State v Toka [2003] FJHC 183; HAC0008J.2003S (23 September 2003)

IN THE HIGH COURT FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0008 OF 2003

STATE

-v-

METUISELA TOKA

Mr. P. Bulamainaivalu for State
Ms M. Waqavonovono for Accused

Hearing: 18th September 2003
Sentence: 23rd September 2003

SENTENCE

Metuisela Toka, you have been found guilty and have been convicted of the manslaughter of your 11 year old child by gross negligence. On the 22nd of September 2002 you threw a spear at her in the early hours of the morning, believing her to be a pig. The assessors have found, and I have agreed that you were not merely careless. You have been found guilty of such a high degree of negligence that you deserve a criminal sanction.

The range of sentences in other jurisdiction for offences of manslaughter by gross negligence appear to be from 12 months imprisonment to 5 years. In Attorney-General’s References (Nos. 19, 20 and 21 of 2001), R –v- Byrne, Field and Cuthbert [2009] EWCA Crim 1096; (2002) 1 Cr. App. R(s) 33, the English Court of Appeal said that in such cases the court should consider the following:

1. The conduct causing death. If the negligence was particularly reprehensible a long custodial term should be imposed.
   
2. Public concern and the need for deterrence.
   
3. Whether the offender had intended any violence.
   
4. If violence had been intended, the risk involved of serious harm, and the extent to which it must have been apparent to those involved.
   

In Litchfield (1998) Crim. L.R. 507, the master of a vessel which foundered on rocks in Cornwall was found guilty of the manslaughter by gross negligence of three of his crew members. He was sentenced to three concurrent terms of 18 months imprisonment. There was no appeal against sentence. In Ajipote Koroi –v- State Crim. App. No. 4 of 1988, the Fiji Court of Appeal said that in Fiji, sentences for manslaughter ranged from 9 months to 6 years. In the case of State –v- Apolosi Waqailaivi HAC0008 of 1995, the High Court suspended the sentence of a boat owner who had steered his boat negligently, causing the death of an 8 year old child. No reasons were given for the suspension. In Osip –v- The Queen M142/2000 the defendant was given a 4 year term with an order that he serve a minimum of 12 months in prison, in a case where a hunter shot a person instead of a deer by gross negligence.

On the basis of these principles, and in particular on the basis that you intended no violence at all to any persons, I take as my starting point, 2 years imprisonment. In your favour, is your remorse, your grief at having killed your own daughter and your belief, which is accepted by the prosecution, that you were spearing a pig. I take into account your family circumstances and your family’s reliance on you. In particular I have read and am deeply moved by the letters written by members of your community and your daughter as to your good character and the extent to which you are needed by your family.

The aggravating features of the case are the high degree of negligence you showed in not checking on the nature of the shadow outside your home. Taking all these circumstances into account, and disregarding your previous record of Drunk and Disorderly (1983), Rape (1983), Larceny (1986) all of which are old convictions, I arrive at a sentence of 9 months imprisonment. I note that you have one previous conviction in 1996 for Assault Occasioning Actual Bodily Harm and that you are therefore not a first offender.

I have considered the question of suspension. However there are no compelling circumstances which might lead me to suspend your sentence. Although I do not doubt that you have suffered as a result of this death as has your family, as the State says, all human life is precious, and when it is taken by the grossly negligent act of a person whom your daughter loved and trusted, a custodial sentence is inevitable. The community expects the courts to pass sentences which reflect the grave breach of trust committed when offenders fail to treat their children with the care they deserve. In this case the use of a lethal weapon so close to the home where your young children lay, carried with it such a high degree of risk that I am not persuaded that a non-custodial sentence can adequately reflect society’s need to have a criminal sanction imposed.

I sentence you to 9 months imprisonment with immediate effect.

Nazhat Shameem
JUDGE

At Suva
23rd September 2003