Toroca v The State [2005] FJHC 86; HAC0006.2004 (18 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC0006 OF 2004

BETWEEN:

STATE
Complainant

AND:

JOSATEKI TOROCA
Accused

Counsel: Mr. D. Toganivalu – for State
Mr. E. Veretawatini – for Accused

Date of Hearing & Sentencing: 18th April, 2005

SENTENCE

Josateki Toroca you have pleaded guilty and have been convicted of the offence of manslaughter contrary to Section 198 of the Penal Code.

The facts, which you have accepted are that on the 24th of December 2003 the deceased started his Christmas holiday celebrations early by first attending a function at the Fijian Teachers’ Association building. He drank a lot, became intoxicated, went out of control and was assaulted by another partygoer.

The deceased then left this Christmas celebration and travelled to Nausori where he continued drinking at various night clubs until about 11.00pm when he was dropped off by some kind folk at the Logani Village bus stop. At about 3.00am that morning the deceased was set upon and hassled by a group of youths who stole his shoes and money. He wandered off to a friend’s house in the village and continued drinking beer till daybreak. He then left that property and went to your home Mr. Toroca where he and you and some friends sat about drinking more beer on Christmas morning.

Mr. Toroca you had obligations to prepare the family Christmas lunch and so you left the drinking group. The deceased stayed behind eventually alone and continued to drink.

When you returned, Mr. Toroca, from your lunch duties you thought you were returning to an empty home. Instead, your brother fled the scene and you found the deceased lying naked on a bed with oil on his penis. This enraged you as you believed that the deceased was having some kind of sexual act with your brother. You immediately started to punch and kick the deceased. The noise of your assault led to a neighbour intervening. He stopped your assault.

It is clear that the deceased was unconscious after your assault on him and you and Mr. Raicebe carried him outside and left him under a tree to sober up. You tried to revive him but he would not wake. You made him comfortable and covered his naked body.

I find that at no time during the assault did you have any intention to kill the deceased. I further find that when you left him under the tree you were clearly of the impression that he was simply sleeping off the effects of his early Christmas celebrations.

Later that day the deceased was found still unconscious. Some folk took him to the Nausori Hospital. He was transferred immediately to the CWM Hospital and admitted to Intensive Care.

At Intensive Care the deceased’s presentation was described as deeply comatose with no response to pain or verbal commands, no movements in the limbs and no opening of the eyes. On the Glasgow coma scale (which assesses in a rough way the level of consciousness of a person) he was scored 3 out of 15 which is the lowest possible score in a person who is alive. There is no score below that.

A C.A.T. scan revealed massive brain swelling. As a result of this presentation a doctor from the hospital conducted a “burr hole” operation to relieve intra cranial pressure and brain swelling.

The deceased died on the 27th of December 2003, 2 days after admission.

The police docket originally sent to the Director of Public Prosecutions was for a charge of murder. There was conflicting medical evidence concerning the necessity of the burr hole procedure and its consequent effect. The evidence supported more than just your assault on the deceased may have caused or contributed to his head injury.

As a result and after a more comprehensive analysis of the evidence the Director of Public Prosecutions decided to amend the charge reducing it from murder to manslaughter.

This was to reflect not only the slight difference in medical opinion but also both the circumstances leading up to your assault and the clear provocation you felt upon unexpectedly finding the deceased naked and compromised in your bedroom in your house moments after your brother had run away. The inevitable inference to you being that your uncle had been performing some sexual act with your brother.

This matter took sometime to investigate. To your credit when confronted with the allegations you co-operated with the police, admitted your assaults on your uncle the deceased, expressed deep remorse for his death and by consent remained in custody pending trial for murder for eight months while the DPP and your counsel continued their investigations into the medical causes of death and the circumstances of this offending. You have one previous offence of assault some 13 years ago for which you received a suspended term of six months imprisonment.

You are 32 years of age, a plumber by profession, married with 2 young daughters at school, you are otherwise a good man and a responsible breadwinner for not only your own family but also extended family members.

Manslaughter

As is to be expected sentences for manslaughter vary widely depending on the facts and circumstances of each case. Penalties range from suspended sentences to 12 years imprisonment. In Rauve v The State (Criminal Appeal No. 13 of 1990) the Court of Appeal observed that punishment in Fiji for manslaughter of a serious kind normally ranges from 7 to 10 years imprisonment depending on the degree of gravity. Clearly in this serious category where sentences in the upper range are required the degree of violence is high and provocation minimal.

