State v Benedito [2008] FJHC 28; HAC007.2004 (29 February 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
CRIMINAL JURISDICTION
AT LABASA

Criminal Case No. : HAC 007 of 2004

BETWEEN

THE STATE

AND

PETERO RUBU BENEDITO

Mr. Tevita Muloilagi for the State
Mr. Malcolm Maitava for the Accused

Date of Sentence: 29 February 2008.

SENTENCE

1. PETERO RUBU BENEDITO you have been convicted of manslaughter, following a murder trial. This is your sentence.
   

Background

2. On the 29 October 2004 you woke up in Naloa, a settlement close to your village Lomaloma. You caught the bus to Labasa Town. You arrived at around 10am. Your partner Ema Meri joined you in Labasa sometime that morning. She had travelled into Labasa with a relative of yours Sanaila Dreloa. You both went to the Oriental Restaurant where you met Sanaila Dreloa and some other people. You started drinking beer. Later that morning you went to Centre Point Hotel with the deceased Ema Meri. You followed Sanaila there. At Centre point you drank more beer with others including the deceased. Two hours later you left the Center Point and went back to the Oriental Restaurant to drink some more beer, but that was short lived because of the afternoon closure time of the restaurant.
   
3. A bottle methylated spirit was purchased by Sanaila. You, Ema Meri, Sanaila and Qio decided to go to Seaqaqa. Your intention was, later that evening you would attend a fund raising dance organised by the St Elizabeth Vudibasoga Parish in Seaqaqa. When you arrived at Seaqaqa you went straight to Fiona’s House. You, Ema Meri [the decased], Sanaila Dreloa and Sakati Lodoviko sat in the front lawn of Fiona’s House and started drinking the methylated spirit mixed with water. You started drinking at around 5 pm.
   
4. In the course of the drinking an argument developed between you and your partner Ema Meri, the deceased. From the evidence given during your trial you punched the deceased at least 4 or 5 times in the head and neck area. There was evidence also of you kicking the deceased when she fell to the ground.
   
5. You admitted in you caution interview statements to the police that you punched Ema Meri and after she fell down you then kicked her, at least more than once.
   
6. From the evidence of Dr Prashant Samberkar, the Consultant Forensic Pathologist at CWM Hospital is Suva, the deceased Ema Meri died from intra-cranial Haemorrhage in case of assault. The haemorrhage was due to a fracture in the base of the skull that was consistent with blunt blows being applied there. He confirmed that the punches and kicks could have caused the fracture in the skull.
   
7. It was also clear from that evidence that no one else had inflicted any blunt blows on the deceased but you Petero Benedito. Even though you were charged with murder, two of the assessors found you not guilty of murder as charged, but guilty of manslaughter. One assessor found you guilty of murder as charged.
   
8. After adjourning overnight to consider the assessors verdicts, I delivered the judgement of the court earlier today. I accepted the majority verdict of the assessors: not guilty of murder but guilty of manslaughter. You were convicted accordingly and this is your sentence.
   

Mitigation

9. In mitigation your counsel has made written submissions on your behave. I am grateful to him for that. The following factors are pertinent mitigation issues in this case:
   
   • You are single and 35 years old;
   • Your old parents are dependent on you for support;
   • There was no premeditation in your unlawful act that caused the death of Ema Meri;
   • You farm yaqona and is able to earn enough to support your parents;
   • You cooperated with the Police in the investigation of the case against you;
   • You contributed considerably to the deceased funeral expenses.
     
10. The aggravating factors, as pointed out by the State are as follows:
    
    • The accused is not a first offender;
    • In the last 6 years he has had two convictions of Act with Intent to Cause Grievous harm committed after he had consumed to much alcohol;
      
11. I have also considered public interest factors in sentencing serious criminal offenders. In this case I consider the following relevant:
    
    • Sentence must express society’s abhorrence in the senseless loss of a life;
    • The sentence must ensure deterrence against offenders like the accused who use the cover of self induced intoxication to engage in vicious and violent assault on women;
      

Sentence Determination

12. The guideline for sentencing an accused person once he or she is found guilty of manslaughter was set out by the Court of Appeal in Kim Nam Bae v The State [1999] AAU 015 of 1998. The Court said that sentencing is not an exact science. In manslaughter the circumstances are usually varied and the offender’s culpability do vary greatly depending on the facts in each case. The then went on to say the following:
    

‘ In order to arrive at the appropriate penalty for any case, the courts must have regard to the sentences imposed by the High Court and the Court of Appeal for the offences of the type in question to determine the range of sentence. The cases demonstrate the penalty imposed for manslaughter ranges from suspended sentence where they may have grave provocation to 12 years imprisonment where the degree of violence in high and provocation minimal.’

13. I have reviewed the sentences in the following High Court and Court of Appeal cases:
    
    1. State v Apete Kuliniasi HAC 008 of 2004 – sentence of 2½ years imprisonment for an assault during a brawl which led to the deceased’s pavement death. The assault was punch and kicks when the deceased was down;
       
    2. State v Francis Kean, HAC 037 of 2007 – sentence 18 months imprisonment. The assault was punches and kicks to the head and chest of the deceased after he fell down;
       
    3. In Shashi Kapoor v The State, Crim App No: AAU 028 of 2000 - 3 years imprisonment term was upheld. Provocation minimal. The victim died as a result of injuries sustained from the punches and kicking of the victim by the accused;
       
    4. State v Ilaitia Raisua, Crim Case No: HAC 39 of 2006 – sentence of 18 months imprisonment. The deceased in this case was manhandled down a flight of steps resulting in his falling and hitting his head on the steps.
       
14. In the light of the above decisions and on the facts of this case, the proper starting point is 2 years imprisonment.
    
15. For the aggravating factors I have already set out above I add 1 year. Taking the total to 3 years imprisonment.
    
16. For the mitigating factors submitted on your behalf, 1½ years will be deducted, making the total sentence now 18 months imprisonment.
    
17. The court was urged by learned counsel for the accused to suspend any imprisonment term it was minded to pass. For the court to suspended the sentence it has determined, there must be exceptional circumstances arising from the case: DPP v Jotame Pita (1974) 20 FLR 5
    
18. Having carefully considered the submission of Counsel for the accused on this matter, I am unable to find that there exists exceptional circumstances to allow the court to suspend the sentence it has determined.
    
19. The accused is therefore sentenced of 18 month imprisonment with effect from today.
    

ORDER

20. I make the following orders:
    

i) The accused Petereo Rubu Benedito you are hereby sentenced to 18 months imprisonment with immediate effect.

Isikeli Mataitoga
JUDGE

At Labasa
29 February 2008