State v Rabuku - Ruling [2014] FJCA 12; AAU0087.2012 (24 February 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO: AAU0087 OF 2012
(Lautoka High Court Case No. HAC163L)

BETWEEN:

THE STATE
Appellant

AND:

SEREIMA LIKUVEITAU RABUKU
Respondent

Coram : Goundar JA
Counsel : Mr. M. Delaney for the Appellant
No appearance for the Respondent

Date of Hearing : 19 February 2014
Date of Ruling : 24 February 2014

RULING

[1] On 28 June 2012, the respondent was sentenced to 18 months imprisonment for manslaughter by criminal negligence. It is against that sentence that the State seeks leave to appeal under section 21 (2) (c) of the Court of Appeal Act.

[2] The facts were that the respondent was hired as a house maid by a couple residing in Nadi. Her responsibilities included doing domestic chores and minding a 1-year old infant. On 23 May 2011, the respondent after feeding the infant got her ready for a bath. While she was in the bathroom with the infant, she realized she had not turned off the kerosene stove in the kitchen. She placed the infant in the bucket of hot water and rushed into the kitchen to turn off the stove. When she returned to the bathroom she saw the infant had burnt herself. She picked up the infant and rushed to the neighbours for assistance. The infant was taken to the hospital but she died a few days later. Post mortem examination revealed that the infant died from first degree burns to her body. The State's case was that the respondent ought to have known that there was a significant risk that the infant may suffer serious harm if negligently placed in hot water without checking the temperature first, and that she was reckless as to that risk.

[3] In the High Court, the respondent was represented by counsel. She entered an early guilty plea and expressed remorse. She was a first time offender. The learned judge referred to the case of Kim Nam Bae and said the tariff for manslaughter ranged from a suspended sentence to 12 years imprisonment. He took a starting point of 3 years and after adjusting for the mitigating and aggravating factors arrived at a term of 18 months imprisonment. He ordered that the respondent serve 3 months in prison and the balance was suspended for 3 years. The respondent had served her 3 months in prison and had been released. Her current residential address is unknown and she could not be served with the notice of hearing for this application.

[4] The sole ground of appeal advanced by the State is that the respondent's sentence is manifestly lenient in all the circumstances of this case. The State also seeks guidelines for sentencing in manslaughter cases.

[5] While I accept that the Court of Appeal has power to issue sentencing guidelines under section 6 of the Sentencing and Penalties Decree, such consideration is not a matter that can be taken into account at leave stage. If leave is granted, then it is a matter for the Full Court to consider whether guidelines should be issued.

[6] To succeed in this application for leave, the State must demonstrate that the proposed ground of appeal is arguable before the Full Court (Jekesoni Yavala v The State Criminal Appeal No. AAU19 of 2011 at [9]). It is for the State to show that the sentencing court fell into error in exercising its sentencing discretion (Kim Nam Bae v The State unreported Cr. App. AAU15 of 1998).

[7] Manslaughter is a form of homicide that can arise from a range of circumstances. The facts of this case are unique and tragic. I have not been referred to any other case where a house maid has been handed imprisonment sentence for negligent manslaughter of an infant under her control and care. It appears such cases rarely come before the courts in Fiji. The learned judge arrived at a partial custodial and partial suspended sentence based on the circumstances of this case. As the Court of Appeal said in Kim Nam Bae at p.4:

"The task of sentencing is not an exact science which is capable of mathematical calculation. This is particularly so with manslaughter where the circumstances and the offender's culpability can vary greatly from case to case. An appropriate sentence in any case is fixed by having regard to a variety of competing considerations. In order to arrive at the appropriate penalty for any case, the courts must have regard to sentences imposed by the High Court and the Court of Appeal for offences of the type in question to determine the appropriate range of sentence.

The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence where there may have been grave provocation to 12 years imprisonment where the degree of violence is high and provocation is minimal. It is important to bear in mind that this range covers a very wide set of varying circumstances which attract different sentences in different manslaughter cases. Each case will attract the appropriate sentence within the range depending on its own facts."

[8] The respondent's sentence is clearly within the tariff for manslaughter cases and the State has failed to establish an arguable ground to disturb that sentence.

[9] Leave to appeal against sentence is refused.

.....................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL