State v Maiwaqa [2005] FJHC 733; HAC0002.1998 (5 May 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC002 OF 1998

THE STATE

V

LEPANI MAIWAQA

Gates J

Mr. D. Gounder for State
Ms. S. Vaniqi for the Accused

5 May 2005

SENTENCE

Manslaughter, sections 198 & 201 Penal Code; Court of Appeal had ordered retrial on charge of murder; State accepted plea to manslaughter in amended information; aggravating factors; minor provocation from victim leading to severe assault by Accused; loss of control of temper; both victim and accused drunk after lengthy drinking session; previous offending for violence; guilty plea to amended information; full and frank admissions; co-operated with Police; had served prison term equivalent to sentence of 7 years 4 months after first trial; appropriate term now one of 7 years; term already served; sentence to ensure no return to similar behaviour.

[1] The accused pleads guilty to the amended information now charging a single count of manslaughter. On 9th November 1998 he had been found guilty in the High Court of murder. He appealed his conviction to the Court of Appeal which ordered a re-trial. The State now accepts a plea of guilty to manslaughter.

[2] The case appears to have become lost in the woodwork before it reached the Court of Appeal. Hence the delay in the resolution of the appeal. Meanwhile the accused has spent over 6 years in custody either awaiting trial or in serving his sentence.

[3] No doubt in arriving at its decision, the State was mindful of the extent of drunkenness of the accused affecting the question of intent and of the fact that he had already suffered the ordeal of the previous trial.

[4] The accused and the victim Sebastiano Vereti began drinking beer at 10 o’clock in the morning of the 23rd April 1998. They started at a coffee plantation at Naqara on Taveuni. They went on to Niusawa and then to Waiyevo. Initially the group drinking was a large one, but late in the evening it dwindled to three and then to just the two of them. On the road near to the hospital the victim held in his hand the last bottle.

[5] The accused in a frank interview with the Police said Sebastiano refused to allow him to drink from this last bottle. He said the victim swore at him and then punched him. This angered the accused who struck back. He hit the victim on the mouth who instantly dropped to the ground. He then kicked him with his foot. The accused was wearing canvas shoes at the time. He kicked his head once, his ribs several times, and he stomped on his body. The accused then went home.

[6] The victim’s body was found the next morning at 7am. According to the pathologist death occurred because of collapse of the left lung. Six ribs were fractured as well as the jaw at the chin. This led to heavy bleeding internally, and from the jaw, which could have caused asphyxiation from the aspiration of blood.

Aggravating Factors

[7] Clearly this was a very severe assault administered after the accused had lost control of his temper. The accused had elected to drink for the whole day from 10 o’clock in the morning till late at night, and by then he would have been tired and less likely to maintain good humour.

[8] The dispute over the last beer bottle was a minor matter and ought not to have triggered such a ferocious assault. But in drink a person is less likely to see things rationally. Drunkenness is not however a mitigating factor.

[9] Before leaving the victim on the ground a few metres from the road, the accused took the beer bottle and rammed it up the anus of the victim. The accused said he did this since he was so angry with Sebastiano. The victim was already seriously injured and unable to fight back. Indeed after being knocked to the ground by the first punch, the victim appears to have been unable to offer any resistance to his assailant.

[10] Prior to his first conviction in this matter the accused had five prior convictions. They were throwing object, assault ocassioning actual bodily harm (2 cases), damaging property and larceny. He has been fined and imprisoned for these offences, the most serious receiving a 21 month term of imprisonment. These convictions may reflect drink and temper problems leading to violence.

Mitigating Factors

[11] The accused is now 32 years old. He does part time farming, though he does not have a regular job.

[12] He has pleaded guilty to the amended information at the first available instance. On the same day as Sebastiano was found dead, he made a full and frank admission of his actions. He co-operated fully with the police investigators.

[13] There was some minor provocation from the victim, who delivered the first punch, and in that sense the accused did not start the argument or the assault. He never intended to kill the deceased. He was shocked and anxious when he heard of his friend’s death. He is remorseful for what he did.

[14] I am told he has kept out of trouble whilst on bail. He has been assisting in church activities and youth rallies. Perhaps he has matured after his long spell in prison.

[15] Strangely, after this ferocious attack, the accused went and filled the beer bottle with water from a nearby tap. He then cleaned Sebastiano’s face. The victim was bleeding from the mouth and the accused used the victim’s trousers as bandage to stop the bleeding.

[16] He has spent 4 years 11 months in custody following the first trial. This is equivalent to the serving of a sentence of 7 years 4 months, when remission is taken into account.

Conclusion

[17] This was a crime committed on the spur of the moment, an explosion of vicious temper after some minimal provocation. This is a serious crime with tragic and unintended consequences. The cases reflect a wide range of possible sentences for manslaughter, perhaps from a suspended sentence to 12 years imprisonment.

[18] Having regard to the degree of violence used this crime is towards the upper end of the range, and I start therefore at 9 years imprisonment on the tariff. I give a discount of 2 years for the early plea of guilty. The sentence which ordinarily would have been meted out for this offence would have been one of 7 years imprisonment.

[19] In the unusual circumstances following the first trial, the accused has already served such a term. But in order to ensure the accused avoids involving himself in drunkenness and aggressive misbehaviour. I will impose a term of 2 years imprisonment suspended for 2 years. I will shortly explain what this means.

[20] Accordingly the sentence of the court is that you serve a term of two years imprisonment suspended for 2 years from today.

A.H.C.T. GATES
JUDGE

Solicitors for the Accused: Legal Aid Commission
Solicitors for the State: Office of Director of Public Prosecution, Labasa