State v Vueti - Sentence [2012] FJHC 1099; HAC73.2009 (9 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 73 OF 2009

BETWEEN:

THE STATE

AND:

JAMIE VUETI
[1st Accused]

SOSICENI VATUNITU
[2nd Accused]

SAIRUSI DRAUNIMASI
[3rd Accused]

Counsels : Mr T. Qalinauci for State
Ms Savou from Legal Aid Commission appeared for the Accused Persons

Date of Sentence : 9th May 2012

SENTENCE

1. The Director of Public Prosecution had preferred the following charges against the 2nd and 3rd Accused persons.

SECOND COUNT

Statement of Offence

MANSLAUGHTER: Contrary to Section 198 and 201 of the Penal Code, Chapter 17

Particulars of Offence

SOSICENI VATUNITU and SAIRUSI DRAUNIMASI on the 22nd day of August 2009 in the Western Division by an unlawful act caused the death of Salesi Savou

2. Both Accused persons pleaded guilty to the charges and admitted to the Summary of Facts submitted by the State Counsel. The same is re- produced for easy reference.

"The first accused is one Sosiceni Vatunitu while the second accused is one Sairusi Draunimasi. The deceased was one Salesi Savou.

On the 22nd of August 2009 at about 4.30am, one Jamie Vueti was drinking alcohol with the first and second accused at the Steps Night club in Nadi Town when Jamie Vueti had an argument with the Deceased. The argument resulted in a fight where the Deceased was later assaulted. Afterwards, a Sivaniolo Lumelume assisted the Deceased into a taxi and then took him to Narewa Village in Nadi. However, when they reached the village, the Deceased decided to walk back alone to Nadi Town.

At about 6am the first and second accused with others boarded a minivan from the Green Land Night club opposite Steps Nightclub in Nadi Town, the minivan brought them as far as Namotomoto – Nadi Town Bridge where the driver asked for them to get off his vehicle after a fist fight broke out inside the van. The first and second accused got off the minivan and walked along the Bridge. Then they noticed the Deceased walking towards them from the Narewa junction. They recognized his as the man that fought with Jamie Vueti outside the club so they decided to punch him. Both the first and second accused assaulted the Deceased and when he fell on the ground, they then kicked him. They afterwards grabbed the Deceased and threw him into the Namotomoto – Nadi Town River.

Pastor Iliesa Tanivula of Namotomoto Village was awake at his house near the bridge when he heard voices. He went outside and witnessed the entire incident between the first and second accused and the Deceased. He ran towards them and recognized them as they were former classmates at Nadi District School. He saw the first and second accused threw the Deceased into the water from the bridge. He then asked them as who they had thrown into the river but they offered no response and instead walked away. He then reported the matter to the Police and investigations began by searching for the body of the Deceased in the Namotomoto – Nadi Town River. The partly decomposed body of the Deceased was not found until two (2) days after on the 24th day of August 2009 in the Namotomoto – Nadi Town River. A post mortem was conducted and the cause of death was found to be asphyxia due to drowning.

The first and second accused threw the victim into the water after punching and kicking him although they knew that the Deceased was drunk from alcohol and weak from their assaults. The Deceased drowned as a result of what the first and second accused did".

3. Section 201 of the Penal Code prescribes maximum sentence up to imprisonment for life.

4. Now I consider the tariff for the offence of Manslaughter. In the case of State v Milika Vadei [2010] FJHC 168; HAC 0068/2009s [May 2010] His Lordship. Justice Temo state the following when sentencing an accused person for the offence of Manslaughter:

"Manslaughter is a serious offence. It carries a maximum sentence of life imprisonment. However, case laws in Fiji seemed to show that penalties for manslaughter ranger from a suspended sentence to 12 years imprisonment. Sentences in the upper range were reserved for cases where the degree of violence was high and the provocation given was minimal. Sentences at the lower end of the scale were reserved for cases where the violence used was minimal and the provocation given was in the extreme: see Kim Nam Bae v The State, Fiji Court of Appeal, Criminal Appeal No. AAU0015 of 1998S; The State –v- Frances Bulewa Kean, Criminal CASE No HAC 037 of 2007; State v Amali Rasalusalu Criminal Case No HAC 003 of 2003, High Court, Suva. The actual sentence passed will depend on the presence or otherwise of strong mitigating and/or aggravating factors.'

5. In the case of State –v- Stevens [2010] FJHC 189; HAC 011 of 2008 (2 June 2010), His Lordship Justice Goundar convicted Mr Stevens for manslaughter and sentenced him to 2 years imprisonment term. Mr Stevens had used a knife on deceased and that the provocation by the deceased was not extreme.

