State v Kuliniasiasi [2004] FJHC 124; HAC0008.2004 (26 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO.: HAC0008 OF 2004

BETWEEN:

STATE

-v-

APETE KULINIASIASI

Counsel: Mr. J. Rabuku - for State
Mr. A. Vakaloloma - for Accused

Date of Hearing: 26th July, 2004
Date of Sentence: 26th July, 2004

SENTENCE

Apete Kuliniasiasi you have pleaded guilty and in accordance with the summary of facts are now convicted of one count of manslaughter contrary to Sections 198, 213 and 201 of the Penal Code of Fiji.

Particulars of the Offence

On Friday the 18th of October, 2003 you shared two cartons of beer with some friends. You then went to your uncle’s home and drank more beer and rum. You then ended up at the Nausori Bus Station.

Along came the deceased and a group of his friends. They had also been drinking. All of you were drunk.

An argument developed between the two groups. This descended into a brawl. It was during that punch up that you and the deceased squared off. In this melee no doubt partly to defend yourself you punched the deceased on the chin. He fell backwards and hit his head on the cement pavement. However, even though you had the better of him you didn’t leave him alone. As he lay on the ground you booted him 2 to 3 times in his ribs and stepped on his head. You were wearing thick heavy safety boots at the time.

Having exhausted your drunken macho energies the two groups parted.

The deceased’s friends could not rouse him. He remained unconscious. They took him home. Sadly despite his deteriorating condition nothing was done to get him some relief or treatment. He was kept at home until Monday evening the 20th of October and only then taken to the Nausori Health Centre. He was immediately referred to the CWM Hospital. Some hours after admission he died. It was by then the 21st of October, 2003.

A subsequent post mortem examination led to this finding as to the cause of death “intra - cranial bleeding as a complication to a fall in a case of head injury (unnatural)”. It is clear from the post mortem report that the deceased died as a result of his head hitting the cement pavement and not as a result of the other blows you rained on him either during the fight or after his fall to the ground.

Manslaughter Sentences

In an English Attorney-General’s Reference 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 manslaughter cases the court should generally consider the following factors:

1. The conduct causing death.
   
2. The 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 my mind those general considerations set the scene for your sentencing.

The conduct causing death was reprehensible. This was drunken brawling. The only merit that can be gleaned from the incident on your behalf is that this reprehensible behaviour was equally displayed by both parties. In a sense it could just as easily have been you that fell to the ground and died as a result.

The public must be concerned at this sort of wanton violence inspired by an over indulgence in alcohol. You and others must learn by deterrence that this sought of behaviour is totally unacceptable.

It is clear that you intended violence. However, again it is equally clear that that violence was intended by all participants in the fight. I am prepared to accept that although you intended violence you had no time to really appreciate the risk of serious harm that might flow from your actions.

In very helpful submissions counsel for the Director of Public Prosecutions Mr. Goundar has laid out and categorised a number of authorities.

He argues and I accept that sentences for this type of offending cover such a wide and variable set of circumstances that individual sentences are of little direct comparative value. However, the sentences do establish some guiding principles for other sentences or sentence appeals.

Counsel argued and I accept that sentences for assault and violence related manslaughter fall into two main categories. Those where the sentences are suspended and those were because of the lack of special circumstances the only proper penalty is a full and immediate term of imprisonment.

Suspended Sentence Category

The usual features associated with suspended sentences for manslaughter are:

• extreme and/or long duration provocation
• minimum violence used in the assault
• sometimes a relationship between the accused and the victim
• powerful reconciliation
• gross negligence
• with little appreciation of the risk of serious harm
• no relevant previous convictions
  

These preliminary considerations often cause the Court to go further and enquire whether or not there are special circumstances that might justify the suspension of a term of imprisonment. Examples of the factual matrix for suspended sentences can be found in the following cases:

1. State v Samuela Neimila & Another, Criminal Case No. HAC0011.1998L.
   

In this case the accused persons were the deceased’s brothers. The assault on the deceased was a correctional measure taken by the brothers to stop him from becoming a nuisance after being intoxicated. The violence used was minimal. The death was considered an accident and unfortunate by the family. The accused persons had spent 3 months in remand. The State supported a suspended sentence. The sentence was 18 months imprisonment suspended for 2 years.

