State v Rokaria [2004] FJHC 341; HAC0017.2003 (6 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC0017 OF 2003

BETWEEN:

THE STATE

AND:

SITIVENI ROKARIA

Counsel: Ms K. Bavou – for the State
Mr. A. Vakaloloma – for the Accused

Date of Sentence: 6th July, 2004

SENTENCE

Sitiveni Rokaria you pleaded guilty and in accordance with the Summary of Facts have been convicted of two counts of manslaughter contrary to Sections 198, 213 and 201 of the Penal Code of Fiji.

Particulars of the Offence

It is said that on the 20th of April, 2002 friends of your family came and asked your father for the loan of his boat. A group of people wanted to go to Nakurolovo, a small nearby island for a picnic. The friend also asked your father if you would drive the boat.

The boat was 20 feet long and 3 feet wide of wooden construction powered by a 25hp Yamaha engine. Your family had owned the boat for about a year and it was used for fishing.

When you went to Naivilaca Beach to launch the boat you found that there were 13 people wanting to come on board. There were 4 children, 5 ladies and 4 men. Three of the party, a mother, a father and son, were visiting Australian tourists and guests of the family that originally asked for the use of the boat. The Australians could not swim.

In your mind the boat was fit to carry about 10 people. You thought that carrying all of these folks was excessive and you tried to dissuade some people from coming on the picnic. Regrettably, you were overruled by your uncle and against your judgment the full party was allowed to come on board.

The journey started reasonably well but as you got into deep water it became clear that although the weather was fine the sea state was rougher than expected. There was at the time a strong wind warning in force. You were in control of the boat but your uncle was providing advice to you about how to best handle the conditions. He suggested that you speed up to avoid waves going inside the boat. You did this. Conditions did not improve. You were then told by the Australian guest to go slowly. Sadly by that time it was too late. A large wave filled the boat and capsized it. There was a certain amount of panic amongst those on board as the waves started to overlap the freeboard and water came inboard filling the boat causing it to sink.

You were by this time half way through your journey and well out to sea. Some passengers managed to stay with the boat others held on to floating petrol tanks. Sadly in the ensuing panic Tony Legudi of Australia aged 50 and his son Christopher Legudi of Australia aged 18 were drowned.

You have accepted by your plea a high degree of negligence on your part that caused the death of Tony and Christopher. Your actions deserve criminal sanction.

Manslaughter Sentences

The range of penalty imposed for offences of manslaughter by gross negligence are as varied as the circumstances that bring such tragedies to the Court for criminal sanction. In very general terms despite the maximum available penalty of life imprisonment it is rare for a harsh immediate lengthy and fully custodial term to be imposed.

Sentences range from as little as 12 months imprisonment for offending that could be generally categorized as inadvertent gross negligence to several years imprisonment for really mean, really stupid or really reckless gross negligence. It is not unusual in appropriate circumstances for the Court to consider suspension of imprisonment.

In 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 such cases the Court should consider the following factors:

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.
   

My sister Justice Shameem summarized tariffs in her judgment of the State v Toka Criminal Case No. HAC0008 of 2003 at page 2 of her judgment as follows:

“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 1998, the Fiji Court of Appeal said that in Fiji, sentences for manslaughter ranged from 9th 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.”

Her honour took a starting point of 2 years imprisonment and after consideration of aggravating and mitigating factors imposed a sentence of 9 months imprisonment which she felt unable in the circumstances to suspend. In Litchfield (supra) it was said that the very name manslaughter sounds worse than murder. Their Lordships were of the opinion that it serves to remind us all what we are looking at is very bad conduct indeed.

However, that bad conduct needs to be assessed on a scale which ranges between inadvertent and reckless gross negligence. The following analysis was offered:

There is a great difference between a case of inadvertent negligence, like Adomako, where an anaesthetist failed to notice that the tube supplying oxygen to a patient had been completely detached, and a case where the defendant is deliberately taking a known risk. Adomako was quite unaware of the risk his failure was causing to the life of the patient, but the prosecution’s case against Litchfield was that “with his vast experience of sailing, he must have appreciated the obvious and serious risk of death to his crew and he knew the risk he was running .... and chose to run the obvious and serious risk of death by doing so”.

I accept that you did not intend to kill the deceased but I am equally satisfied that you compromised your judgment by not standing up to your uncle and refusing to take some of the passengers on the trip. Further, even though you were an experienced boatman, you neglected to turn his vessel around when the sea state clearly made the journey hazardous. When the conditions became too rough you should have used your own skill to inform your judgment rather than relying on the advise given by your uncle to speed up and avoid water coming into the boat.

