State v Naivalu [2004] FJHC 465; HAC0008.2003L (17 September 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0008 OF 2003L

THE STATE

V

EPELI NASAU NAIVALU

Mr. K. Tunidau for the State
Mr. H.A. Shah for the Accused

Hearing: 14, 15 & 16 September 2004
Sentence: 17 September 2004

SENTENCE

Epeli Nasau Naivalu, you were charged with murder but the assessors were of the unanimous opinion that you were not guilty of murder but guilty of manslaughter and I concurred with their opinion and convicted you accordingly.

The deceased, your wife and the mother of your 3-year-old child, was living with you and with her sister and brother in law at Links Road, Kashmir at Lautoka in May 2003.

On the 1^st May 2003 about 6.30pm she went to work at the Bollywood nightclub where she was employed. Her sister went with her and although she was also employed at that nightclub, she was not working on this particular night. Your wife was to work from 7.00pm until 1.00am the next day. By arrangement, she met her sister and bouncers from the nightclub when she finished work and they were drinking beer at the seawall. Your wife and her sister returned home at about 7.00am.

You were employed as a cook at Blue Lagoon Cruises and had fed and dressed your daughter when your wife arrived home. You were dressed only in a towel and were about to have your bath to go to work. Your wife asked for and demanded money as she said she was hungry. There was food in the house, cooked by you the previous night – chicken and cassava. Your wife was drunk. She continued to demand money and you refused saying that you only had $5.00 and you needed that for your bus fare to get to work. Your wife followed you to the bathroom and after putting your daughter down, you punched her in the face. Whilst she attempted to protect herself, you punched her and she went outside, you followed and caught her and punched her, she ran away and fell over near a drain and you punched her and kicked her. When it was apparent that she was unconscious, you put water on her face, changed her clothes and took her to the Lautoka Hospital where she unable to be revived and was pronounced dead.

Your wife was an habitual drinker of alcohol and went out or stayed out drinking 2 or 3 times a week and you cared for your child, taking her to your parents when you had to go work. Your wife spent your wages and her wages on drink and at times pledged you bank card to the moneylenders for more money.

You and your wife married in 2001 and sometime later your wife left you taking the child. You followed and this resulted in you and your wife living with her sister and the sister’s husband and child.

You are 27 years of age being the oldest of 3 sisters and a brother. Your father is an Education Officer and your mother is a schoolteacher. You were brought up as a member of the Methodist Church from a young age. You have no prior convictions and you are person of previous good character.

Your counsel in the plea in mitigation asks that the court impose a suspended sentence and he submits that such a sentence is appropriate in the circumstances taking account the provocation as found by the assessors and the court, your prior record and the punishment you have and will suffer having killed the mother of your child.

The aggravating factors in the offence you committed, is the severity of the attack on your wife and the fact that you followed and even chased her outside and continued the assault. It wasn’t merely 1 or 2 blows.

The punishment for manslaughter in this country has been considered by the Court of Appeal in Kim Nam Bae v The State – AAU0015 of 1998S where the court said:

“The task of sentencing is not an exact science which is capable of mathematical calculations. This is particularly so with manslaughter where the circumstances and the offender’s culpability can vary greatly from case to case. An appropriate sentence in any case is fixed by having regard to a variety of competing considerations. In order to arrive at the appropriate penalty for any case, the courts must have regard to sentences imposed by the High Court and the Court of Appeal for offences of the type in question to determine the appropriate range of sentence.

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.”

In Sashi Kapoor Rayan v The State – Crim App. AAU0028 of 2000S the court noted that sentences for manslaughter of a serious kind range from 7 to 10 years. State Counsel submits that the circumstances of this matter cause it to fall in the middle range and I take that to be a range of 3 to 6 years.

I have been referred to several authorities by counsel but each matter must depend on its own particular facts but the resultant sentence should be within the range the authorities set.

The incidence of domestic violence offences in this country seems disproportionately high with a high degree of acceptance of violence towards women. It is incumbent on the court to clearly show that such behaviour is not acceptable in any community in the 21^st century.

I am of the opinion that an appropriate starting point in this instance is 5 years imprisonment.

Accepting as I do, that you were provoked, that you are of previous good character and that from your record you are not likely to re-offend. I give you a discount of 18 months.

You have served 3 months imprisonment whilst on remand which when adjusted for remission equates to about 5 months and I give you credit for this.

As I have said, sentencing is not a mathematical calculation and taking account of all the circumstances and the facts as referred to, I sentence you to 3 years imprisonment from today.

JOHN CONNORS
JUDGE

At Lautoka
17 September 2004