State v Moore [2012] FJHC 948; HAC173.2010S (16 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 114 OF 2010S

STATE

vs

ARTHUR JAMES KAMOE MOORE

Counsels : Mr. L. Fotofili for State
Ms. M. Savou for Accused
Hearings : 5th to 8th March, 2012
Summing Up : 12th March, 2012
Judgment : 13th March, 2012
Sentence : 16th March, 2012

SENTENCE

1. In a judgment delivered on 13th March 2012, the court found you not guilty of murdering Samuela Rokoyalewa Junior, on 31st May 2010, at Suva in the Central Division, but guilty of his manslaughter, on the same date. You were acquitted of the murder charge, and convicted of the manslaughter of the deceased.
   
2. The brief facts were as follows. The deceased and four of his friends were at a Suva Nightclub from about 9.30pm on 30th May 2010 (Sunday) to about 5am on 31st May 2010 (Monday). They were drinking liquor in the Nightclub, and later decided to buy food from the Suva Market Food Stalls, at about 5am on 31st May 2010. A fight broke out between the deceased and his four friends, against the accused. Heavy punches were traded between the two groups. The accused felt the group was too much for him, so he grabbed a knife from the food stall, to scare the deceased and his friends away. It did not work. They were still coming for him. A policeman came and took the knife away, and escorted the accused to the Market Police Post. The deceased came, and punched the accused in the head. The accused fled to the food stall, pursued by the deceased and his four friends. Behind the food stall, the accused stabbed the deceased in the chest with a kitchen knife. The deceased later died, as a result. Hence, the present manslaughter conviction.
   
3. "Manslaughter" is a serious offence. It carries a maximum sentence of 25 years 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.
   
4. The mitigating factors were as follows:
   
   • (i) You are 27 years old, and single;
     
   • (ii) You reached class 8 education;
     
   • (iii) You live around the Suva Market stalls, and sometimes with your mother at Vatuwaqa. You earn your livelihood by working for the women stall owners;
     
   • (iv) You regarded the women stall owners as your adopted mother, and you somehow see it as your duty to protect and defend them from abusive drunkards;
     
   • (v) On 31st May 2010, the deceased after buying food from a stall owner, decided to abuse her. You felt slighted. The deceased and his friends also stole food from one of the ladies, the night before. Bad blood began to flow between you and the deceased and his friends;
     
   • (vi) Although you started the fight on 31st May 2010, by standing up for the female food stall owners, you soon realized you were "outgunned" by the deceased and his four friends. The deceased and his four friends gave you a good beating, forcing you to grab a kitchen knife to scare them off. However, this did not succeed. They still came at you;
     
   • (vii) A police officer came and removed the knife from you, and took you to the Market Police Post. The deceased came from behind and punched the back of your head. You fled for your life, while the deceased and his four friends, pursued you. You ran to the back of a food stall. The deceased and his four friends cornered you, in an attempt to further punish you. You then stabbed the deceased, in an effort to save yourself;
     
   • (viii) You have been remanded in custody since 2nd June, 2010 ie. 1 year 9 months 13 days.
     
5. The aggravating factors were as follows:
   
   • (i) Samuela Rokoyalewa Junior's life has been unnecessarily lost. He was 22 years old, at the time, and his life was lost as a result of an unnecessary gang fight, and the inability of young people to resolve their problem in a non-violent manner.
     
   • (ii) You used a kitchen knife to stab the deceased in the chest, and thereby causing his death.
     
6. I start with a sentence of 5 years imprisonment. For the aggravating factors, I increase the sentence by 2 years to 7 years imprisonment. For the mitigating factors, I decrease the sentence by 4 years to 3 years imprisonment.
   
7. I sentence you to 3 years imprisonment. You are not eligible for parole until you have served 2 years imprisonment. I order so accordingly.
   

Salesi Temo
JUDGE

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