State v Niubalavu - Sentence [2011] FJHC 765; HAC034.2011(LBS) (25 November 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 034 of 2011 (LBS)

STATE

v

ELIA NIUBALAVU

Mr L. Sovau for the State
Mr T. Lee (LAC) for the accused

Dates of Trial: 22, 23 & 24 November 2011
Date of Sentence: 25 November 2011

SENTENCE

[1] The accused was charged with murder, contrary to section 237 of the Crimes Decree 2009 in that he recklessly caused the death of one Hakim Begg in Wailevu on the 25th June 2011. After trial and in the majority opinion of two out of the three assessors, he was found not guilty of murder but guilty of the lesser offence of manslaughter. The Court concurred and he was convicted of manslaughter, which carries a maximum penalty of 25 years.

[2] The facts of the case were that on the 24th June, 2011 the accused came to Labasa for the first time with a group of friends for a weekend of shopping and leisure, although drinking appeared to be the ultimate goal. He drank at various places until he got thrown out of Pontoon nightclub for misbehaving. He found himself alone on the street and wanting to drink more decided to go to Bounty nightclub which he had heard about. A car pulled up beside him and offered him a lift. He got in the car and the driver suggested they buy beer, drink it and then he would be dropped at Bounty. The accused agreed. After buying beer the driver (the deceased Hakim Begg) drove them both to a cane field at Wailevu Tiri, where they drank beer. The deceased made sexual advances to the accused and before long the two got into a fight. The accused punched the deceased and in a scuffle they both fell out of the car onto the waste land. The deceased grabbed the accused's throat which made him angry and so he continually punched the deceased's face. He kicked his chest 3 to 4 times and kicked his face. He left him on the ground "snoring". Failing to start the car, he walked back to town to the rooms the group had rented for the weekend. He was subsequently arrested and made a full confession to the assault. The victim died and a post mortem revealed severe head injuries with damage to the subarachnoid membrane which was the cause of death caused by multiple injuries.

[3] In mitigation, Counsel for the accused submits that he is but 22 years old with a clear record at the time of this offence. He was employed as a carpenter in Nadi at the time, but was normally resident in Taveuni with his mother and brother. He is the sole breadwinner for his family. He is single and educated to Form 3 level.

[4] The accepted range of sentences for manslaughter is extremely wide. Sentences have been between suspended sentence to twelve years dependant on the degree of provocation involved (Kim Nam Bae AAU0015/98). In this case the provocation was minimal; the accused did not seem to be upset by the sexual advances, in fact he said he laughed, but he did get angry when his neck was grabbed which he says made him start punching. The Court has difficulty in accepting that evidence because the accused says that he started punching the deceased before his neck was grabbed, even when they were both in the car.

[5] In a recent case, Balekivuya and anor HAC 95/2010 Temo J. sentenced the accused on a very similar fact scenario to twelve years imprisonment. In that case there was again severe injuries caused to the head leading to bleeding in the brain.

[6] The degree of violence occasioned to the deceased was extremely forceful and despite the assessor's opinions it was unnecessary and horrifying. The pathologist found multiple injuries particularly to the head which he said could only have been made with very strong punches or kicks.

[7] The accused if he were angry could have walked away from the unpleasant situation. Admittedly he had no idea where he was but he did in fact later leave the scene and walk to town. There is no reason why he could not have done that earlier before he became an unrestrained savage. He is a young man of 22 years of age, seemingly healthy and fit and it is hard to believe that he was in immediate danger. He even admitted in his evidence in Court that his actions were excessive.

[8] The life of a well known Labasa businessman and family man has been lost. The fact that he had made inappropriate suggestions to the accused should not lead to him being assaulted in such a violent manner. The crime is abhorrent and there can be very little sympathy for the accused.

[9] I take as a starting point a term of twelve years imprisonment. This subsumes all aggravating features such as continued and unnecessary assault. For his hitherto clear record and in recognition of his time spent in remand (4 months), I deduct one year from that, meaning he will serve a term of imprisonment for this crime of eleven years.

[10] I order that he serve a minimum term before being eligible for parole of eight years and six months.

Paul K. Madigan
JUDGE

At Labasa
25 November, 2011