State v Cama [2015] FJHC 771; HAC079.2013S (15 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 079 OF 2013S

STATE

V

NAIBUKA CAMA

Counsels : Mr. M. Vosawale and Ms. M. Khan for State
Mr. J. Savou for Accused
Hearings : 19 and 20 May, 2015
Summing Up : 21 May, 2015
Judgment : 21May, 2015
Sentence : 15 October, 2015

SENTENCE

1. In a judgment delivered on 21 May 2015, the court found you guilty and convicted you on the following information:
   

Statement of Offence

MANSLAUGHTER: Contrary to section 239 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NAIBUKA CAMA on the 9th day of February 2013, at Suva in the Central Division, unlawfully assaulted Netava Buke Draunidalo which caused the death of the said Netava Buke Draunidalo and at the time of the assault was reckless as to the risk that his conduct would cause serious harm.

2. The brief facts of the case were as follows. It was the 8th February 2013, a Friday night. The night club "Club Victoria", previously known as the "Islander's Night Club", was open for business. The consumption of liquor and dancing, was the order of the day in the nightclub. The accused, aged 23 years, his wife and friends were consuming liquor in the nightclub. So was the deceased, aged 21 years, at the time. Approaching midnight, the deceased allegedly grabbed the accused's cousin's (PW1) gold chain. PW1 complained to the accused. The matter was brought to the bouncer's attention. The accused, the deceased, the bouncers and PW1 went outside the nightclub to resolve the matter.
   
3. The bouncers questioned the deceased on the gold chain. The deceased denied stealing the gold chain, and swore and challenged the bouncers to a fight. The accused moved towards the deceased to inquire about the gold chain. The deceased continued to deny the theft and swore at the accused. The accused was slighted and punched the deceased on the chin. The deceased fell on the concrete pavement, causing massive head and brain injuries, leading to his death on 11 February 2013.
   
4. In State v Vilikesa Rinavuaka, Criminal Case No. HAC 239 of 2012S, High Court, Suva, I said the following:
   

"... "Manslaughter", as a criminal offence, is still considered by society and the law makers of this country as a serious offence, and thus had prescribed a maximum sentence of 25 years imprisonment (see section 240 of the Crimes Decree 2009). In the repealed Penal Code, Chapter 17, the maximum penalty for manslaughter was life imprisonment (see section 201 of the Penal Code)

Despite the above change in the legislation, the law and tariff on manslaughter is still the same, as when I said in State v Milika Videi, Criminal Case No. HAC 068 of 2009S, High Court, Suva, the following, "...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 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 often 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 2007; State v Amali Rasalusalu Criminal Case No. HAC 003 of 2003, High Court, Suva. The actual sentence passed will depend on the presence or otherwise of strong mitigating and/or aggravating factors..." ".

5. The aggravating factors in this case, were as follows:
   
   • (i) The use of violence to resolve a problem. The incident started as a result of an allegation of theft of a gold chain against the deceased. The matter was first referred to the bouncers, and then to the accused. The matter should have been referred to the police, as they are the institution that investigate crimes. The accused wanted to assist. The deceased swore at him. He couldn't take it and punched the deceased. The deceased fell on the concrete pavement, severly injured his head, wherefrom he died 2 days later. The violence by the accused on the deceased was totally unnecessary;
     
   • (ii) By offending against the deceased, you have effectively taken his life away, which is a violation of his right to life;
     
   • (iii) Through your offending, you have caused sadness and heart-ache to the deceased's family.
     
6. The mitigating factors were as follows:
   
   • (i) At the age of 25 years, this is your first offence;
     
   • (ii) You had been remanded in custody for approximately 13 months (ie. 1 year 1 month).
     
7. I start with a sentence of 5 years imprisonment. I add 2 years for the aggravating factors, making a total of 7 years imprisonment. I deduct 1 year 1 month for time already served, while remanded in custody, leaving a balance of 5 years 11 months. I deduct another 1 year 11 months for being a first offender, leaving a balance of 4 years imprisonment.
   
8. Mr. Naibuka Cama, for the manslaughter of Mr. Netava Buke Draunidalo on 9 February 2013, at Suva in the Central Division, I sentence you to 4 years imprisonment, with a non-parole period of 3 years, effective forthwith.
   

Salesi Temo
JUDGE

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