State v Rabuku [2012] FJHC 1215; HAC163.2011 (28 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 163 OF 2011

BETWEEN:

STATE

AND:

SEREIMA LIKUVETAU RABUKU

Counsel: Mr. F. Lacanivalu for the State
Ms. V. Tamanisau for the Accused

Date of Sentence: 28th June 2012

SENTENCE

1. The Accused above named is charged under Section 239(11) of the Crimes Decree for the offence of Manslaughter.
   
2. The Accused pleaded guilty to the charge and admitted to the Summary of Facts submitted by the State Counsel.
   
3. Summary of Facts is re-reproduced below for easy reference:
   

"The accused is one Sereima Likuveitau Rabuku (Sereima), 32 years old of Waqadra in Nadi. The deceased was Jean Manuca (Jean), 1 year old, who resided with her parents Jimaima Pareti and Kaisa Manuca at Lot 63 Grey Road at Martintar in Nadi in the Western Division. Jimaima had hired Sereima to be her housekeeper and the child minder to her baby daughter Jean. Her responsibilities included cleaning the house, preparing meals as well as taking care of Jean and 3 other children.

On the 23rd May 2011 at Martintar in Nadi between 5pm and 6pm, Sereima left Jean in the sitting room for about 10 minutes after feeding her on the porch outside. She then decided to boil some water in the kitchen. When the water boiled, she then poured it inside a white plastic "biscuit" bucket and left it inside the bathroom. After placing the bucket of hot water in the bathroom, Sereima took Jean to undress her for bathing. After undressing her she then wrapped her in a towel and carried her into the bathroom. At the bathroom, she then opened the electric shower to pour some water into the bucket. While she was still filing the water inside the bucket, she could smell burning rice, which had been boiling on a kerosene stove in the kitchen. She quickly dropped Jean inside the bucket and ran to check on the burning rice. It was while checking the rice, when she hard Jean screaming from the bathroom. She then ran back to Jean and found her kneeling and crying in pain inside the bucket of hot water. Although she tried to lift her out, the water was so hot that she burnt herself. In desperation, she pushed the bucket to spill both Jean and the hot water on to the floor. She then wrapped her in a soft cloth and rushed her to a lady from Beqa Island living in the same neighbour hood to massage her burns so that she could be healed. However, due to the burns, she was taken to the Nadi Hospital by the Accused and the infant's father and later to the Lautoka Hospital where she eventually died.

According to the Pathologist Dr Ponnu S. Goundar, Jean died from 1st degree burns. The burns covered 40% of her body surface.

Sereima was arrested and interviewed under caution where she admitted dropping Jean into the bucket of hot water at Q.72 of her interview. She also admitted that the water was so hot that she burnt herself when she tried to lift her from the bucket. In addition, she admitted pushing the bucket to the floor in order to retrieve Jean form the hot water.

Sereima according to the facts had filled the bucket with a significant amount of hot water. In addition, Sereima according to the facts ought to have known that there was a significant risk that Jean may suffer from serious harm when she dropped her into a bucket of hot water. However, she was reckless as to that risk which resulted in Jean suffering from extensive burns which subsequently resulted in her death."

4. Sereima Likuveitau Rabuku, now you stand convicted under Section 239 of the Crimes Decree.
   
5. Section 239 prescribes 25 years imprisonment as maximum sentence.
   
6. Tariff for the offence of Manslaughter was discussed in many cases. It ranges from suspended sentence to 12 years imprisonment.
   
7. In Kim Nam Bae (1999) AAUU 1//98, the Court of Appeal decided as follows:
   

"The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence where there may have been grave provocation to twelve years imprisonment where the degree of violence is high and the provocation is minimal. It is important to bear in mind that his range covers a very wide set of varying circumstances which attract different sentences in different manslaughter cases. Each case will attract the appropriate sentence within the range depending on its own facts."

8. Considering the nature of the offence I commence your sentence at 3 years imprisonment.
   
9. Considering the aggravating factors
   
   1. The Deceased was one year old infant;
      
   2. The child died because of your gross negligence.
      

Considering the aggravating factors I increase your sentence by 1 year. Now your sentence is 4 years imprisonment.

10. Considering your mitigating circumstances:
    
    1. You are a first offender;
       
    2. No weapons used;
       
    100. You claim that it had happened accidently;
         
    4. You took steps to cure the burn wounds of the deceased child;
       
    5. You are remorseful
       
    6. You have pleaded guilty;
       
    7. You have co-operated with the Police;
       
    8. You regret what happened to the child.
       

Considering all, I reduce your sentence by 2 ½ years from your sentence. Now your sentence is 18 months imprisonment.

11. Your counsel pleads with the Court to consider a non custodial sentence.
    
12. 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 form offenders;
   

100. To establish 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.
   

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

In sentencing offenders;

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 offenders 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;
    
11. Any matter stated in this decree as being grounds for applying a particular sentencing option.
    

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."

15. You are sentenced to 18 months imprisonment. 3 months you will be serving and the balance 15 months of your sentence is suspended for a period of 3 years. If you commit any offence during this operational period, you will be serving this 15 months in addition to the sentence imposed in the subsequent offence.
    
16. 30 days to appeal to the Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
24th May 2012

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