State v Koroitamana - Sentence [2015] FJHC 573; HAC298.2013S (6 August 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 298 OF 2013S

STATE

vs

KAMELI BOLA KOROITAMANA

Counsels : Mr. M. Delaney for State
Mr. V. Vosarogo for Accused
Hearings : 16 and 21 April, and 8 May, 2015
Sentence : 6 August, 2015

SENTENCE

1. On 16 April, 2015, in the presence of your counsel, you pleaded guilty to the following information:
   

Statement of Offence

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

Particulars of Offence

KAMELI BOLA KOROITAMANA on the 9th day of August, 2013 at Suva, in the Central Division, unlawfully killed COLLIN MOEPARA in Liquids Night Club, Suva.

2. On 21 April 2015, in the presence of your counsel, the prosecution read the summary of facts in court. In brief, the facts were as follows. On 9 August 2013, between 9.30pm and 11pm, the deceased Mr. Collin Moepara, age 27 years old, was drinking beer with other friends at the Liquids Night Club. The deceased was a student at the University of the South Pacific. He was married with two young children, aged 7 and 4 years old.
   
3. The accused was the head of security at the Night club, and was working as a "bouncer", at the time. At about 11pm, the deceased walked towards the Night club toilet. The accused followed him. Outside the toilet, the two had a verbal exchange. According to the accused, the deceased taunt him in a homosexual way. The accused punched the deceased on the left cheek jaw bone area. It appeared to be a right hander. The deceased fell on the concrete floor, bleeding from the mouth and was unconscious. The accused tried to revive him, but to no avail. He was rushed to CWM Hospital, but died soon after his arrival.
   
4. On 11 August 2013, a post mortem was carried out. Doctor Goundar, the pathologist, said the cause of the deceased's death was subdural hemorrhage due to an assault. The accused was charged with the murder of the deceased on 13 August 2013. The charge was later amended to manslaughter on 15 April 2015.
   
5. On 8 May 2015, the court checked with your counsel to see that you are admitting to all the elements of the offence of manslaughter. Through your counsel, you admitted that, at the material time, you punched the deceased (conduct); and that punch was a substantial cause of the deceased's brain injuries, which later resulted in his death (conduct causes death of deceased), and you were reckless as to a risk that the punch would cause serious injuries to the deceased. As a result of your above admissions, the court found you guilty as charged and convicted you accordingly.
   
6. In State v Viliame Ratoa, Criminal Case No. HAC 173 of 2010S, High Court, Suva, I said the following:
   

"..."Manslaughter" is a serious offence, and carries a maximum sentence of 25 years imprisonment. The tariff for manslaughter in Fiji is a suspended prison sentence to a sentence of 12 years imprisonment. Sentences in the upper range were reserved for cases where the degree of violence was high, and the provocation minimal. Sentences in the lower range were reserved for cases where the violence used was minimal, while the provocation was extreme. The tariff covers a very wide set of varying circumstances which will attract different sentences, depending on its own set of facts: Kim Nam Bae v The State, Criminal Appeal No. AAU 0015 of 1998S, Fiji Court of Appeal; The State v Francis Bulewa Kean, Criminal Case No. HAC 037 of 2007S, High Court, Suva; The State v Tomasi Kubunavanua, Criminal Case No. HAC 021 of 2008, High Court, Suva. Of course, the actual sentence will depend on the aggravating and mitigating factors..."

7. The aggravating factors in this case were as follows:
   
   • (i) Breach of Trust: A bouncer is employed by a Night club to maintain order and harmony in a Night club. When a patron enters a Night club on a night out, a legal relationship of trust immediately arises between the patron and the bouncer. A patron must enjoy himself or herself without harming others. A bouncer's fiduciary duty is to see that the patron enjoys himself or herself, and doesn't harm others. This is especially so when liquor are consumed in the club. When a patron misbehaves, it is the duty of the bouncer to see that non-violent means are used to resolve the problem. Force can only be used if it's a case of self-defence. In this case, it was wholly unnecessary for the accused to punch the deceased. If the deceased had misbehaved, non-violence means should have been used to contain the situation. By punching the deceased, the accused had breached the trust the patron had in him to protect him. Even a homosexual taunt is no excuse to resort to violent force to contain the problem. A custodial sentence will be given to warn bouncers to use non-violence means to contain the problem, unless when it is a case of self-defence.
     
   • (ii) Your offending had left the deceased's wife and two young children without a husband, a father and bread-winner. Their life had changed for the worst as a result of what you did. You still have your wife and children. By your action, the deceased's wife and children are, in reality, serving a life sentence, with the death of the deceased. You must therefore not complain when your liberty is taken away to pay for your crime.
     
8. The mitigating factors were as follows:
   
   • (i) At the age of 44 years, you had a clean record in the last 10 years;
     
   • (ii) Although you pleaded guilty approximately 1 year 7 months after the first call in the High Court, you nevertherless saved the court's time, and I take note of the fact that the prosecution amended the information from murder to manslaughter on 15 April 2015;
     
   • (iii) You had been remanded in custody from 13 August 2013 to 4 October 2013, approximately 2 months.
     
9. I start with a sentence of 6 years imprisonment. I increase the same by 3 years for the aggravating factors making a total of 9 years imprisonment. For time already served while remanded in custody, I deduct 2 months, leaving a balance of 8 years 10 months imprisonment. For having a clean record in the last 10 years, I deduct another 2 months, leaving a balance of 8 years 8 months imprisonment. For pleading guilty, I deduct another 1 year 8 months, leaving a balance of 7 years imprisonment.
   
10. Mr. Kameli Bola Koroitamana, for the manslaughter of Mr. Collin Moepara on 9 August 2013, at the Liquids Night Club in Suva, I sentence you to 7 years imprisonment, with a non-parole period of 6 years imprisonment, effective forthwith.
    
11. This sentence is a warning to bouncers in Night clubs to use non-violence means in maintaining peace and harmony in night clubs, unless it is a case of self-defence.
    

Salesi Temo

JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.

Solicitor for Accused : V. Vosarogo, Barrister & Solicitor, Suva.