty being the major factor) I deduct 5 years leaving a term a term of 10 years. From that ten years I deduct another 12 months to reflect the time you have spent in custody awaiting trial. You will serve a total of 9 years for each robbery, the terms to be served concurrently. And for each of those 9 years you will serve a minimum term of 6 years before being eligible for parole.

[10] Emosi Dagoya, you too were very young when these robberies were committed. You come from a large farming family and your father feeds the family by subsistence farming. You too pleaded guilty which is a major mitigating factor, and you indicated a plea to manslaughter which was not accepted by the State. The starting point and aggravating features total 15 years and from that I deduct 5 years to reflect your pleas and your young age. At the time of the offences you had a clear record which is also in your favour and that is subsumed in the 5 year discount. For the time spent in custody I discount your sentence by another 9 months meaning that you will serve a total term of imprisonment of 9 years 3 months. You will serve 6 years before being eligible for parole. The term of 9 years 3 months will be served for each of the robbery offences concurrently.

[11] Sefaina Nukulavai, very sadly you were 16 years old at the time of the offence and 19 years old now. Your Counsel in a very careful and persuasive written submission submits that your desperately poor domestic upbringing means that you lost all meaning in life. This however does not excuse this violent and greedy behaviour on the 6th October 2007 where those who had made something of their lives had it snatched from them at the end of a cane knife. You have the benefit of a clear record, of your pleas of guilty, of your indication of plea to manslaughter and of your very young age. I am told that you are extremely remorseful. For these mitigating factors I deduct 7 years from the total meaning you will serve a term of 8 years imprisonment. This is the term you will serve for each robbery concurrently and you will serve a minimum term of 5 years before being eligible for parole.

[12] Pauliasi Nacagilevu, you have been found guilty of the four robberies after trial. You are 33 years old and married with two primary school children. You are the sole breadwinner and I am told you are a Christian. I am told that you are very remorseful but that you still maintain your innocence. Remorse and denial of conviction do not sit happily together. You must accept the consequences of your violent behaviour. You have admitted previous convictions and you cannot therefore take credit for a clear record. You do not have the discount afforded to your co-accused for their pleas of guilty and there is no meaningful mitigation that can be advanced otherwise. You will serve a term of 15 years for each robbery count concurrently and in respect of each of those terms you will serve a minimum of 11 years before being considered for parole. These robbery terms will be served concurrently with your term for murder.

[13] Ratu Batiniqio Rasaqio, Emosi Dagoya and Sefanaia Nukulavai, you have been found guilty after trial of housebreaking on your own pleas. The maximum penalty for this offence is 7 years, yet in Epeli Labalaba v State – HAA 0013/05, Shameem J. thought an appropriate term for breaking into a college staff room was 9 months. For you, I take that starting point of 12 months. The aggravating features of night time invasion and fear occasioned to the occupants are already reflected in the offence itself. I deduct 4 months for your plea of guilty and sentence the three of you to 8 months to be served concurrent to your robbery sentences.

[14] Isikeli Taulele, you have been convicted after trial of one offence of housebreaking with intent to commit a felony. Although you have 27 previous convictions, only two of those are "alive", but they do not afford you any credit.

[15] You unfortunately were sitting at the bus stand in Tavua when your co-accused stopped their vehicle and suggested you join them. You did so, and you admitted to the Police that you knew they were "looking for money", yet you did not have the moral fibre to refuse them. You went with them and forced entry to Latchman Naidu's house at 1.30am when that family was sleeping. Mr. Naidu has told the Court that they were "frightened to death". I am very conscious of the fact that your comparatively minor case has been heard along with murder and violent robbery charges against your co-accused, and it must be noted that your sentence is not aggravated by that juxtaposition. Despite your appalling record and to reflect your keeping "clean" for 6 years and for your productivity in cane farming, I discount the starting point by four months meaning you will serve a sentence of 8 months. I have given great thought to whether your sentence should be suspended and in recognition of your circumstances and of the need to rehabilitate those receiving short sentences, I do so suspend your 8 month sentence for a period of two years.

[17] Finally, I turn now to the sentences for manslaughter against the first three accused. As every one of your Counsel has told me, sentences for manslaughter can range from suspended sentences to 12 years imprisonment even though the maximum term is life imprisonment. Suspended sentences are usually passed for this offence where there have been technical breaches of the law and the offence committed by the three of you, Ratu Batiniqio Rasaqio, Emosi Dagoya and Sefanaia Nukulavai in no way can be classed as technical breach. It was an unfortunate death caused by the three of you acting in concert with another in which a fatal blow was delivered to the deceased.

[18] I take into account all that has been said on your behalf, of your youthful ages, your family circumstances, but I must balance that with the loss and pain you have caused to Narend Prasad's family by your behaviour. I take as a starting point a term of four years imprisonment for each of you. These manslaughter terms will be served concurrently with your robbery terms. It is meaningless to assess a minimum term considering the length of your robbery terms, but for completeness and if indeed the robbery terms should "fail" on appeal, I order that you serve a minimum of three years each for the manslaughter.

Count 1	-	Manslaughter	-	4 years imprisonment
Count 2	-	Robbery	-	9 years concurrent
Count 3	-	Robber	-	9 years concurrent
Count 4	-	Robbery	-	9 years concurrent
Count 5	-	Robbery	-	9 years concurrent
Count 6	-	Taking vehicle Without authority	-	6 months concurrent
Count 7	-	Housebreaking	-	8 months concurrent

Count 1	-	Manslaughter	-	4 years imprisonment
Count 2	-	Robbery	-	9 years 3 months
Count 3	-	Robbery	-	9 years 3 months concurrent
Count 4	-	Robbery	-	9 years 3 months concurrent
Count 5	-	Robbery	-	9 years 3 months concurrent
Count 6	-	Taking Vehicle Without authority	-	6 months concurrent
Count 7	-	Housebreaking	-	8 months concurrent

Count 1	-	Manslaughter	-	4 years imprisonment
Count 2	-	Robbery	-	8 years
Count 3	-	Robbery	-	8 years concurrent
Count 4	-	Robbery	-	8 years concurrent
Count 5	-	Robbery	-	8 years concurrent
Count 6	-	Taking Vehicle Without authority	-	6 months concurrent
Count 7	-	Housebreaking	-	8 months concurrent

Count 1	-	Murder	-	life imprisonment
Count 2	-	Robbery	-	15 years concurrent
Count 3	-	Robbery	-	15 years concurrent
Count 4	-	Robbery	-	15 years concurrent
Count 5	-	Robbery	-	15 years concurrent

High Court of Fiji

State v Rasaqio [2010] FJHC 287; HAC155.2007 (9 August 2010)