You were grossly negligent but at the lower end of the scale. For this reason I am prepared to accept a starting point for the offending of 2 years imprisonment.

Aggravating Features

I find the aggravating features of your offending to be

1. Society’s high regard for human life.
   
2. The deaths of two passengers – father and son.
   
3. Your high degree of negligence in consenting to your uncle’s request to take the full party on board.
   
4. Your high degree of negligence in failing to return to shore when the rough seas and bad weather set in.
   
5. Your high degree of negligence in failing to ensure that safety equipment was carried on board.
   
6. Your high degree of negligence in failing to ensure that there was any communication equipment on board.
   
7. Your high degree of negligence in failing to enquire as to whether your passengers could swim.
   

Against these aggravating features I would assess the following mitigation:

1. Your complete co-operation with the police and early guilty plea.
   
2. Your complete and genuine remorse for causing this incident and these deaths.
   
3. The fact that your negligence and conduct causing these deaths was not particularly reprehensible in that there was pressure upon you to act in the way that you did.
   
4. Your good motives in undertaking the journey at the request of your father for the benefit of other people to allow them to enjoy a picnic on a neighbouring island.
   
5. The fact that you may have misjudged the weather conditions as the day was otherwise fine but the sea state became worse the further you got into your passage.
   
6. This is not a case involving violence.
   
7. You are young and only 27 years old.
   
8. You are a first offender.
   
9. You had limited primary school education.
   
10. You live a simple subsistence village life.
    
11. You are married with three young children.
    
12. You are the sole breadwinner for your family undertaking subsistence farming.
    

In Litchfield the master of the vessel displayed gross negligence. He knew the fuel he was using was contaminated. He knew his passage stood the vessel and his passengers into danger. He was by profession an experienced master mariner. In this case you Mr. Rokaria are a villager with no experience in professional boatmanship. You volunteered to operate your father’s open punt to take folk to a nearby island for a picnic. You did not do so for hire or reward. Your motives were good.

For these reasons I see the aggravating features adding 2 years to the starting point making a total of 4 years imprisonment as an available sentence. However, as against that the mitigating features weigh heavily with me and I deduct 3 years from that total to make allowance for them. The available sentence on each count is one year’s imprisonment.

Suspension

In the State v Apolosi Wakalaivi Criminal Case 008 of 1995 Byrne J. sentenced a clearly reprehensible boat driver who drove his boat at speed amongst swimming children causing the death of one of them. The accused received a term of 2 years imprisonment suspended for three years. His honour’s reasons for suspending the sentence of imprisonment were not transparent. It appears from a reading of the judgment however that his honour accepted that the accused did not know the deceased was so close to his boat as to be in mortal danger. I am prepared to accept that was a circumstance sufficiently special to warrant a suspension of sentence. I further consider that Wakalaivi’s conduct was more reprehensible than yours.

I do adopt the learned justice’s observation at page 4 of his judgment where he said:

“I am also conscious of the fact that Fiji is an island nation where boating both for pleasure and reward is more common than other larger and more landlocked countries. Consequently, a warning must go out to all boat users not to drive their boats recklessly at the risk of endangering human life as has occurred here”.

Safety at sea involves very basic skills. The seaworthiness of the vessel and its method of propulsion, ensuring that safety equipment including life jackets and flares are carried. Ensuring there are means of communication. Adequate reporting of your passage plan. Ensuring the vessel is not overloaded. Checking not only the weather but also the sea state. And finally remembering that any journey at sea is not so important that it can’t be postponed or cancelled by turning around and going home.

I find in this sea tragedy there are special circumstances that would enable me to suspend the term of imprisonment. I consider those special circumstances to be:

1. Your motive in undertaking the journey was entirely good.
   
2. You are not a professional boatman.
   
3. You tried to discourage some of the passengers from taking the trip but were overruled. Your decisions on boatmanship were influenced by your uncle.
   
4. The weather was fine but the sea state as you got into the journey worsened.
   
5. This was really a case involving lack of skill.
   
6. Your heroic efforts at the scene to try and safely secure the lives of your passengers. You told all of the passengers including the father and son to stay with the boat. Having done what you could in those circumstances. You swam for two hours to seek assistance without thought for your own safety.
   

These are all special circumstances that can properly motivate the Court to suspend a term of imprisonment and I do so.

Conclusion

You are sentenced on each count to 12 months imprisonment to be served consecutively. However, I suspend that sentence for 2 years. I record that the effect of the suspension has been made plain to you in Court.

Gerard Winter
JUDGE

At Suva
Tuesday 6th July, 2004