State v Bainivalu [2004] FJHC 340; HAC0025T.2003S (2 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Action HAC0025.2003S

THE STATE

V

INOKE BAINIVALU

Fiji High Court, Suva
30 June, 2 July 2004
Gates J

SENTENCE

Manslaughter sections 198, 201 Penal Code Cap 17; death arising from occurrence of robbery with violence; death from asphyxiation after Accused left victim face down; violence meted out at lower end of scale; injuries inflicted minor, not directly causative of death; heavily inebriated victim left in vulnerable situation by Accused’s unlawful act, section 206(d) and (e) Penal Code; early plea of guilty to amended information; degree of culpability; robbery with violence a significant circumstance of aggravation; victim incapacitated by inebriation is in a vulnerable category requiring court’s protection; substantial discount for plea; discount for time in custody awaiting trial.

Mr W. Kurisaqila for the State
Ms B. Malimali for the Accused

[1] The Accused originally faced an information for murder. Subsequently the prosecution filed an amended information containing a single count of manslaughter, and on 24 June 2004 the Accused pleaded guilty to it. To accommodate counsel’s other commitments, I heard the facts and mitigation on 30 June 2004 and put off sentence till today.

[2] On 14 June 2003 Rusiate Qalitasamu, a 43 year old construction worker working for Fletcher Construction, was out drinking with friends. He drank a good deal more than was good for him. When he left the Chequers Night Club that night and walked up Waimanu Road, Suva he did so with difficulty. He was seen to stagger, step backwards, and to sway from side to side.

[3] The Accused had been one of those who had been drinking with Rusiate that evening and for whom Rusiate had bought drinks. The Accused followed Rusiate up Waimanu Rd., and the Accused told one of the security guards on duty at the Kings Hotel that he was going to follow Rusiate in order to pick his pocket.

[4] Inexplicably and shamefully, the security guard did not try to stop the Accused, nor did he do anything to protect Rusiate. It is clear from the statement of that security officer that he heard from the Accused himself of his dishonest intentions. Such inaction does not reflect well on the security guard. His intervention might have prevented Rusiate’s death that night.

[5] The Accused purported to assist Rusiate up the hill, until they reached Brewster Street in Toorak. He admitted in interview with the police on 19 June 2003 that he intended to rob Rusiate. The Accused said he pushed the victim towards the drain. The victim dropped, came up again wanting to resist, whereupon the Accused kicked his face. He fell down again and appeared to be unconscious.

[6] The Accused looked for money in his pocket. There was none. Instead he pulled off Rusiate’s safety boots and took a small radio from his bag. This occurred at about 10 pm. The victim’s body was found in the morning at approximately 7 am in the same place, head down in the drain. He had died of asphyxiation from food particles which he had vomited up and which had then blocked the air passage.

[7] The Accused co-operated with the police and made a full confession.

Mitigating factors

[8] The Accused is a young man, who is 21 years old now. He was 20 at the time of the offence. He was brought up by his father alone, who died in 1999. He was educated only up to class 5 in primary school. He left his village in Vanua Levu in 2002 to come to Suva to look for work. He survived in the city as a shoe shine boy.

[9] Through his counsel he makes apology to the family of the deceased and to the court. He says he is sorry for what happened to this man. He never intended the consequences of his assault. I accept all of that. He has pleaded guilty to manslaughter as soon as the State was prepared to reduce the charge. He has made a truthful admission of events that night. He seeks the mercy of the court.

Aggravating factors

[10] This was a mean robbery that went wrong. The victim had with others bought the Accused drinks all evening, and is then repaid by the Accused by being pushed into a drain, kicked in the face, and left upside down. He was also robbed of his boots and a radio.

[11] It was an offence in which the Accused deceived the victim into thinking the Accused was out to help him. The plan took a little time to execute. The victim, albeit the author of his own dangerously incapacitating inebriation, was then a vulnerable member of the public on the street. The courts will seek to protect the weak even if they have been unwise or foolish . They are to be protected from violent predators.

[12] The Accused is not a first offender. He has been in trouble before. He has 4 convictions since July 2001, the last two being for larceny from the person [bound over for 12 months] and robbery with violence [6 months imprisonment]. When he committed the present offence he must have been out of prison only a short time. He is already leading off in the wrong direction.

[13] A life has been lost in the course of a robbery. Society might succeed by turning this young man away from crime now if the court imposed a community service order. However the matter is too serious for that. The Accused must take responsibility for what happened that night. He must pay the penalty for it and serve a term of imprisonment.

Conclusion

[14] None of the sentencing cases on manslaughter seem quite to fit these facts. In Kim Nam Bae v The State (unreported) Court of Appeal, Fiji Cr. App. No. AAU0015 of 1998S, 26 February 1999, the Court of Appeal said (p.4):

“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.”

[15] The violence meted out in the instant case was relatively minor. This diminishes the degree of culpability. The pathologist stated the injuries to the head from the kick or the fall on the road were not life threatening. The unlawful acts were the kicking to the ground and the abandonment of the victim after the assault, so heavily intoxicated, face down in the drain, by the Accused’s own placing. I am satisfied that these facts fall within the definition of causation of death as set out in section 206(d) and (e) of the Penal Code. Within the tariff, I start therefore with a sentence of 2 years imprisonment.

[16] To that must be added 3 years for the circumstances of aggravation, the accompanying robbery with violence. The Accused is not charged with robbery with violence. If he had have been, his sentence for that offence alone would have been much greater than the 3 years, perhaps in the range 6-8 years. But the robbery was an aggravating factor to the offence of manslaughter, and a significant one to be taken into account.

[17] I add a further year to the sentence for the fact that the victim was in a vulnerable category being so incapacitated that he could not make any resistance to the Accused’s assault.

[18] From that 6 years sentence, I make two deductions. For the early plea to the amended information I allow a discount of 2½ years. Second, he has been in custody almost 12 months. I therefore grant a further discount of 1½ years, the equivalent to the sentence he would have received for the time he has effectively served awaiting trial. The total discount amounts to 4 years in all, leaving him with a term of 2 years imprisonment to be imposed. Without these discounts the sentence would have been one of 6 years imprisonment. Ms Malimali had nonetheless put up a valiant submission with helpful case references.

[19] For the single count of manslaughter the Accused is sentenced to a term of 2 years imprisonment to be served from today.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Legal Aid Commission, Suva