State v Lutuvakaleba [2007] FJHC 59; HAC051.05 (12 November 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal case No: HAC 051 of 2005

STATE

v.

TIMAIMA LUTUVAKALEBA

Hearing: 8th November 2007
Sentence: 12th November 2007

Counsel: Mr. D. Toganivalu for State
Ms J. Nair for Accused

SENTENCE

Timaima Lutuvakaleba, you have pleaded guilty to manslaughter. On the 23rd of July 2005 at Vatukalo Village, Levuka you unlawfully killed Iowana Rokotuitai. On the 22nd of July 2005, the deceased was given $10 by your grandfather to take a relative to the Levuka Hospital. Later they drank yaqona at another village. The next day, you questioned the deceased about the $10, and suggested that she had lied about taking the relative to hospital. You then argued and fought with each other. In the course of the fight you grabbed hold of the deceased’s head and banged it several times against the toilet wall. The deceased’s husband separated you, but later in the day you challenged the deceased to another fight. You pulled her outside a house and fought with her again. On the 24th of July the deceased complained of headaches. At 12 midday she died. When she was taken to the Levuka Hospital, she was dead on arrival. The cause of her death of asphyxiation due to aspiration of food contents associated of brain edema, which was caused by assault. You were charged with manslaughter on the 11th of November 2005. The deceased’s post-mortem report, tendered by the State shows that she received 21 injuries, including nail scratch abrasions, and bruising all over her body.

The tariff for manslaughter is the widest in Fiji, reflecting the broad range of different types of manslaughter. For the higher end of the tariff, are the cases of a high level of violence with minimal provocation. At the lower end of the tariff are cases of minimal violence with a high degree of provocation. The tariff is generally agreed to be a suspended sentence to 12 years imprisonment (State v. Francis Bulewa Kean HAC037 of 2007). However, different tariffs exist for manslaughter by gross negligence. (2 to 3 years) and involuntary manslaughter. In R. Byrne Field and Cuthbert [2009] EWCA Crim 1096; [2002] 1 Cr. App. R(s) 33, the English Court of Appeal said that in sentencing for manslaughter, the court should consider the conduct causing death, the public interest, the need for deterrence, whether there was an intent to do violence and any risk of serious harm.

In your case given the degree of violence inflicted and the minimal provocation, I start at 4 years imprisonment. I take into account all that has been said on your behalf, your previous good character, the mitigation given on oath by Mr. Uraia Racitoba of the Salvation Army, the light of your 5 children, the traditional reconciliation between your family and that of the deceased, the fact that there has been a 2 year delay in the disposal of this case and your very real remorse.

Aggravating factors are the fact that Iowana’s two children aged 5 and 3 are now motherless, that you instigated both fights with Iowana, the number of injuries on her and the minimal provocation offered. You are 35 years old and the mother of 5 children. You should have known better and you must take responsibility for the death of the deceased. I consider that you certainly intended to do violence to Iowana although I also accept that you did not foresee serious harm.

I arrive at a sentence of 3 years imprisonment but reduce that further by one year, to 2 years imprisonment to reflect your guilty plea. You are sentenced to a term of 2 years imprisonment. There are no exceptional circumstances in this case which might warrant a suspended sentence.

Nazhat Shameem
JUDGE

At Suva
12th November 2007