State v Drau [2012] FJHC 986; HAC030.2009 (26 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 030 of 2009

BETWEEN:

STATE
PROSECUTION

AND:

EPELI ULUIKAVORO DRAU
ACCUSED-PERSON

Counsel:
Mr T Qualinauci : For State
Mr. T. Terere : For Accused

Dates of Trial : 19-21 March 2012
Date of Summing-up : 23 March 2012
Date of Judgment : 23 March 2012
Date of Sentence : 26 March 2012

SENTENCE

1. The accused was found guilty of the offence of manslaughter by unanimous opinions of the assessors.
   
2. Evidence revealed that the accused was allowed into the house of the deceased-Prem Narayan, when the latter was drinking grog with the two sons, Salesh Narayan and Vikash Narayan, neighbour-Sanjiv Mani and friend-Rajendra Prasad in the night of 13 March 2009. The accused then got into acts of snatching cigarettes and asking for money from the deceased-Prem Narayan inside the shop, which was located adjacent to the house. In the process, the accused, who appeared to have been drunk, pushed deceased-Prem Narayan and threw two punches on the face and the chest of the deceased. The deceased, upon receipt of the punches, fell on the floor inside the shop. He was found to be dead instantaneously. The doctor, who conducted the post-mortem, was of the opinion that the cause of death was the serious injuries caused to the head and the resultant extensive internal bleeding inside the brain.
   
3. It is in light of this evidence that I need to consider the appropriate sentence on the accused after being found guilty for manslaughter.
   
4. Manslaughter, which is punishable under Section 198 read with Section 201 of the Penal Code, is a felony that attracts the maximum punishment of life imprisonment. In Kim Nam Bae v The State [Criminal Appeal FJCA 21; 26.02.1999], it was held that the sentence for the offence of manslaughter could, however, range from a suspended sentence to twelve year imprisonment depending on facts and circumstances of each case. This range of sentence, in my view, seems to be in order notwithstanding the maximum punishment being lowered to twenty five year imprisonment under the Crimes Decree No 44 of 2009, which is currently in force.
   
5. Violent and unprovoked attacks with the use of weapons of offence will necessarily entail higher custodial sentences (The State v Nayacalagilagi: FJHC 73). In Navomocea vs State [2007] FJHC38, the court of Appeal held that in all cases of manslaughter, where the death is caused by deliberate infliction of violence in the course of committing another offence, such as robbery with grave violence and any form of weapon being used, court should use a starting point between ten and fifteen years. The deceased in that case was hit in the head with a piece of wood in the course of the commission of an offence of robbery. A final sentence of eight years was imposed after making the starting point at ten years. The sentence was decreased by two years to accommodate the previous good behaviour and personal circumstances.
   
6. The accused in this case, who was intoxicated at the time, gained entry into the house of the deceased using his acquaintanceship as a friendly neighbour. The accused then engaged in the conduct of robbing the deceased-Prem Narayan, in the process of which he dealt severe blows on the deceased to fall on the floor resulting in fatal injuries. The conduct of the accused showed a breach of trust reposed on him as a friendly neighbour as he became violent; and, a degree of criminality as he threw powerful punches on defenceless deceased. The accused's conduct was also blameworthy and invasive as it really destroyed the serenity that the family of the deceased was set to enjoy inside their dwelling causing no harm to others. These factors indeed operated as circumstances to aggravate the offending.
   
7. In the circumstances, I would pick-up the starting point at ten year-imprisonment and add four years to reflect the aggravating circumstances in offending and arrive at fourteen years in the interim. I would reduce the sentence by two years to denote that the accused's behaviour for the last nine years had been free from any reported criminal activity. There was no meaningful remorse or any other extenuating circumstances to consider further reduction. I will, accordingly, impose a term of twelve years as the punishment for the offence of manslaughter. The accused shall serve a term of ten years with effect from 23 March 2012 before he becomes eligible for parole.
   
8. The accused may appeal to the Fiji Court of Appeal within thirty days.
   

Priyantha Nāwāna
Judge
High Court
Lautoka
26 March 2012