State v Neimila [2001] FJHC 104; Hac0011.1998l (29 May 2001)

IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
CRIMINAL JURISDICTION

No. HAC0011 of 1998L

STATE

v

SAMUELA NEIMILA
and JOSAIA NACIKA

Date of Hearing: 23 May 2001
Date of Sentence: 29 May 2001

Mr. A. Patel for the Accused
Mrs L. Fagbenro for the State

SENTENCE

This is yet another case of a family conflict resulting in the death of a sibling.

In this case the deceased ULAIASI VANAVANA was the younger brother of both the Accused. Accused 2 was the oldest of the three, from a family of four sons and one daughter.

On 5^th day of December 1997 at around 1100hours, the deceased, Accused 2 and their youngest Brother one Saula Vurai had accompanied their father into Sigatoka town in their family van Reg. No. CZ217 for a shopping trip. In town, the deceased met two of his fellow village friends. The three of them contributed money and bought 2 cartons of large bottle beer and everyone started to drink from 12 midday to after 2.00pm. They were drinking inside the van, whilst the deceased’s father completed the shopping.

On their way back to Malomalo village, the deceased borrowed $10.00 from his father and with his own addition, bought another carton of beer at a supermarket at Naidovi, Nadroga.

Upon arrival at their village, the deceased, borrowed $10.00 from his father and with his own addition, bought another carton of beer at a supermarket at Naidovi, Nadroga.

Upon arrival at their village, the deceased, his younger brother Saula Vurai and the two Fijian youths who travelled with them into the house of Accused 2. They took with them the unopened carton beer and a carton of empty beer bottles. They all entered through the kitchen which was an extended part of the main building. The deceased normally stayed in this house. Inside this house of Accused 2 were three other villages who were drinking kava.

At some stage, the deceased who was very drunk, entered the kitchen. He kicked the empty beer bottles carton and a bottle of two broke into pieces. He asked who all were drinking grog inside the main building. Deceased was warned by his younger brother Saula Vurai to behave himself. The deceased then walked out of the kitchen.

At this time Accused 1 was at his home (about ¾ chain away) when the deceased went to invite him to join them in drinking beer at Accused 2’s house. Accused one accepted the invitation.

At the house of Accused 2, the deceased told Accused 1 to enter into the kitchen window, where others were drinking. He held Accused 1 by his belt and began to force him through the opening on the wall towards the kitchen cubicle i.e. through a window-like opening in the wall. The deceased kept on forcing the Accused 1 through this opening for about 10 minutes but did not succeed. The deceased then started to punch Accused 1.

Accused 1 got annoyed with the deceased and an exchange of punches occurred between the two of them. He punched the deceased about six times, one punch on his mouth and the rest on his chest.

Upon noticing the two, Accused 2 joined in and also landed punches on the deceased at his cheek and close to the shoulder. Before Accused 2 fisted the deceased he said in Fijian “Oqo ga na ka o via gunu kina nikua” meaning “Is this the reason why you wanted to drink today.”

As a result of the punching by both accused the deceased landed on the solid earth floor, covered with woven bamboo trunks, unconscious with blood coming out of his nose. Attempts to revive the deceased were futile. He was rushed to Sigatoka Hospital where he was pronounced dead on arrival.

The Post Mortem examination notes the following:

EXTERNAL EXAMINATION

1. Multiple superficial bruises with swelling on face and neck

2. Small haemetoma on Right Occipital area

3. Multiple bruises and superficial abrasions of the upper chest, more pronounced on Right lateral side.

INTERNAL INJURIES

1. Diffuse scalp haemetoma more pronounced on both occipitoparietal regions.

2. Brain, Reveals diffuse extensive sub-oraachnoid haemorrhages most poinced on parieto-occipital region both sides and around pons medulla and cerebellum.

Both the lateral ventricles are also filled with fresh blood clots. Focal areas of untra cerebral (parenchymal) haemorrhage also noted.

3. Superficial haemorrhages and confusions are noted in subcutaneous and adjacent muscular-coetaneous tissue over the anterior chest wall and right lateral chest wall No rib # noted.

Thoracic Cavity: Right lung pleura reveals superficial haemorrhages of upper and middle lobe. Rest of lungs unremarkable.

THE OTHER ORGANS : Unremarkable

THE CAUSE OF DEATH: Extensive (Diffuse) Sub-arachnoid haemorrhages.

When interviewed by the Police after their arrest, both Accused 1 and Accused 2 admitted punching the deceased. Accused 1 claimed to have done it to in retaliation to “save” himself, while Accused 2 admitted punching deceased only to “stop him from being so drunkard...”