2. State v Mika Bula, Criminal Case No. HAC0009.1999.
   

The accused was the deceased’s brother. They argued, the accused punched the deceased who fell over a jetty and drowned. The accused was sentenced to 12 months imprisonment suspended for 2 years.

3. State v Shakuntala Devi, Criminal Case No. HAC0001.2001S.
   

The accused was the deceased’s sister. The deceased had provoked the accused over a period of time. The provocation was grave. The accused had spent 6 months in remand. The sentence was 2 years imprisonment suspended for 2 years.

4. State v Mikaele Buliruarua, Criminal Case No. HAC0001.2002.
   

The accused and the deceased were work mates. During an argument the accused slapped the deceased causing the deceased to fall backwards on to a tarsealed surface. The accused was remorseful for his actions. He was a first offender and pleaded guilty. The sentence was 2 years imprisonment suspended for 2 years.

Custodial Sentences

In contrast to the suspended sentence category the preliminary sentencing features that tend to indicate a fully custodial term are:

• The high degree of violence in the assault or a sustained degree of violence in a beating.
  
• Minimal provocation.
  
• Gang violence.
  
• Associated criminal offending such as robbery.
  
• An intention or premeditation for violence.
  
• A wanton disregard as to the risk of serious harm as a result of violence.
  
• Previous convictions.
  
• The absence of meaningful reconciliation.
  
• Special categories of violent offending particularly domestic violence or child related abuse.
  

Examples are:

1. Shashi Kapoor v The State, Criminal Appeal No. AAU0028.2000S
   

In this case the Fiji Court of Appeal upheld a sentence of 3 years imprisonment given by the High Court. The provocation was minimal. The victim died as a result of the injuries caused by the accused person punching and kicking the victim.

2. State v Orisi Roko & Ors., Criminal Case No. HAC0013.2000
   

In this case, through the provocation was grave, the degree of violence was serious. It was a case of gang violence. All six accused persons were sentenced to 7 years imprisonment.

3. Joeli Tikolevu & Another v The State, Criminal Appeal No. AAU0021.
   

This was a case of killing resulting from a violent robbery. A sentence of 6 years imprisonment was upheld by the Fiji Court of Appeal.

Decision

After careful consideration I am of the view that a starting point for this offending must be 3 years imprisonment.

The aggravating features are:

1. Involvement of alcohol.
   
2. Previous history for violence related offending.
   
3. The unnecessary extension of the violence once you put your victim down.
   
4. Public abhorrence of street brawling.
   
5. The need for a respect for life.
   

Mitigating Features

1. You are 28 years of age.
   
2. You have had little education.
   
3. You lead a simple subsistence village life to maintain yourself and your family.
   
4. You are married with two children.
   
5. The family depends on you for financial support.
   
6. The fact that you were not looking for a fight this evening but were provoked into an argument which can only be categorized as a drunken brawl.
   
7. Actions that can only be considered as in the nature of self defence in a free for all street fight. However, I record that you always had the ability to leave the scene but did not do so. So this could never have been an absolute defence.
   
8. Your remorse and shame which I accept are genuine.
   
9. Your early guilty plea.
   
10. Your co-operation with the police.
    
11. Your full complete and unmitigated acceptance of responsibility combined with the public apology you have offered in Court for the tragic death of Viliame Baleiwaca.
    

For the aggravating features I would add 2 years to the starting point. However, mitigating against that total of 5 years imprisonment I would allow a significant discount for your early co-operation and guilty plea and a further discount to recognize the particular features of this offending; a total of 2 ½ years seems appropriate.

Given that decision it is unnecessary for me to consider suspension of your sentence. However, I comment that in any event, even if I felt able to allow you the benefit of the qualifying sentence, I would not consider there to be sufficient special circumstances (CF R v Petersen [1994] 2 NZLR 55) that would allow me to impose anything other than a fully custodial immediate sentence of imprisonment.

Conclusion

Accordingly, Apete Kuliniasiasi you are sentenced to 2½ years imprisonment stand down in custody.

Gerard Winter
JUDGE

At Suva
26th July, 2004