State v Volavola [2002] FJHC 326; HAC020.2001S (2 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 020 OF 2001S

STATE

V

ADRIU PENI VOLAVOLA

Mr D. Prasad for State
Mr V. Tuberi for Accused

SENTENCE

Adriu Volavola you were originally convicted of murder in the High Court after a trial. This conviction has been set aside by the Court of Appeal and substituted with one of manslaughter.

The tariff for manslaughter in Fiji is between a suspended sentence to 12 years imprisonment. As the Court of Appeal said in Kim Nam Bae -v- State Cr. App. No. AAU005 of 1998S, after reviewing local and overseas cases:

“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.”

In Coleman (1991) 95 Cp. R. 59, Lord Lord Lane C.J. reviewed sentences for involuntary manslaughter, and said that in cases where the victim was felled by a single blow, causing him to fall and fracture his skull o floor or pavement thus caus causing death, the appropriate starting point was 12 months imprisonment. What must be considered as mitigating factors are absence of premeditation, the fact that there was a single blow of moderate force, expressions of remorse, and an immediate admission of guilt.

The evidence at the trial was that you were walking along the road at 4.30am in Vatuwaqa with the deceased’s wife. The deceased was following closely behind you. You turned back, and punched the deceased twice, once on his cheek, and one on his chin. Your blows caused the deceased to fall back onto the tarsealed road hitting the back of his head and his lower back. He began to shake, then became unconscious. You then called his name and massaged his head, apparently in an attempt to revive him. Later on, you were seen to punch the deceased again on the right side of his chest, as he sat outside the Penguin Ice Cream factory. The deceased died the next day, according to the pathologist, as a result of the injury to the back of the head. For the purpose of sentencing therefore, I accept that the blows which caused the deceased to fall backwards onto the road, were the blows which caused the deceased’s death.

I have taken into account, all that has been said on your behalf by counsel. I accept that there was no evidence of planning, that no weapon was used, and that you have expressed remorse. You were a special constable and a person of good character.

However, this was not a case of manslaughter from a single blow. Nor was there any evidence of provocation. The assessors clearly did not accept that the deceased assaulted you. You therefore assaulted a man, who did not provoke you in any way, twice, and hard enough to cause him to fall back and fracture his skull.

I consider the appropriate sentence in this case to start at 5 years imprisonment. This must be increased to 7 years imprisonment for the lack of provocation and the two blows on a defenceless man who did not attack you or provoke you in any way.

I then give you substantial reduction for good character and the 1 year 9 months you have spent in remand, as well as the evidence of lack of pre-meditation. I arrive at a sentence of 3 years imprisonment to commence from today.

Nazhat Shameem
JUDGE

At Suva
2nd December 2002