State v Curubera [1997] FJHC 86; HAC0010T.1997S (11 July 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.HAC0010 OF 1997S

Between:

THE STATE
Appellant

And:

ANANAI CURUBERA
Respondent

Counsel: Mr. J. Naigulevu for The State
Mr. K. Bulewa for Accused

Plea: 9th July 1997

Sentencing: 11th July 1997

REMARKS OF PAIN J. ON SENTENCE

Ananai Curubera you have pleaded guilty to a charge of manslaughter and now appear for sentence.

Manslaughter, the killing of a fellow human being by an unlawful act, is recognized by the legislature as a very serious matter. Jurisdiction to hear such charges is reserved for the High Court. The maximum sentence prescribed is life imprisonment.

However, it is also recognized that the offence can have varying degrees of culpability requiring different sentences. I am conscious of the cases that your counsel has referred to, particularly the 1988 decision of Koroi v The State. In that case the Court of Appeal noted that the scale of sentences for manslaughter in England appeared to extend from 3 to 7 years imprisonment and said:

"Sentences in Fiji for manslaughter have generally ranged from 9 months to 6 years and in a number of cases where the provocation was grave, the sentences have been suspended. Only in exceptionally serious cases where provocation was minimal, have sentences been higher than 6 years imprisonment".

The Court must consider the nature and circumstances of the particular killing and the relative culpability of the offender. A sentence must then be imposed within the acceptable range that is appropriate for the gravity of the offence. That will normally be a sentence of imprisonment. Exceptional circumstances would be needed for any lesser sentence including a suspended sentence.

This offence occurred in the village of Yadrana on the Island of Lakeba. The accused had been drinking home brew that night. About 11 p.m. the deceased invited the accused to join the deceased's drinking party. Almost immediately an altercation occurred between the accused and the deceased. The accused punched the deceased on his eye, felling the deceased. Despite what is recorded in the depositions of the eye witnesses, I must proceed on the basis of the prosecution summary of facts which says that the events that then followed are unclear. Certainly, from the accused's caution statement, there is a conflict. However, it is common ground that, in the course of the ensuing tussle, the accused grabbed hold of a concrete block and struck the deceased twice on the head with it. The deceased suffered severe head injuries that caused his death an hour and a half later.

Considerable culpability falls on the accused for this offending. He started the altercation by deliberately punching the deceased. Then, in whatever tussle ensued, the accused resorted to the use of a weapon in the form of a concrete block. He struck the deceased twice on the head. The first blow was dealt with sufficient force to cause the block to break. The blows were of a sufficient severity to cause 2 skull fractures, lacerations, bruising, subarachnoid bleeding and a subdural haematoma. It was an attack of considerable ferocity for which there was minimal provocation or reason.

Nevertheless I do have regard to the matters urged in mitigation by counsel. The accused was affected by liquor. This may explain his conduct but it cannot excuse the offending. The incident occurred in a village setting but that does not make the consequences any less tragic. The accused perceived the deceased's refusal to serve him a drink as insulting and this is the explanation given for the punch. The accused explains that the deceased then responded by grabbing hold of him. The deceased gained a superior position and the accused says he used the concrete block out of concern for his own safety and to release the deceased's grip upon him. The accused pleaded guilty as soon as the charge was reduced. For sentencing purposes he should be regarded as a first offender. He is remorseful and has resolved his wrongdoing in traditional fashion. During the period spent in custody on remand the Accused has returned to the fold of his Church and regained his former position as a lay preacher.

Despite all these matters that were so eloquently urged by counsel, the fact remains that the accused initiated the violence and resorted to the use of a weapon. He used unnecessary and extreme force that took the life of the deceased. Life is precious and its value should not be under estimated. An immediate prison sentence must be imposed. A suspended sentence as submitted by counsel is not appropriate.

Considering the particular facts of the offending and weighing in the balance the matters advanced by counsel for the accused I consider that the appropriate sentence for this crime is 5 years imprisonment. The accused spent just over 12 months in custody on remand. With normal remission that is equivalent to a sentence of 18 months imprisonment. He is entitled to a reduction for that.

The accused is convicted and sentenced to 3½ years imprisonment.

Justice D.B. Pain