IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 32 of 2015

STATE

V

SIUTA SERU 
             1ST ACCUSED
ASAELI RABOLECA
              2ND ACCUSED

Counsels:	Mr. L. Fotofili for the State
		Mr. A. Paka (L.A.C.) for 1st Accused
		Mr. I. Rakaria (L.A.C.) for 2nd 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 19th 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 19th) 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