State v Batirerega [2011] FJHC 257; HAC066.2009 (11 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 066 OF 2009

STATE

vs

EPELI BATIREREGA

Mr. T. Qalinauci for the State
Mr. I. Khan and Ms Q. Vokanavanua for the Accused

Date of Hearing: 21 April 2011
Date of Sentence: 11 May 2011

SENTENCE
[Manslaughter]

[1] On the 21st April, the accused entered a plea of guilty in this Court to a charge of manslaughter contrary to sections 198 and 201 of the Penal Code, Chapter 17, Laws of Fiji. He admitted a set of facts put to him and was convicted of the charge.

[2] The count reads as follows:

Statement of Offence

MANSLAUGHTER: Contrary to section 198 and 201 of the Penal Code, Cap. 17.

Particulars of Offence

EPI BATIREREGA on the 11th June, 2009 at Nawairabe village, Navosa in the Western Division, by an unlawful act caused the death of SAKENASA ULUIMALOLO.

FACTS

[3] On The 11th June 2009 at about 5.30am in Nawairable Village in Navosa, the accused was drinking rum and methylated spirit with the deceased. An argument erupted between the two over use of the accused's horse and the accused punched the deceased. The deceased ran off but returned to apologise. The accused continued to punch the deceased until he lay unconscious on the floor. The accused went outside and returned with a concrete block which he used to smash into the deceased's face. He used so much force that the concrete block broke into pieces.

[4] The deceased was taken to the Keiyasi Health Centre where a doctor noted severe facial and head injuries. He was thereafter sent to Lautoka and then CWM (Suva) Hospital. He was kept in intensive care; where he died after 12 days.

[5] The deceased was the younger brother of the accused.

THE LAW

[6] The maximum penalty for manslaughter is life imprisonment, and the tariff range of sentences can be between suspended sentences to twelve years imprisonment depending on the circumstances. As Fernando J. said in Kim Nam Bae:

"It is important to bear in mind that the range covers a very wide set of varying circumstance which attract different sentences. Each case will attract the appropriate sentence within the range depending on its own facts."

In Darshani – HAC 0007/2005, Gates J. (as he then was) said that serious cases should attract penalties of seven to ten years.

ANALYSIS

[7] This attack by the accused on his own brother was serious, unnecessary and highly dangerous. The victim was unconscious already and he then brought a concrete block down on him with such force as to shatter the concrete and to destroy the facial features of the victim. This was an act of breathtaking violence. With no provocation and no excuse, the accused is very fortunate not to have been charged with murder. One cannot imagine a more serious example of intent to cause serious harm.

[8] I take as my starting point a term of twelve years imprisonment. That starting point subsumes all aggravating features that might exist.

[9] Counsel for the Accused has in written submissions told the Court that the accused is a yaqona farmer aged 42 and 2 teenage children. He comes from a respectable, religious family. The accused cares for his 85 year old father who was previously residing with the victim. He does charitable work with the church and with village youth.

[10] The accused must receive discount for his plea of guilty. A term of four years is deducted bringing the sentence down to eight years. He will receive a further discount of one year for his good character and charitable deeds. His previous record of violence affords him no additional credit.

[11] Counsel for the Accused asks for a non-custodial sentence. Given the degree of violence in this case, it is a totally unrealistic application.

[12] The final sentence for this offence is a term of imprisonment for seven years. He will serve a minimum term of six years before being eligible for parole.

Paul K. Madigan
JUDGE

At Lautoka
11 May 2011