State v Kumar [2004] FJHC 445; HAC0015.2003L (9 August 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0015 OF 2003L

THE STATE

V

DAVENDRA KUMAR
f/n Gyan Chand
MALELI TORA
SAMISONI VAVUDALI

Mr. M. Korovou for the State
Mr. I. Khan for the Accused

Date of Hearing: 29 July 2004
Date of Sentence: 9 August 2004

SENTENCE

Davendra Kumar, Samisoni Vavudali and Maleli Tora, you have each pleaded guilty and have been convicted of the manslaughter of Sant Raj and of damaging a gate, the property of Elenoa Vucago and also of entering into the compound of Elenoa Vucago without lawful excuse.

The facts tendered by the State and agreed to by each of you are that on the 6^th of February 2003 at about 9.00pm, the deceased and some of his friends were drinking beer on the verandah of Anil Kumar’s Store in Qeleloa, Nadi when they were told by you, Davendra Kumar to leave as they were making too much noise.

Anil Kumar, who is the brother of Davendra Kumar, refused to sell the group any more beer. An argument developed between you, Davendra Kumar and the deceased, after which, you Davendra Kumar drove away from the scene and returned later with Samisoni Vavudali and Maleli Tora. The three of you punched and hit the deceased. The deceased then left the scene with the assistance of one of his friends and went to Elenoa Vucago’s house, some 200 metres away.

The three of you then drank a carton of beer and then proceeded to Elenoa Vucago’s house. You went to the house looking for Derrick Pickering, the husband of Elenoa Vucago. Entering the property, you bumped the gate with your truck. You could not find Derrick Pickering and you then assaulted the deceased.

You, Davendra Kumar, admit assaulting the deceased with a stick and you Samisoni Vavudali and Maleli Tora admit punching the deceased. You then left the house of Elenoa Vucago.

On the 7^th of February 2003, the deceased went to the Nadi Hospital, sought treatment, was given medication and sent home and later that night, Sosiceni Koro, took the deceased to the Nadi Hospital where he was then transferred to Lautoka Hospital and subsequently died on the 8^th of February 2003. He had multiple small abrasions on his body and a left periorpital haematoma with associated conjunctival haemorrhage to the eye and a scalp haematoma over the left parietal bone. These external injuries resulted in fractured ribs and a retrosternal haemorrhage together with a haemorrhage into the left upper inter costal muscles. Peritonitis occurred as a result of a traumatic tear of the ileum.

None of you have any prior convictions that concern the court when sentencing you for this matter.

Davendra Kumar, you are 38 years of age, married with five sons aged between 16 years and 3 years. You are a sugarcane farmer having 73 acres of land and you undertake share farming. You have dependent upon you, your 67 year old father, your sister-in-law and her 2 children together with your immediate family referred to above. Your mother is deceased.

Samisoni Vavudali, you are 26 years of age, being the youngest in the family of seven. You are single and you were a member of the Royal Fiji Military Force between 1995 and 1997. You currently live in your village.

Maleli Tora, you are 20 years of age, single and have recently commenced work at the Sheraton Hotel as Assistant Housekeeper, prior to which, you stayed in the village as a farmer. You care for your mother, as you are the only breadwinner in the family. You are a member of your church youth group as is Samisoni Vavudali.

The village headman writes to the court confirming that you both have shown much improvement in your behaviour since the commission of the offence that brings you before the court.

I have been referred to a number of authorities relating to sentences imposed for manslaughter.

In State v Sailasa Naba & Ors – HAC0012 of 2000L Govind J. after considering the words of the Court of Appeal in Kim Nam Bae v State – Cr. Appeal AAU0015 of 1998S that the task of sentencing, particularly in manslaughter cases, is not an exact science which is capable of a mathematical calculation said:-

“The sentence in this case will therefore be on the basis of the facts of this matter bearing in mind the range within which sentences are imposed.”

It is agreed by counsel that the range is indeed very wide, with 9 months suspended for 2 years at the bottom up to 12 years at the top. The appropriate starting point is in my opinion 4 years imprisonment.

You have each pleaded guilty saving expense to the State and trauma to the friends and relatives of the deceased. You are therefore entitled to a discount of 1/3, which reduces your sentence to about 2 ½ years.

Each of you have involved yourselves in your religion and in the community since being released from jail and you each are in employment with obligations to family members.

In addition, you have each served approximately 3 ½ months, which equates to about a 5 months jail term taking account of remissions.

This then reduces your sentence to 1 ½ years.

The offence is however aggravated in that a stick was picked up in the course of the fracas and used to hit the deceased.

I therefore conclude that a term of imprisonment for 2 years is appropriate for the count of Manslaughter.

With respect to the second count of Damaging Property contrary to section 324 of the Penal Code, I take account that the property damaged had a value of $150.00 and sentence each of you to imprisonment for 6 months, such term to be concurrent with the term imposed on the first count.

The third count of Criminal Trespass contrary to section 197(2) of the Penal Code carries a maximum penalty of 1 year’s imprisonment. In the circumstances, I sentence you to 3 months imprisonment to be served concurrently with the sentences on Counts 1 and 2.

I suspend the operation of the terms of imprisonment for a period of 3 years from today pursuant to the provisions of section 29 of the Penal Code.

JOHN CONNORS
JUDGE

AT LAUTOKA
9 AUGUST 2004

Endorsement: The provisions of section 29 and 30 of the Penal Code were explained to the accused.