State v Turagabete [2005] FJHC 708; HAC 02.2005 (10 May 2005)

IN THE HIGH COURT OF FIJI
AT LABASA

Criminal Action HAC02.05

THE STATE

v

SEMI TURAGABETE
and
2 Others

Gates J

10^th May 2005

Ms. S. Shah for the State
Ms. S. Vaniqi for the 3 Accused

SENTENCE

Manslaughter s. 198, 201, Penal Code; brutal assault, kicking man on ground; 3 sober men against one drunk and incapable victim; vulnerable category victim; had offered minor provocation; 22 year old Accused in good employment; first offender; extended family to support; in custody 4 months awaiting trial; where attack brutal and provocation minimal, normally necessary to impose custodial sentence; senseless loss of life; failure to avoid or to prevent violent situation; custodial sentence for participatory role.

[1] Semi [Accused 1] and Nemani [Accused 3] you have been convicted after trial by this court of murder. This was a cowardly attack when you were both sober on a man who was to all intents and purposes drunk and incapable. He could offer you no resistance and once you had him on the on the ground both of you kicked him many times till he received his fatal injuries from which he later died.

[2] Nemani, you as the father of Semi and Jone [Accused 2], should have shown a better example to you sons. For this reason you bear the greatest responsibility of the three Accused.

[3] Your sentence for murder is fixed by Parliament. I have no discretion in the matter. I therefore pass a sentence of life imprisonment on you both.

[4] Jone [Accused 2] you have been convicted in the same trial of the lesser offence of manslaughter. It may be that you played a lesser part in the joint assault on Tumeli. It was nonetheless a ferocious and shocking attack. It was an attack in which the victim had no chance. Not only was it 3 against 1, it was 3 sober men against one drunken man. The victim was hopelessly drunk and confused. He could offer no resistance in reply. In that sense he was a victim in a vulnerable category.

[5] You initially retreated after the earlier provocation, the single punch from Tumeli to Semi that made no sense. It is a pity you could not have overlooked that punch because of the obvious state you could see that Tumeli was in. After all it was Christmas Eve. Your reaction was hardly a reflection of the Christmas message.

Mitigating factors

[6] You are a young man of 22 in a good job as a mechanic. Many members of your extended family need your contributions to help with their upkeep.

You are of previous good character and therefore to be given a discount in sentence for being a first offender.

[8] You have been in custody for 4 months awaiting trial. It is urged on your behalf that you are now remorseful and that you regret not having done more to prevent the assault on the deceased.

[9] I accept that there was some minor provocation here to your brother. As the elder brother though you could have helped to calm the situation, and thus to avoid this brutal attack on the victim.

[10] I note that you moved the victim off the road to the side, to the grass drain. No doubt you did this to avoid Tumeli being run over by a motor vehicle.

[11] There is no escaping the fact though as was said by Shameem J in State v Anand Dinesh Marti and Another Suva High Court Criminal Case No. HAC005.00S 11^th October 2001 that "where an attack is brutal and where the provocation has not been overwhelming, a custodial sentence is clearly called for."

[12] The tariff 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 the provocation minimal: Kim Nam Bae v The State, Crim. App. No. AAU0015.98S. In The State v Sevuloni Kunacola, Lautoka High Court Crim. Case HAC008.021 the violence was minimal and hence a suspended sentence was possible.

[13] The situation here is similar in sentencing terms to that in the Anand Dinesh Mani case, to which I have been referred by your counsel, where Shameem J said (at p.3):

"I cannot ignore the fact that a life was lost senselessly because the 1^st Defendant did not have the sense to keep away from a potentially violent situation."

[14] In the Mani case the defendants were also first offenders and received terms of 6 years and 4 years imprisonment.

[15] I am prepared to find yours was a lesser though participatory role. In the circumstances I sentence you to a term of 4 years imprisonment.

A.H.C.T. GATES
JUDGE