6. In State –v- Kean [2007] FJHC 69; HAC 37 of 2007 per Winter J, when sentencing the accused for the offence of Manslaughter, considered the following sentencing range, prior to addressing the aggravating and mitigating factors;

[14] Manslaughter, the killing of a fellow human being by an unlawful act is recognized by the legislature as a very serious matter. It is also recognized that the offence can have varying degrees of culpability requiring different sentence. [See the State v Ananai Curubea, Criminal Case No HAC 10 of 1997s, 11 July 1997 Pain]

[15] Penalties range from a suspended sentence to 12 years imprisonment. What is clear from the case law is that sentence is the upper ranges are required where the degree of violence is high and any provocation minimal. Sentences at the lower end of the scale are reserved for those case where the violence used is minimal and provocation extreme."

[16] In State v Apete Kuliniasiasi HAC 008 of 2004, I sentenced the accused to 2 ½ years imprisonment for an assault during a brawl which led to the deceased's pavement death. The assault was a punch and several kicks when the deceased was down. Earlier cases of death caused by single punches (State-V- Mika Bula, HAC 009 of 1999, State v Ilaisa Raravula Lesumailepanoni, HAC 108 of 1999 and State v Akuila Manu, HAC 007 of 1999) have led to suspended sentences where the assault was minor, and the parties were related.

[17] This case deserves a starting point of 3 years imprisonment.

7. In Bae v State (1999) FJCA 21,. The Judges of Court of Appeal considered sentencing as follows:

"We have been referred to several cases of sentence on manslaughter in the High Court as well as in the Court of Appeal to enable us to determine the correct range of sentence for this type of offence. With respect, this is the correct approach that should be taken by the courts. The task of sentencing is not an exact science which is capable of mathematical calculation. This is particularly so with manslaughter where the circumstances and the offender's culpability can vary greatly from case to case. An appropriate sentence in any case is fixed by having regard to a variety of competing considerations."

8. Section 4(1) of the Sentencing and Penalties Decree states as follows:

The only purposes for which sentencing may be imposed by a court are –

1. To punish offenders to an extent and in a manner which is just in all the circumstances;
   
2. To protect the community from offenders;
   

100. To deter offenders or other persons from committing offences of the same or similar nature;
     

4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   
5. To signify that the court and the community denounce the commission of such offences;
   
6. Any combination of these purposes.
   

9. Section 4(2) of the said Decree states as follows:

In sentencing offenders a court must have regard to –

1. The maximum penalty prescribed for the offence;
   
2. Current sentencing practice and the terms of any applicable guideline judgment;
   

100. The nature and gravity of the particular offence;
     

4. The offender's culpability and degree of responsibility for the offence;
   
5. The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;
   
6. Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;
   
7. The conduct of the offender during the trial as an indication of remorse or the lack of remorse;
   
8. Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;
   
9. The offender's previous character;
   
10. The presence of any aggravating or mitigating factor concerning the offender or any other circumstances relevant to the commission of the offence; and
    
11. Any matter stated in this Decree as being grounds for applying a particular sentencing option.
    

10. Considering the nature of the offence and facts of the case I commence the sentence at 3 years imprisonment.

11. Considering the aggravating factors.

1. You have assaulted the Deceased prior to his death;
   
2. Both of you threw the Deceased from the bridge into the river;
   

100. You walked away from the place without helping the Deceased.
     

Considering all above factors, I increase your sentence by 3 years. Now your sentence is 6 years imprisonment.

12. Considering the mitigating circumstances

1. Both of your are 1st offenders;
   
2. The 2nd Accused Sosiceni Vatunitu, you submitted that you are waiting for a sentence at the Magistrates Court;
   

100. Both of you are regretful and remorseful;
     

4. You have co-operated with the Police;
   
5. Both of you have pleaded guilty to the charges;
   
6. Your period in remand (2 months)
   

Considering all your mitigating circumstances, I reduce your sentence by 3 years. Now your sentence is 3 years.

13. Your Counsel moves this Court to consider a suspended sentence for you.

14. Section 26(1) of the Sentencing and Penalties Decree states as follows:

"On sentencing an offender to a term of imprisonment a Court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances"

Considering all the mitigating circumstances I act under Section 26(1) and suspend your sentence for a period of 8 years.

15. Considering Section 31(1) of the Sentencing and Penalties Decree, I impose a fine of $600 on each of you. In default you will be sentenced to 60 days imprisonment.

16. If the fine is paid, the full amount will be paid to the next of kin of the deceased.

17. You are given 1 month to pay the fine

18. You are sentenced to 3 years and the same is suspended for 8 years. The nature and consequence are explained to you. In addition the above mentioned you should pay a fine of $600.

19. 30 days to appeal to the Court of Appeal.

S. Thurairaja
Judge

At Lautoka
9th May 2012

Solicitors : The Office of the Director Public Prosecution for State
Legal Aid Commission for Accused persons