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State v Bitu [2010] FJHC 372; HAC002.2010 (2 September 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 002 OF 2010

BETWEEN:

STATE

AND:

1. VILIAME BITU
2. MOHAMMED RAFIQ
   

Counsel: Ms Bull - for the State
Mr. Lee - for the Accused

Date of Hearing: 03.08.10, 10.08.10, 12.08.10, 24.08.10, 25.08.10, 26.08.10, 30.08.10
Date of Sentence: 02.09.200

SENTENCE

1. The director of Public Prosecutions preferred charges against both of you as mentioned below.

COUNT 1

Statement of Offence

CONSPIRACY TO MURDER: Contrary to section 217 of the Penal Code, Cap 17.

Particulars of Offence

VILIAME BITU and MOHAMMED RAFIQ on the 26th day of October 2009 at Luvuluvu, Bua, in the Northern Division, conspired together to murder Jack Prasad.

COUNT 1

Statement of Offence

ATTEMPTED MURDER: Contrary to section 214(b) of the Penal Code, Cap 17.

Particulars of Offence

VILIAME BITU and MOHAMMED RAFIQ on the 26th day of October 2009 at Luvuluvu, Bua, in the Northern Division, with intent to cause the death of Anila Devi Singh, unlawfully dropped a stone on the head of the said Anila Devi Singh, such act being likely to endanger human life.

2. On the 25th August 2010 when the case was called before me both of you changed your previous plea of not guilty and pleaded guilty to the charges as per the information and admitted the summary of facts also.

3. On accepting your plea to be unequivocal I convicted both of you as charged.

4. Now I consider the relevant law.

Section 217 of the Penal Code -

"Any person who conspires with any other person to kill any person, whether such person is in Fiji or elsewhere, is guilty of a felony, is liable to imprisonment for fourteen years."

5. Tariff to the above section considered in many cases.

In State v Takiveikata [2010] FJHC 75; HAC009.2008 (5 March 2010), Madigan J took 6 years as a starting point for all the accused persons, and sentenced the eight (8) accused to sentences ranging from 3 – 7 years imprisonment. A number of accused person in that case were high profile influential personalities in the political and business arena in Fiji, and the conspiracy was to kill the Commander of the Fiji Military Forces and head of the Fiji Government. In sentencing, His Lordship stated in paragraph 7:

"By its very nature, a sentenced for a conspiracy charge cannot favor or disfavor any particular conspirator. They are "in it together" and will be punished together. The Court can nevertheless make adjustments to the sentences to reflect the roles of ringleader, organizers or "footsoldiers".

6. Considering above case the tariff to the offence of conspiracy is between 3 to 7 years. I commence your sentencing at 5 years.

7. Considering your aggravating factors which I discuss under the offence of attempted murder, I add 2 years imprisonment. Now your sentence is 7 years imprisonment.

8. Considering the mitigating factors which I consider under the offence of attempted murder, I reduce 3 years. Now your sentence is 4 years imprisonment.

9. Now I consider the sentence for the offence of attempted murder. Section 214(b) of the Penal Code states as follows:

"With intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to likely to endanger human life, is guilty of a felony, and is liable to imprisonment for life. "

10. The tariff to this offence was discussed in many case Laws.

11. In State v Manieta Navonovono CA HAC0017 of 2001L, Govind J stated that "apart from punishment for this crime the Courts must sternly sentence offenders to deter others." This was approved of by Winter J in State v Ledua [2004] HAC 003/04 24 June 2004.

12. In State v Ledua [2004] HAC 003/04 24 June 2004, the accused was sentenced to 10 years imprisonment for attempting to murder his daughter with a bayonet. His appeal against sentence to the Fiji Court of Appeal was dismissed.

13. In State v Swamy [2007] FJHC 78; HAC029S.06 (29 November 2007), the accused pleaded guilty to 3 counts of attempted murder. The facts were that he had struck his mother and two others on the face, head, and neck with a chopper. Shameem J (as she then was) referred to Prasad v State (ante) and took the same starting point of 9 years. Her Ladyship added 2 years for the aggravating factors, namely, the degree of premeditation, the use of a dangerous weapon, the lasting injuries on the victims, and the betrayal of trust. For the guilty plea, a two year reduction was given, with the ultimate sentence being 9 years imprisonment

14. In Prasad v State [2008] FJCA 48; AAU111.2007S (8 August 2008), Goundar J, sitting as a single judge of the Court of Appeal, found that a sentence of 8 years imprisonment of a husband who had attempted to murder his de facto spouse by tying her to a tree and then setting her alight, was within the tariff for attempted murder. In the High Court, the sentencing judge had chosen 9 years as his starting point. When the appeal came before the Full Court of the Court of Appeal, the sentence was reduced from 8 years to 7 years, to account for the time spent in remand prior to pleading guilty.

15. In Waqanivalu v State [2008] FJSC 44; CAV0005.2007 (27 February 2008), the Supreme Court refused special leave to appeal against the sentences imposed by the High Court and upheld by the Fiji Court of Appeal. The petitioner had been convicted for 5 counts of murder and one of attempted murder. For the attempted murder charge, he was sentenced to 10 years imprisonment.

16. In State v Sharma [2009] FJHC 62; HAC045.2008 (4 March 2009), Singh J sentenced the accused to 11 years in prison. In sentencing, His Lordship cited State v Rajendra Samy HAC 029S.06 and State v Bobby Hemant Prasad HAC 52 of 2007, and said that "the usual starting point for attempted murder is a nine year prison term."

17. Considering above cases the tariff to attempted murder can be considered between 8 years to 11 years. Considering the way you planned the offence and execution of the plan, I commence at 10 years.

18. Now I consider the aggravating factors.

1. Both of you have very well planned to kill the victim Anila Devi

Singh.

2. Victims were 52 years and 72 years old.
   

100. Mohammed Rafiq – you were employed at the victim's place and

betrayed them.

Considering above aggravating factors, I add 3 years. Now your sentence is 13 years imprisonment.

19. Now I consider your mitigating circumstances.

1. You have pleaded guilty at early stage of trial.
   
2. Both of you are young adults.
   

100. Both of you co-operated with the police.
     

4. Your period in remand.
   
5. Both of you are first offenders.
   
6. Both of you are remorseful.
   

Considering all above mitigating factors, I reduce 4 years. Now your sentence is 9 years imprisonment.

20. The State submits, in light of the sentencing tariffs for Conspiracy to Murder and for Attempted Murder, that a consecutive sentence could remove any prospect of rehabilitation from the young first offenders. (State v Susu [2010] FJHC 226; HAC054.2010; HAC055.2010 (2 July 2010).

In Krishna and Others v Reg (1962) 8 FLR 236, at p.237, MacDuff CJ said,

"...Furthermore, the court's duty after imposing sentence, is to ensure that the sentence is proportionate to the total offending."

21. Considering the young age and the nature of the offences, I order to run both sentences 4 years and 9 years to run concurrently.

22. 30 days to appeal.

S. Thurairaja
JUDGE

Solicitors: - Office of the Director of Public Prosecutions for State
- Office of the Legal Aid Commission for Accused