Accused 1 is about 38 years old while Accused 2 is about 41 years old. Both accused are married with children. Their father, who came to Court to speak in mitigation, is a high chief of his region. He is now 81 years. It is clear from his demeanour and what he said in Court that this crisis within the family is a sad occasion for him. He lost a son and two of the others are charged with the serious offence of manslaughter. He was aware of the circumstances in which his younger son died at the hands of his brothers. He has forgiven his accused sons and pleads for mercy. There was no enmity between his sons, and they never fought or quarrelled. According to him the death was accidental. His son Josaia (Accused 2) was likely to take over his responsibilities when he dies. He is sickly now. Josaia has been trained and fulfils many of his father's traditional obligations as a high chief.

In mitigation on behalf of the two accused learned Defence Counsel has pleaded for the utmost leniency given the facts and circumstances of this case. In very eloquent terms Counsel has urged the Court to consider a Section 44 Penal Code discharges for the accused. Both accused have no previous convictions. They are good character until this unfortunate event. They have been groomed to discharge the chiefly obligations of their family.

The facts of the case indicate that the case is one in the lowest rung of manslaughter. It is a borderline case. There was no intent to cause grievous harm. It was the deceased who was drunk and aggressive. Their intention was to correct the behaviour of their youngest brother. Within their village system and tradition what they did was lawful correction of their brother’s behaviour. The memory of their brother's death was sufficient punishment. They are unlikely to commit an offence again.

I am grateful for the submissions of both Counsels. The State Counsel has tendered the relevant authorities in sentencing manslaughter cases in Fiji.

This Court had considered much of the relevant principles of sentencing and applicable authorities in the case of State v. Ramendra Chandra Ltk H. Ct Cr Case HAC008/1999L.

According to Blackstones (1999 edition) “English law has always regarded the causing of the death of a man as an offence of great gravity, although the circumstances in which death is caused are manifestly relevant to assessing the degree of criminal responsibility and wickedness” (page 1209). In reviewing earlier authorities on involuntary manslaughter Lord Lane C. J. in Coleman (1991) 95 Cr. App R 159 had stated that in a case of voluntary manslaughter where the victim was felled by a blow, cracked his head on the floor or pavement and suffered a fracture of the skull and died, the starting point for sentence on a plea of guilty was 12 months. According to Blackstones the relevant mitigating factors are:

(a) absence of premeditation

(b) the fact that the injury resulted from a single blow of moderate force;

(c) remorse, and

(d) immediate admission of guilt.

These factors have also been considered as appropriate by the Courts in Fiji in considering sentences for Manslaughter. (see, for example, Shiu Sami and Shiu Kumar s/o Narayan Sami v. State FCA Cr. Appeal No. AAU0007 of 1995; Ram Pratap v. State FCA CR. Appeal No. 7 of 1989); State v Maika Jitoko Cr. Action 21/91S; State v. Ratu Duikete Cr Action 20/91S. The most authorities case for Fiji, available to the Court is the 1999 Court of Appeal judgment of Kim Nam Bae v State Cr. App No. AAU0015 of 1998S). The Court of Appeal reiterated the correct approach to be adopted in manslaughter cases. It states:

“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 capability 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 sentence 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 they 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” (pp 4 –5).

In this case it was the deceased who was very drunk. He assaulted the 1^st Accused and provoked him to retaliate. The 2^nd Accused in whose house this incident took place was naturally disturbed. He had witnessed the deceases drinking from around midday in Sigatoka town. His reprimand; “is this why you wanted to drink today?” is understandable. However, what is not explainable is why instead of pulling his younger brother away or chasing him out of his house he punched him. Neither of the two accused were drunk. From what their father stated to this Court it is apparent that the two accused could have told their brother to leave the village given his improper behaviour. In no circumstances can a Court of law condone the punching as lawful correction. Both were older than the deceased. Accused two in particular is being groomed to be a chief of his Vanua. Such behaviour is unbecoming of hi. One may reasonably ask why Accused 2 did not stop the deceased from partaking in a drinking spree from midday. Accused 2 was with him when he started. Accused 2 was driving and stopped on the way to buy another carton of beer. As part of lawful correction was it not his responsibility to stop his younger brother from getting so drunk as to be a nuisance in his (Accused 2’s) house and the village.

Despite all that has been said about both accuseds good character, their clean record and remorse this is not a case where s44 of the Penal Code is appropriate. None of the Court of Appeal authorities nor the High Court support a consideration of section 44. The Courts have to send a clear message to the public that fisting and any other form of violence can not be resolved family or village disputes.

The Court has considered the facts of this case and the relevant principles and authorities. The Court notes that both accused were initially charged for murder and were remanded for about 3 months. The State then amended the charge to one of manslaughter and both accused were bailed.

In all the circumstances of this case a sentence of imprisonment has to be imposed. The State has conceded that a suspended may be imposed in this case. Having considered all relevant facts the Courts sentences each accused to 18 months imprisonment suspended for 2 years.

The provisions of section 29(4) of the Penal Code are explained to the accused.

[Jayant Prakash]
Acting Puisne Judge

DATED at Lautoka this Tuesday the 29^th day of May 2001.