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Bitu v State [2013] FJCA 7; AAU76.2010 (1 February 2013)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU76 OF 2010
[High Court Criminal Action No. HAC 2 of 2010]

BETWEEN:

VILIAME BITU
MOHAMED RAFIQ
Appellants

AND:

THE STATE
Respondent

Coram : Chandra RJA
Counsel : Appellants in Person
Mr M. Korovou for the Respondent

Date of Hearing : 12 October 2012
Date of Ruling : 1 February 2013

RULING

1. This is an application for leave to appeal against conviction and sentence, but on the date of hearing the Appellants confined their application to their appeal against sentence only.
   
2. The Appellants were charged for the count of conspiracy to murder contrary to section 217 of the penal Code (Cap.17) and the count of attempted murder contrary to section 214(b) of the Penal Code (Cap.17).
   
3. The Appellants pleaded guilty and were convicted and sentenced to 4 years imprisonment for the conspiracy to murder charge and to 9 years imprisonment for attempted murder, both sentences to run concurrently.
   
4. The ground urged by the Appellants in appealing against their sentence was that the sentence was harsh and excessive.
   
5. The Appellants had been charged for conspiracy to murder and for attempted murder as they had conspired to murder Jack Prasad and to cause the death of Anila Devi Singh by dropping a stone on her head. They changed their previous pleas and pleaded guilty to the charges as per the information and admitted the summary of facts.
   
6. Any person who conspires with any other person to kill any person, is liable to imprisonment for fourteen years. The tariff that has been considered to be in the range of 3 to 7 years imprisonment for such offences.
   
7. The learned trial Judge commenced the sentencing at 5 years and having considered the aggravating and mitigating factors imposed a sentence of 4 years imprisonment.
   
8. The tariff that was considered by the learned trial Judge was in keeping with the decision in Takiveikata v The State [2010] FJHC 75 where eight persons who were charged for conspiracy were convicted and sentenced to periods of three to seven years of imprisonment. Therefore the learned trial Judge considering the tariff in the range of 3 to 7 years cannot be said to be erroneous and the sentences of 4 years imprisonment imposed on the Appellants on the count of conspiracy are not harsh and excessive.
   
9. The punishment for attempted murder is life imprisonment. The learned trial Judge having considered decisions which dealt with the tariff for such offences, considered the tariff between 8 to 10 years and commenced at 10 years. Thereafter having considered the aggravating and mitigating factors sentenced the Appellants to 9 years imprisonment.
   
10. Regarding the charge of attempted murder the learned trial charge had taken into account the decisions in several cases and arrived at the tariff between 8 to 10 years and imposed the sentences on the Appellants having considered the aggravating and mitigating circumstances.
    
11. In R v Johnson [1994] Crim.L.R. 537 it was held that an appeal against sentence will only succeed where the sentence was unlawful, wrong in principle or manifestly excessive. This principle has been applied in Fiji too in Kuldip Singh v The State [1998] FJCA 55.
    
12. As the sentences imposed by the learned trial Judge were well within the tariff and were not manifestly excessive, leave to appeal against sentence is refused.
    

Order of Court

The Appeals of the Appellants seeking leave to appeal against sentence is refused.

Suresh Chandra
Resident Justice of Appeal