State v Baleimila [1994] FJHC 24; Haa0019t.93s (15 March 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAA0019 OF 1993

THE STATE

v

1. MACIU SIKOA BALEIMILA
2. INOKE BALEIMILA

Counsel: Mr. Tuiqereqere for State
Mr. Bale and Mr. Seru for Accused

Conviction: 14 March l994
Sentence: 15 March l994

SENTENCING REMARKS OF PAIN J.

The two accused pleaded guilty to a charge of manslaughter. A third accused pleaded not guilty. The State offered no evidence against that third accused because of a lack of specific evidence of identification. He was therefore acquitted.

The charge against the accused arises out of an altercation in the Ambassador Night Club at Nausori on the night of the 19th December, l992.

The basic facts have been outlined in the second and third paragraphs of the prosecution summary as follows:

"Josua Tuiqaqa and his girlfriend, upon entering the Nightclub, had several dances together. While walking back to their table at the end of their dancing Josua became involved in a fist fight with the first accused, Maciu Balemila. According to several witnesses Josua was having the better of Maciu. At this stage the second accused, Inoke Balemila - Maciu's brother - came to the aid of Maciu. Inoke punched Josua causing Josua to fall to the floor.

Josua attempted to get himself up from the floor. However Inoke and Maciu prevented him from doing so by punching and kicking Josua around the face, neck and chest."

That is not the whole story. There is evidence in the depositions that a third person joined in the attack and struck Josua on the face with a bottle of beer and also evidence that others participated in the attack. It is clear that Josua received a savage and severe beating that rendered him unconscious. The pathologists report details extensive bruising and lacerations. Josua died that night from a traumatic brain haemorrhage caused by multiple extensive injuries to his head and neck.

It is not possible to say which accused caused any particular injury to the deceased - but all persons who join in a concerted attack of such ferocity are criminally responsible for the death that occurred.

The evidence is that the initial fight was one on one, between the lst Accused and the deceased. The second accused intervened. He admits going to his brother's assistance and there is evidence that he punched the deceased causing him to fall to the floor. In any event the deceased ended up on the floor. There can be no suggestion that he had suffered serious injury at that stage. The matter should have ended there. Instead, while the deceased was on the floor, he was subjected to a severe beating. The first and second accused were principal participants. They continued to punch and kick him. It was a cowardly and cruel attack on a helpless victim. Such violence is totally unacceptable in the community and perpetrators can expect substantial sentences.

I take into account what has been said on behalf of the accused. In particular, neither has any previous convictions, both have made some progress in the community and both have pleaded guilty to the charge. Counsel on their behalf has made careful and extensive submissions and they themselves have been permitted to make statements. I have given full consideration to all the matters raised.

In fixing the appropriate sentence I must have regard to the gravity of the offending. The charge is manslaughter which carries a substantial maximum penalty. A death has been caused and provocation for such a sustained attack cannot be regarded as substantial. However I do not overlook the fact that a blow with a bottle of beer by some third person and participation by others may have contributed to the deceased's injuries. I accept that the attack was spontaneous with no premeditation or planning. No weapons were used by these two accused. Nevertheless, they initiated and conducted a vicious attack on the deceased when he was in a defenceless position on the floor.

I have read and considered several Court of Appeal decisions dealing with sentences in manslaughter cases. The cases of Koroi v The State and Chetty and Kumar v The State give helpful guidance.

The State has particularly referred to the Court of Appeal decision of Koroi v The State. Counsel for the accused has referred me to several High Court sentences as a basis for a suspended sentence in this case.

In my view the circumstances in this case are clearly different from those in the other cases referred to. In terms of the sentencing principles enunciated by the Court of Appeal, the appropriate sentence in this case is a term of imprisonment.

I see no reason to differentiate between the two accused. I take into account in their favour the various matters I have already mentioned and the fact that both spent 6 months in custody on remand. These factors substantially mitigate the sentence that would otherwise be imposed.

Each is sentenced to 3 1/2 years imprisonment.

D.B. Pain
JUDGE

HAA0019T.93S