State v Raj [2013] FJHC 94; HAC041.2012 (7 March 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC: 041 of 2012

BETWEEN:

THE STATE

AND:

JAMES ASHWIN RAJ

Counsel: S. Vodokisolomone for the State
M. Lemaki for the Accused

Date of Hearing: 25 February 2013
Date of Sentence: 7 March 2013

SENTENCE

[1] James Ashwin Raj (the Accused) is before the Court for sentence, after pleading guilty to the following charges:

FIRST COUNT

Statement of Offence

MANSLAUGHTER: Contrary to section 239 of the Crimes Decree 44 of 2009.

Particulars of Offence

JAMES ASHWIN RAJ on the 28th of June 2012 at Labasa in the Northern Division unlawfully killed Ilisoni Logaivau.

SECOND COUNT

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Decree 44 of 2009.

Particulars of Offence

JAMES ASHWIN RAJ on the 28th of June 2012 at Labasa in the Northern Division unlawfully assaulted Asenaca Davai occasioning her actual bodily harm.

[2] On the early hours of 28 June 2012, the Accused had an altercation with the deceased at Fusion Night Club in Labasa town. The facts are unclear as to the cause of the altercation but it had something to do with the victim, Asenaca Davai dancing with the Accused. Asenaca Davai and the deceased were in a de-facto relationship.

[3] When the couple left the nightclub and was walking towards their home, the Accused approached them and punched the deceased on the back of his head. The deceased fell down on the pavement as result of the punch. When Asenaca Davai tried to pick the deceased up, the Accused kicked her on her right jaw and punched her on her left eye. After assaulting Asenaca Davai, the Accused turned to the deceased and further punched and kicked him while he lay motionless on the ground.

[4] Upon Asenaca Davai's scream for help, some bystanders came to her rescue. When the Accused saw the bystanders approaching him, he ran away from the scene. The bystanders managed to apprehend him and handed him over to the police.

[5] The deceased was transported to the hospital where he was pronounced dead after attempts to resuscitate him failed. Post mortem examination revealed the deceased died of "extemporal hemorrhage, extreme hematoma of scalp and neck areas and fracture on right temporal bone".

[6] Asenaca Davai sustained the following injuries to her face:

(1) Hematoma on left lower eyelid,

(2) Swelling on the left face,

(3) Tenderness on the right lower jaw.

[7] The Accused was interviewed under caution. He admitted punching and kicking the deceased because he swore at him.

[8] The Accused is 29 years old. He is separated from his wife and four children. To earn a living he worked as a taxi driver and a casual labourer. He has been in custody on remand since 28 June 2012.

[9] The maximum penalty for assault causing actual bodily harm is 5 years imprisonment. The range is between 6 – 9 months imprisonment (State v David Batiratu Revisional C. No. HAR001/2002 (13 February 2012).

[10] The maximum penalty for manslaughter is 25 years imprisonment. Previously, under the Penal Code, the maximum was life imprisonment. The offence is still considered serious because of loss of a human life. As observed by the Court of Appeal in Vilimoni Navamocea v The State Criminal Appeal No. AAU0002 of 2006 at paragraph [17]:

"There can be no more serious offence than one which needlessly takes away the life of an innocent person. In other crimes the court will have seen and heard the victim and been able to assess the horror of what he or she has experienced. In manslaughter cases that is, of necessity, impossible. Yet utter devastation to the victim's family will be inevitable. How can an offence which results in taking an innocent life be sentenced less severely than an offence of violence which does not?"

[11] Manslaughter covers a range of killings falling sort of murder. Sentences for manslaughter range from a suspended sentence to 12 years imprisonment (Kim Nam Bae v State Cr App No. AAU0015 of 1998S).

[12] Suspended sentences have been imposed in cases where the offenders have used minimum violence such as one punch causing the victim to die of head injury as a result of a fall on a hard surface (State v Mikaele Buliruarua Criminal Case No. HAC 001/2002). Sentences have been suspended also in cases of battered women syndrome or extreme provocation for a prolonged period of time by the deceased (State v Shakuntala Devi Criminal Case No. HAC 001/2001S, State v Leba [2004] FJHC 61; HAC 0021J. 2003S, State v Wati [2001] FJHC 316; [2001] FLR 336, State v Darshani [2006] FJHC 24; HAC 0007S 2005). The dominant factor in assessing the culpability of an offender in a manslaughter case is the degree of violence used to cause death. The duration of the violence and the use of weapons are also relevant in determining the offender's culpability. Kicking resulting in death of the victim is considered serious and will attract an immediate custodial sentence (Shashi Kapoor v The State Criminal Appeal No AAU 0028/2000S). Gang violence resulting in death will attract a substantial custodial sentence (State v Orisi Roko & Ors. Criminal Case No. HAC 0013/2000).

[13] When the Accused committed the offences, he was serving a suspended sentence for theft. Unfortunately, the State has not seen fit to charge the Accused with the offence of breaching the suspended sentence contrary to section 28 of the Sentencing and Penalties Decree. Unless the Accused is charged and convicted for breach of suspended sentence, the Court has no power to reactive the suspended sentence in case of a breach. But the Court can take into account that the new offence was committed during the operational period of a suspended sentence as an aggravating factor.

[14] The Accused has an appalling criminal history since 2001. Most of his previous convictions are for dishonesty. He has three convictions for robbery with violence. He has now committed further offences of violence. In all circumstances, I declare him to be a habitual offender pursuant to section 11 of the Sentencing and Penalties Decree. The principal purpose of sentence for the Accused is to protect the community from him. Furthermore, conduct that leads to a loss of a human life must be denounced and deterred. The Accused had been given many opportunities to rehabilitate but he has not made use of those opportunities.

[15] The provocation (swearing) offered by the deceased was minimal. By a reasonable person's standard, the response of the Accused was disproportionate to what the deceased did. After the deceased had fallen down, there was no need to further punch or kick him. The Accused turned around and assaulted the deceased's partner when she tried to lift him up from the ground. The deceased was drunk and the Accused knew that. Once the deceased had fallen down, the Accused further kicked and punched him. These factors aggravated the offending.

[16] The only compelling mitigating factor is the appellant's early guilty pleas and remorse. Because of the remorse expressed by the Accused, I am minded to give some weight to the principle of rehabilitation in sentencing him for these offences.

[17] For the offence of manslaughter, I pick 6 years as my starting point. I add 2 years for the aggravating factors and reduce 3 years for the guilty plea and remorse expressed by the Accused. I further reduce the sentence by 1 year to reflect the remand period.

[18] For the offence of assault causing actual bodily harm, I pick 9 months as my starting point and reduce that term by 3 months to reflect the guilty plea and remorse.

[19] On the charge of manslaughter, the Accused is sentenced to 4 years' imprisonment.

[20] On the charge of assault causing actual bodily harm, the Accused is sentenced to 6 months' imprisonment, to be served concurrently.

[21] I fix a non-parole period of 3 years.

[22] The Accused may appeal his sentence to the Court of Appeal within 30 days, with the leave of that Court.

Daniel Goundar
JUDGE

Solicitors:
Office of the Director of Public Prosecutions, Labasa for the State
Office of the Legal Aid Commission, Labasa for the Accused