Sentences at the low end of this scale are reserved for those cases where the violence used is minimal and the provocation offered grave. (cf for example the State v Kacivaki, Suva High Court sentencing Criminal Action No. 38 of 1997, Devi v The State, Suva High Court Criminal Action No. 1 of 2001 and The State v Buli, Suva High Court Criminal Action No. 9 of 1999).

In his well known book “Principles of Sentencing” (second edition) D.A. Thomas dealing with “manslaughter by reason of provocation” points out at pages 76 and 77 the scale of sentences in England. In the case of Katatia Kabua v Reginam, Criminal Appeal No. 8 of 1976 (an appeal from the High Court of the Gilbert Islands) the Court of Appeal expressed itself in full agreement with the learned author’s principles expressed at page 76:

“The Court appears to consider a sentence of imprisonment necessary in all cases of manslaughter under provocation, and a sentence of less than three years would be exceptional. At the other extreme, sentences in excess of ten years’ imprisonment are rarely upheld. The factors which influence the Court in arriving at a figure between these limits are clearly the nature and extent of the provocation, the degree to which the offender was affected by it, and the readiness of the offender to resort to violence without provocation.”

As observed by my learned sister Justice Shameem picking a starting point for this offence can become fraught with value judgments as to what a “serious” manslaughter is.

The State concedes that this was not a case falling into the serious category, nonetheless, the facts were such that neither is it at the lowest end of a ‘single punch’ or ‘death by pavement’ manslaughter. No matter how grave the provocation, a starting point lower than 3 years imprisonment would be difficult to justify particularly when you set upon the deceased in such an enraged state. I therefore start at three years imprisonment.

There are however compelling mitigating circumstances. One is your justifiable anger at your uncle’s apparent abuse of your brother. Another is your co-operation with the police and extreme remorse at his death demonstrated by your willingness to accept responsibility for it despite the very real possibility that his death may have been caused or contributed to by other circumstances. You also deserve and will receive full credit for the amount of time you spent on remand. The fact that you did not challenge this period of remand by seeking bail is yet another expression of your genuine contrition.

I take into account your guilty plea, responsibly made at the earliest opportunity. I am prepared to accept despite your earlier violence related conviction that you are otherwise a man of good character who has learned from his mistakes. You have had a clean record since 1992.

For all these matters I reduce your sentence to 12 months imprisonment. Is this a case for suspension?

Section 29(3) of the Penal Code provides a legislative disapproval of suspending sentences in cases of violence. It is only in rare cases that the Court will suspend a prison term for violent offending.

A discussion of the processes which should be undertaken when a judicial officer is considering a suspended sentence is found in The State v Chand, FCA 0027 of 2000S. In that decision the learned justices by reference to the New Zealand Court of Appeal in The Queen and Petersen [1994] 2 NZLR 533 noted at page 6 from that case that some of the features applicable are:

• Previous good record notwithstanding the existence of prior offending (even if of substance) so long as there has been a long period free of criminal activity.
  
• The offender’s likely response to a sentence.
  
• Will the suspended sentence act as a strong deterrent to the offender, often indicated by appropriate acts of contrition and genuine remorse.
  
• Is there diminished culpability arising through lack of pre-meditation or the presence of provocation.
  
• Suspending a sentence is also indicated when there has been complete co-operation with the authorities and an early guilty plea.
  

These factors are not exhaustive and they often overlap and must always be balanced against the counter veiling circumstances such as a need to protect the public. However, in this case I don’t find your act of violence leading to the death demonstrating a particular need for public protection from you.

The New Zealand Court of Appeal went on to observe that at the end of the day what is required is an application of common sense judgment in which the sentencer must stand off and decide whether the imposition of a suspended sentence would respect the objectives of the legislation.

In my view in this instance it does.

You did not plan this killing. You simply ‘snapped’ and reacted to extremely provoking circumstances.

You voluntarily and immediately accepted responsibility for the death of your uncle in circumstances where the causation of that death remained under investigation. You stayed in custody satisfying thereby a need for immediate imprisonment. There is little need for deterrence in this case. Your actions were borne out of what for you were extremely provocating circumstances. You are otherwise a man of good character and I accept that you are genuinely sorry for the loss of your uncle’s life.

Your remorse and welfare of your immediate and extended family are also circumstances I consider.

You are sentenced to 12 months imprisonment suspended for 2 years. If you re-offend within the next 2 years you may be sentenced to serve the 12 months I have imposed today together with the term imposed for the new offence.

Gerard Winter
JUDGE

At Suva
18th April, 2005