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Navamocea v State [2008] FJSC 21; CAV0010.2008 (15 October 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0010 OF 2008
(Fiji Court of Appeal No AAU0002 of 2006)

BETWEEN:

VILMONI NAVAMOCEA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice, Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Wednesday, 15th October 2008, Suva

Counsel: The Petitioner in person
Mr P.K. Bulamainaivalu for the Respondent

Date of Judgment: Wednesday, 15th October 2008, Suva

JUDGMENT OF THE COURT

1. The petitioner seeks special leave to appeal from a judgment of the Court of Appeal given on 25 June 2007 in which his appeal against a sentence of eight years imprisonment for manslaughter, and four years imprisonment for robbery with violence, wholly concurrent, was dismissed.

2. The petitioner was tried in the High Court at Latouka before Connors J and assessors on one count of murder and one count of robbery with violence. He was acquitted of murder. However, he was found guilty instead of manslaughter, and convicted also of robbery with violence.

3. The circumstances surrounding these offences may be briefly stated. The petitioner and two others had been drinking alcohol, and smoking marijuana. Needing money in order to purchase more beer, the petitioner and one of his companions agreed to carry out a robbery. They armed themselves with two pieces of wood from where they had been cutting timber earlier that day. Their target was an Indian man who was known to them. They then lay in wait. The deceased approached along the road and the two men attacked him, though they did not at that stage use the pieces of wood to inflict harm upon him. The deceased was able to escape, leaving behind his watch and shoes.

4. The two men then ran to the deceased’s home, reaching it before he arrived. They broke in and waited for him. When the deceased entered he was struck on the head with the wood, and then robbed of his money. His attackers then fled.

5. The deceased died shortly afterwards in hospital. The cause of death was acute blood loss secondary to a depressed fracture of the skull.

6. The grounds in support of the petition may be summarised as follows:

• that the Court of Appeal failed properly to consider the petitioner’s age, and background;
• that the Court of Appeal failed to consider the fact that he was a first offender;
• that the Court of Appeal failed to consider the effect of the sentence upon the petitioner’s family; and
• that the sentence imposed was manifestly excessive and wrong in principle.
  

7. The Court of Appeal observed that the trial judge had specifically noted that the petitioner was a first offender, and had dealt in some detail with his family circumstances, both past and present.

8. The one point that attracted the attention of the Court of Appeal was the petitioner’s contention, before that Court that, as an unrepresented accused, he had been unaware of his right to plead guilty to manslaughter in answer to the charge of murder. Had he in fact done so, he might have been given some credit for that plea of guilty. Nonetheless, the Court was satisfied, after considering all of the circumstances, that the overall sentence of eight years that had been imposed was lenient, and did not warrant any reduction.

9. In arriving at that conclusion, the Court of Appeal identified the salient features of this case which made the petitioner’s conduct on the day in question particularly culpable.

10. In the words of the Court of Appeal:

"[19] The facts of this case showed a young man who for the sake of continuing drinking, was willing to attack an innocent man. Having failed to obtain the money he and his accomplice needed they lay in ambush in the victim’s own home; the place where above all other he has a right to feel safe. They then attacked him again with such violence that his skull was fractured. Having taken the cash, they left the victim dying on the floor and returned to their drinking. We consider those factors could have merited a starting point of more than ten years imprisonment.

[20] Although the judge properly allowed for mitigating factors, he did not cite any aggravating circumstances yet there were many. The offence was committed by more than one person, the attackers were willing to pursue their victim and repeat the offence with increased violence, they were armed with weapons and used them with sufficient force to cause the fatal injury and they left with no apparent concern for the offence they had committed or the welfare of their victim. We should suggest that those would more than off set the effect of the mitigation considered by the judge".

11. It is plain that the petitioner’s grounds in support of this application do not meet the criteria prescribed under s 7(2) of the Supremrt Act 19ct 1998. There is no question of general legal importance involved in this matter. Nor is there any substantial question of principle affecting the admration of criminal justice. Finally, no substantial or grav grave injustice has been done. Rather, this is simply an attempt to have this Court reconsider a sentence which, palpably, merits the description "lenient" accorded to it by the Court of Appeal.

12. Special leave is refused, and the petition is dismissed.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:

The Petitioner in person
Office of the Director of Public Prosecutions, Suva for the Respondent