State v Ram [2012] FJHC 1302; HAC156.2010S (29 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 156 OF 2010S

STATE

vs

RITESH RAM

Counsels: Mr. L. Fotofili for State
Ms. M. Savou for Accused

Hearings: 21st and 23rd August, 2012
Sentence: 29th August, 2012

SENTENCE

1. On 21st August, 2012, in the presence of your counsel, you pleaded guilty to the following charge:
   

Statement of Offence

MANSLAUGHTER: Contrary to section 198 of the Penal Code (Cap 17).

Particulars of Offence

RITESH RAM, on the 10th day of August 2010 at Nasinu in the Central Division, unlawfully caused the death of SUNIL KUMAR.

2. Your counsel told the court that, no undue pressure was put on you to plead guilty, and that you did the same voluntarily and out of your own free will. The prosecutor then read the facts in court. Briefly, they were as follows. It was Christmas day in 2009, that is, the 25th December 2009. There was a youth carnival at Nakasi, Nasinu, and people were gathering to watch and participate in the same. You were at your family home in the day, and at 7.30 pm, you went to join the carnival. You were there for a while, and you walked a few rounds around the carnival area, you then decided to go home.
   

3. Unbeknown to you that the deceased, and two of his friends were also attending the carnival. They were walking around the area, and like you, they decided to go back to their homes. They were drinking beer prior to coming to the carnival. They went in a taxi, and drove past you. According to them, you punched the taxi. According to you, one of them challenged you to a fight. The commotion then started. You said, they tried to bump you with the taxi. They came out of the taxi. You and them started fighting each other. Fists flew at each other. One threw a stone at you, and according to prosecution, it hit you on the forehead. According to you, you took out a kitchen knife, and attacked the deceased and his two friends. You admitted stabbing the deceased in the stomach area. According to you, you acted in self-defence. Because of the complication arising from the stab wound, the deceased died on 10th August, 2010, approximately 8 months after the stabbing.

4. The court checked with your counsel to see that you have admitted the elements of manslaughter. Through your counsel, you admitted that, on 25th December 2009, you did an unlawful act by stabbing the deceased in the stomach area, resulting in serious injuries, which caused his death on 10th August 2010. As a result of your admissions, the court found you guilty as charged on 21st August 2012, and convicted you accordingly.

5. I have noted that you are a 24 years old first offender, married with a young son, who is in class 7. I also note that you are a carpenter, earning $300 per week, and that you are the sole bread winner. I note you are supporting your wife, son, younger brother and your sickly parents. I have taken into account your counsel's well prepared plea in mitigation, and her sentence submission. I have also read the prosecution's submission, and your antecedent report, including victim impact report. I have also noted your verbal plea in mitigation.
   
6. "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 range from a suspended prison 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 2007S, High Court, Suva; State v Amali Rasalusalu, Criminal Case No. HAC 003 of 2003, High Court, Suva. The actual sentence passed will depend on the mitigating and aggravating factors.
   
7. The mitigating factors were as follows:
   
   • (i) At the age of 24 years; this is your first offence;
     
   • (ii) You are married with a son, whose attending class 7;
     
   • (iii) You are the sole breadwinner in your family, supporting your wife, child, brother and sickly parents;
     
   • (iv) You pleaded guilty to the offence, although this was almost 2 years after the first call in the High Court – you nevertheless saved the court's time;
     
   • (v) There was an element of provocation in this case in that, according to you, one of the deceased's friends challenged you to a fight and they appeared to drive the taxi at you. You ended up fighting them, and they were also willing to fight you. One threw a stone at you. You thought you were defending yourself by using a kitchen knife against the deceased and his friends, resulting in this offence;
     
   • (vi) You have been remanded in this case, and a previous connected case, for almost 5 months;
     
   • (vii) You co-operated with police during the investigation.
     
8. The aggravating factors were as follows:
   
   • (i) By your offending, you have taken away Mr. Raj Kumar's only son, Sunil Kumar. Sunil Kumar was 29 years old, married with one son, aged 2 years old. Like you, Sunil Kumar was the sole bread winner for his family, and was supporting his wife, son and sickly parents. Your offending had denied this family its sole bread winner. You have also wrecked Sunil's family, and Mr. Raj Kumar has permitted her daughter-in-law (Sunil's wife) to remarry;
     
   • (ii) By pleading guilty to manslaughter, you have by implication rejected the defence of "self-defence" in your police caution interview and charge statements. In other words, you admitted that you were not acting in self defence. Self defence is only permissible if lethal force was necessary to preserve life. In this case, you were using a kitchen knife to defence yourself against three attachers. The fact that you used more force than was necessary aggravated the offending.
     
9. I start with a sentence of 3 years imprisonment. For the aggravating factors, I increase the same by 2 years to 5 years imprisonment. For the mitigating factors, I decrease the same by 3 years to 2 years imprisonment. I sentence you to 2 years imprisonment, with a non-parole period of 1 year.
   
10. In summary, in the manslaughter of Sunil Kumar, I sentence you to 2 years imprisonment, with a non-parole period of 12 months.
    

Salesi Temo
JUDGE

Solicitor for the State: Office of the Director of Public Prosecutions, Suva
Solicitor for Accused: Legal Aid Commission, Suva