State v Nayavu [2005] FJHC 193; HAC0012J.2005S (21 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0012 of 2005S

STATE

v.

LEONE NAYAVU

Hearing: 21st July 2005
Sentence: 21st July 2005

Counsel: Mr. D. Toganivalu for State
Ms B. Malimali for Accused

SENTENCE

Leone Nayavu, you have pleaded guilty to the manslaughter of Ratu Joseva Rokotabasi on the 23rd of January 2005. The facts you have agreed to are that you went out drinking with your friends when a brawl erupted. In the course of that brawl, the deceased who had been part of the drinking group, ran to the men to try and stop the fight. In the course of the ensuing fight, you punched the deceased once on the face. As a result the deceased fell heavily onto a concrete surface and became unconscious. One police officer said that there were between 50 to 60 people involved in the brawl. For the next few weeks, the deceased received medical treatment at various health centres, and finally died of head injury and broncho-pneumonia on the 10th of February 2005. You were initially charged with murder, but pleaded guilty when the DPP reduced your charge to one of manslaughter. You have one previous conviction for drunk and disorderly conduct in 1996.

The tariff for manslaughter in Fiji is a suspended sentence to 12 years imprisonment (Shashi Kapoor Ryan v. State Crim. App. AAU0028 of 2000S). Sentences at the lower end of the scale are reserved for those cases where the violence used was minimal and the provocation offered was grave. In State v. Apete Kuliniasiasi Crim. Action HAC0008 of 2004, Winter J referred to the comments of the English Court of Appeal in R v. Byrne Field and Cuthbert [2009] EWCA Crim 1096; [2002] 1 Cr. App. R(s) 33 in relation to sentencing in cases of manslaughter. In particular, the court said that the following factors were relevant:

1. The conduct causing death;
   
2. The public concern and the need for deterrence;
   
3. Whether there was an intent to do violence; and
   
4. Any risk, apparent to those involved, of serious harm being caused.
   

In Kuliniasiasi, Winter J sentenced, the accused to 2½ years for an assault during a brawl which led to the deceased’s death. The assault was a punch, and several kicks when the deceased was down. Other earlier cases of death caused by single punches (State v. Mika Bula HAC0009.1999, State v. Ilaisa Raravula Lesumailepanoni HAC0009.1999, State v. Akuila Manu HAC0007 of 1999) have led to suspended sentences where the assault was minor, and the parties were related. Starting points appear to range for such assaults from 15 months imprisonment to 2½ years.

In this case, there is no dispute that the only direct assault was that of a single punch. Nor is there dispute that the deceased did not attack or assault the accused. He went to the fight to stop it. I pick as my starting point, 2 years imprisonment.

Aggravating factors are that you were involved in a fight whilst under the influence of alcohol with a large number of men. You, and others must have foreseen that someone would be injured. Another aggravating factor is that the deceased needed medical treatment, before he finally died on the 10th of February. I increase the sentence to 3 years imprisonment.

In mitigation, counsel has submitted a number of character references which suggest that you are supported by your community. Your pastor describes you as a keen church-goer, and as a sincere and honest man who was misled by unruly friends. Your surety, Tevita Kuruvakadua, is your cousin. He says that you have shown signs of change whilst on bail, and have helped him and his family in domestic chores. You wish to marry and to apologise to the deceased’s family. Also before me, are letters of support from the Kasavu Youth Club, the Rugby Club and the Turaga-ni-Koro, Kasavu. All speak of your good character and your earnest desire to turn over a new leaf. You are now 30 years old, and are employed as a casual worker for a logging company near your village.

I accept all that has been said on your behalf. Indeed, your community support does you great credit. It shows remorse and contrition. Further, you have pleaded guilty as soon as the charge was reduced. For these mitigating factors, and for the time already spent in remand, I reduce your term to 18 months imprisonment.

Your counsel urges me to suspend this sentence. I am not minded to do so. Firstly, the deceased did nothing to provoke this fight. He was in the brawl to stop the fighting. Secondly, a suspended sentence would fail to reflect the pain the deceased undoubtedly suffered while he was receiving medical treatment prior to his death. Thirdly, you were involved, not in a fight involving two or three people, but a large group who were creating a great deal of fear and confusion in the Nausori town. A suspended sentence would not reflect the seriousness of these factors. I therefore decline to suspend your sentence, and sentence you to 18 months imprisonment.

Nazhat Shameem
JUDGE

At Suva
21st July 2005