State v Dakunituraga [2009] FJHC 241; HAC137.2008 (29 October 2009)

IN THE HIGH COURT OF FIJI
HELD AT SUVA
CRIMINAL JURISDICTION

Criminal Case No HAC 137 of 2008.

BETWEEN

THE STATE
Applicant

AND

SAVENACA DAKUNITURAGA
Accused

Ms. N. Ratakele for the State
Ms. R. Senikuraciri for the Accused.

Date of hearing: 26/10/09; 27/10/09; and 28/10/09
Date of Judgment: 29 October,2009

SENTENCE

You have been convicted on one count of the manslaughter of Semi Seruvatu on the 20th July 2008 at Naduru, Nausori.

The facts led in your trial disclose that on that evening you, the deceased and two others were drinking to excess at the home of Amit. Almost inevitably things got out of hand and an argument erupted between the deceased and one Jone.

The two were separated but the deceased, who it appears was very intoxicated, was riled and wanted to continue his argument with Jone. To your credit you were attempting to diffuse the situation and placate the accused by restraining him and preventing him to get into the house where Jone was. In the course of this attempt to subdue the deceased, it is unclear whether he actually punched you or attempted to hit you, but in any event you landed one blow on the side of his head which knocked him down. He fell with his head hitting an iron railing and then on the concrete floor of Amit’s porch. He was knocked unconscious but later revived and you helped to comfort him and ease his distress. The next day he was taken to hospital where he was operated on but died 7 days later. The cause of death was stated to be "intracranial haemorrhage secondary to head injury due to trauma".

The assessors have obviously found that the death of the deceased was directly attributable to your knock out punch and they have also obviously ruled out your raised defence of self defence.

Your counsel has said all that can be said on your behalf. You are 33 years old, married with 4 young children all schooling. You are the sole breadwinner working as a glazier at a Glass Company. You have a clear record and this offence was totally out of character. You co-operated totally with the Police and you have made a heartfelt apology to the family of the deceased.

The deceased was related to you through marriage as well as being your good friend. He was obviously totally out of order on the night in question and had clearly tested you to your limit. You had clearly tried to stop the fighting but snapped by throwing just one punch. There was no other violence. It is noteworthy that after the deceased was knocked out through the unfortunate intervention of his head hitting the iron railing, you comforted him and without vengeance or animosity. You spent 2 months in prison before being freed on bail pending trial.

The Courts in Fiji have passed a very wide variety of sentences for manslaughter because the circumstances of the crime are infinite.

In the case of State v. Kuliniasi [2004] FJHC 124, Winter J. held that the relevant factors to be considered in determining whether to suspend a custodial sentence in manslaughter cases are:

(a) Extreme or long provocation

(b) Minimal violence

(c) Relationship between accused and victim

(d) Powerful reconciliation

(e) Gross negligence

(f) Little appreciation of the risk of serious harm

(g) No relevant previous convictions.

In your case, you fulfill nearly all of these pre-conditions. The events of that night were tragic. You were trying to placate your friend in the face of rather serious provocation. You threw but one punch with no other violence, you could not foresee that he would fall hitting his head on the porch railing and you have made a very remorseful and formal apology to the family for your actions. Your remorse is in addition borne out by the care you took for the deceased after his injuries.

A very similar factual situation can be seen in the case of State vs. Mikaele Buliruarua HAC 001/2002 where the accused slapped his workmate causing him to fall onto a tar-sealed surface. He was remorseful and a first offender. He was sentenced to 2 years imprisonment suspended for 2 years.

Although it is true, as the State submits, that human life is sacrosanct, it is also true that the Court must place value on the preservation of your life and that of your family. Sentencing you to a term of immediate imprisonment will serve no purpose. In your remorse, you must be given the opportunity to pick yourself up and continue your life with your young family.

You are sentenced to 18 months imprisonment suspended for 2 years.

P K Madigan
Judge

At Suva
29th October, 2009