State v Farik [2008] FJHC 21; HAC054S.07 (3 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 054 of 2007

STATE

v.

MOHAMMED FARIK
LOUISE VALERIE CRUICKSHANK

Hearing: 18th – 29th February 2008
Sentence: 3rd February 2008

Counsel: Mr. A. Ravindra-Singh & Ms S. Hamza for State
Ms J. Nair for 1st Accused
Mr. A. Naco for 2nd Accused

SENTENCE

Mohammed Farik, you have been found guilty and convicted of manslaughter. On the 7th of April 2007, at Mama’s Place in Caubati, you punched Sisaro Savou once, causing him to fall backwards on a concrete footpath. He received injuries to his head which caused intracranial haemorrage and death.

I accept all that has been said on your behalf by counsel. I also accept that Sisaro’s conduct that night was provocative and that all of you were drunk after hours of drinking. I also accept that you did not intend serious harm and were involved in a fight to show support for your friends Daniel Karan and Louise Cruickshank.

However a life has been lost because you did not have the sense to stay away from a volatile and violent situation. The tariff for manslaughter ranges from a suspended sentence to 12 years imprisonment. In some cases of manslaughter by a single punch where there was gross provocation, the courts have imposed suspended sentences. However, in cases comparable to yours, where death resulted in the course of a fight, where alcohol had been consumed by all parties and where the victim was killed by the infliction of serious head injuries, the courts have imposed custodial sentences of between 18 months to 4 years imprisonment. In State v. Kuliniasi [2004] HAC0008.2004 a drunken encounter between two groups developed into a brawl. The accused punched the deceased once on the chin. He fell backwards and hit his head on the cement pavement. The accused then kicked him. The accused was 28 and pleaded guilty. He was sentenced to 2½ years imprisonment by Winter J.

In State v. Francis Bulewa Kean HAC 037 of 2007 there was a drunken brawl followed by provocative conduct by the deceased. The accused punched the deceased three times in the face, then kicked him on the chest. On a guilty plea, the accused was sentenced to 18 months imprisonment.

In this case I do not consider Sisaro’s conduct to be grossly provocative. He was simply a drunk man, emotional after the loss of the Fiji team in the Adelaide 7’s. For this reason I start at 3 years imprisonment. In your favour is your good character, your sincere attempts to dissuade your friends from starting the fight and your remorse. There are no real aggravating circumstances. The victim impact statement documents the effect of the death of Sisaro on his mother. She continues to be traumatized and depressed by the loss of her son. She finds it hard to forgive those responsible for this incident, and has lost her main financial support.

I set your sentence at 2 years imprisonment. This is not a suitable case for suspension.

Louise Valerie Cruickshank you have been convicted of common assault for which the maximum sentence is one years imprisonment. I imposed a 6 month term in State v. Anand Dinesh Mani & Another (2001) HAC0005/00S, but generally non-custodial cases are preferred where a weapon was not used and where the offender is remorseful. In this case you punched Sisaro twice, you were drunk, and you genuinely felt remorseful when you realised he was seriously hurt. In these circumstances I consider a community work order to be appropriate. I order that you serve 40 hours of community work under the supervision of the priest at the Toorak Mosque. In default of community work you can be presented to this court for re-sentencing. Your sentence will be supervised by the Suva Magistrates’ Court to whom Maulana Faiyaz Mohammed must make a report after the completion of the 40 hours community services.

Nazhat Shameem
JUDGE

At Suva
3rd February 2008