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State v Seru [2016] FJHC 841; HAC32.2015 (21 September 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 32 of 2015

STATE

V

SIUTA SERU
1^ST ACCUSED
ASAELI RABOLECA
2^ND ACCUSED

Counsels: Mr. L. Fotofili for the State
Mr. A. Paka (L.A.C.) for 1^st Accused
Mr. I. Rakaria (L.A.C.) for 2^nd Accused

Dates of Conviction : 16 September 2016
Date of Sentence : 21 September 2016

SENTENCE

[1] The two accused faced one joint count of aggravated robbery and the first accused faced two additional charges of murder and attempted arson.

[2] After trial in this Court they were both convicted of these charges and now stand to be sentenced.

[3] On the 19^th August 2012, the first accused had been drinking grog followed by rum for some 9 hours until 5am.

[4] Prior to this a plan had already been agreed between both accused to go on that day (the 19^th) to the home of an elderly Indo-Fijian in a neighboring village and steal from him. It was suspected that he kept small amounts of money in the house, money earned from the sale of tobacco and goats.

[5] The first accused left the rum party and went to the home of the second accused, waking him up. Both set off to the village of Naqilimoto, each carrying a cane knife. On arrival at the house of the deceased Babu Ram (“BR”) they covered their faces and surprised BR who was having his breakfast.

[6] They seized the old man and demanded money from him. He showed them a coin box with a few coins but they demanded more while holding their knives. The first accused ransacked the house and found a wallet which contained $250. He took it. At this stage a third man approached the house calling out the name of the victim. The second accused went outside and chased the visitor away by brandishing his knife. The first accused then struck a heavy blow to the old man’s neck with his cane knife. He said he did this because the old man knew both of the assailants and would be able to identify them as the robbers. The old man fell to the ground and the first accused used benzene fuel he found inside the house and pouring it around the house intended to burn the house down to cover up his act of chopping the old man. He then lit a match to set the building alight. He then fled by the kitchen door.
[7] The pair then met up again and rode their horses back to Cubue Settlement. On nearing home, they paused and shared the cash stolen between them.

[8] The house did not burn.

[9] Both accused led the Police to a reconstruction of the crime in Naqilimoto village.

[10] The pathologist has opined that the cause of death of BR was the excessive loss of blood caused by a deep and severe chop wound to the neck.

The Law

[11] Murder carries a mandatory sentence of life imprisonment with a discretion available to the Judge to set a minimum term before pardon may be considered.

[12] Attempted arson attracts a maximum penalty of 14 years imprisonment.

[13] Aggravated robbery attracts a maximum sentence of 20 years imprisonment.

[14] The setting of a minimum term for murder is not an easy task for a Judge. There has to be a balance set between the competing interests of the accused and those of the community who expect condign punishment for the unlawful taking of a life. For those reasons murders which are senseless, and particularly violent will be visited with longer minimum terms than murders which are reckless and not premeditated.

[15] There is no predetermined tariff for the crime of attempted arson but the accepted sentences for arson itself range from 2 years to 10 years. Two years has been held to be appropriate where there is no danger to human life and 4 years where there is such a danger. These are sentences passed for a crime with the maximum penalty of life imprisonment, and there is no reason why a tariff for attempted arson should be more.

[16] If then there is an attempt to burn down a building then an appropriate sentence would start from a term of two years. If the attempt is to harm persons inside the building or is reckless as to whether there would be harm to inhabitants then the sentence should be one of at least 4 years. If the attempt is an attempt to effect large scale arson, for example on a large scale shopping area or a sensitive Government building then the sentence could be in the range to 7 to 10 years. (See Damodar Naidu & Anor v R. C.A. (1978) FLR93).

[17] Sentences for aggravated Robbery must be in the range of ten to sixteen years. (Wallace Wise CAV0004of 2015 (24 April 2015)). In that case the Supreme Court held that aggravating factors could include:

• Premeditation or some planning
• Frightening circumstances such as breaking windows or wearing masks
• Weapons used to inflict injury
• Victims elderly or vulnerable including small children.
  

Discussion

[18] This murder was particularly repugnant. Babu Ram was a defenceless old man alone in his house in the early morning. He was faced by two masked men carrying cane knives and after being forced to surrender his cash at hand was viciously and forcefully struck on his neck with a cane knife. He had offered no provocation nor resistance to the assailant. He was killed only so that he would not bear witness to the two invaders whom he well knew.

[19] If killing him was not enough the first accused then attempted to erase evidence of his deeds by attempting to burn Babu Ram’s house down.

[20] The aggravated robbery was premeditated and discussed by the two accused a few days before they embarked on the enterprise. Both accused invaded the house and subdued the victim. The second accused left the house to deal with the unexpected visitor but on meeting up again with the first accused they shared the booty.

Sentencing the First Accused

[21] The Court sentences the first accused to a term of life imprisonment for the murder. That is a sentence fixed by law but I turn now to consider a minimum term.

[22] I have regard to the aggravating features of being masked, and the invasion of an elderly man’s home.

[23] It was an unnecessary and brutal intentional murder. I balance that with the young age of the accused and the need for him to have the prospect of rehabilitation and a later life at liberty.

[24] I order that he spend a minimum of 19 years imprisonment before pardon can be considered.
[25] For the offence of aggravated robbery I sentence him to a term of twelve years imprisonment to be served concurrently with the murder sentence.

[26] For attempted arson I sentence him to 5 years imprisonment also concurrent to the other two terms.

Sentencing the second accused

[27] The second accused played no part in and I find that he could not have contemplated the murder. It was certainly no part of the agreement to rob.

[28] He did however play a large part in the joint enterprise in that there is evidence that he willingly joined in the planning and he rode to BR’s house in contemplation of robbery. He joined in tying up and securing the victim and he shared in the monies stolen.

[29] There are no circumstances that would reduce the sentence faced by the first accused for this crime and he is therefore sentenced to 12 years imprisonment. The same aggravating features pertain.

[30] He is to serve a minimum term of 9 years before he is eligible for parole.

P. K. Madigan
Judge

At Labasa
21 September 2016