State v Vuniwawa [2009] FJHC 101; HAC170.2007S (7 April 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 170 OF 2007S

BETWEEN:

THE STATE

AND:

MAIKA VUNIWAWA

Counsel: Mr. W. Kurisaqila & Mr. S. Qica for the State
Mr. H. A. Shah & Mr. J. Boseiwaqa for the Accused

Date of Sentence: 7th April 2009

SENTENCE

[1] Maika Vuniwawa, you stand convicted of manslaughter of Nimilote Verebasaga on 5 January 2007. On this day you with some other army officers took the deceased from his home to an army camp at Laleen High School. In your caution interview you said the deceased was harassing the Indian families who were occupying his land as tenants. When you arrived at the military camp, you said the deceased tried to escape. You caught him and on instructions from your commanding officer you made the deceased crawl on the ground. While the deceased was crawling you assaulted him. The post mortem report revealed that the deceased sustained abrasions all over his body and serious injuries to his vital organs such as liver, lungs, pancreas and kidney. The deceased died of hemorrhagic shock due to injuries to vital organs as a result of trauma. He died shortly after the assault.

[2] You are 41 years old and married with six children. You joined the Fiji Military Forces in 1985. You were posted to Reserve. In 2007, you held the rank of Lance Corporal.

[3] After the political event of December 2006 you were deployed to the Nausori area to maintain peace and order in the community. You attended to calls by the members of public regarding disturbance in the community. While your reason for arresting the deceased may have been to maintain peace and order in the community, you had a moral and legal duty to ensure that the deceased was not harmed in any manner whatsoever while he was in your custody. You breached your moral and legal duty when you assaulted the deceased while he was in your custody. Nimilote Verebasaga should not have died. You have taken away a human life and Nimilote’s children will now grow without their father.

[4] Society cannot condone conducts that cause loss of a human life. The right to life is a fundamental right protected by our Constitution. You must understand that Nimilote Verebasaga was entitled to the right to life. You took away that right by punishing him without affording him any due process of law. You failed in your duty to uphold the law.

[5] Albeit the sentences for manslaughter range from suspended sentence to 12 years imprisonment, the circumstances of your offence warrant a custodial sentence.

[6] Your family circumstances and previous good character are the relevant mitigating factors. The aggravating factors are the multiple assaults on the deceased and the fact that you had a moral and legal duty to protect him while he was in your custody.

[7] In State v Nayacalagilagi & Ors. Criminal Case No. HAC 165 of 2007, I imposed a sentence of 4 years imprisonment for an offence of manslaughter committed in similar circumstances as the present case.

[8] Taking into account the mitigating and aggravating factors present in this case, and the need to maintain uniformity in sentences, a term of 4 years imprisonment is an appropriate sentence. However, in this case there is an additional factor present which was not present in Nayacalagilagi’s case. In this case, you offered to plead guilty to the offence of manslaughter before the commencement of the trial, but your plea was rejected by the prosecution. You exercised your trial rights in respect to the murder charge. Following trial you were convicted of manslaughter.

[9] I do not take against you, your exercise of your trial rights. Now that you have been convicted of manslaughter, in principle, you deserve some credit for your plea of guilty to manslaughter as sign of remorse. I therefore reduce your sentence by 1 year to reflect your offer of plea of guilty to the offence of manslaughter.

[10] You are sentenced to 3 years imprisonment.

Daniel Goundar
JUDGE

At Suva
7th April 2009

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Haroon Ali Shah, Barrister & Solicitor, Lautoka for the Accused