State v Kumar - Sentence [2015] FJHC 773; HAC124.2013S (15 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 124 OF 2013S

STATE

V

SALESH KUMAR

Counsels : Mr. S. Vodokisolomone and Ms. S. Naibe for State
Mr. J. Singh for Accused

Hearings : 31 August, 1 to 3 September, 2015
Summing Up : 4 September, 2015
Judgment : 4 September, 2015
Sentence : 15 October, 2015

SENTENCE

1. On 4 September 2015, the court found you guilty and convicted you on the following information:
   

Statement of Offence

MANSLAUGHTER: Contrary to section 240 and 241(5) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SALESH KUMAR on the 8th day of March 2013 at Serua, in the Central Division, being the driver of bus registration number FX 636 failed to slow or stop the said bus which was a negligent breach of his duty being in control of such a bus and thereby caused the death of his passenger JONE VUCAGO.

2. The brief facts of the case were as follows. On 8 March 2013, you were driving a bus, registration number FX 636, from Suva to Sigatoka. You were 33 years old at the time, and the deceased was a 17 year old student. You left the Suva Bus Station at about 6.30pm, with some passengers bound for Sigatoka. The bus had a capacity for 60 passengers. You picked and dropped passengers along the way. At Pacific Harbour, you picked up the deceased for Nakorovou for a fare of $1.60. At Nakorovou, you realized that the deceased did not get off your bus.
   
3. The bus continued further. The deceased then decided to get off the bus. He asked you and your checker about four times to stop the bus. You ignored him. He came to the exit door. You did not stop the bus. You knew he was standing on the bus exit steps, and going down the same. You did not close the exit door. You continued driving the bus at full speed. Because you did not stop the bus, the deceased jumped off the same, and sustained serious head injuries, which later caused his death.
   
4. In State v Jessica Jasmine Joan Hill, Criminal Case No. HAC 247 of 2013S, 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 In the repealed Penal Code, Chapter 17, the maximum penalty for manslaughter was life imprisonment (see section 201 of the Penal Code)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. In this case, the aggravating factors were as follows:
   
   • (i) You were driving a 60 passenger bus from Suva to Sigatoka. You had passengers in your bus. As a driver, you owe a duty of care to any passenger who boards your bus, to exercise extreme care and precaution, in driving the bus, so that no passenger is injured unnecessarily. You picked up the deceased at Pacific Harbour for Nakorovou for a fare of $1.60. He did not get off at Nakorovou. He wanted to get off at a place further from Nakorovou. He asked you four times to stop the bus. You refused to stop the bus, and continued driving at a fast speed. He walked towards the exit steps. You did not close the exit door. You did not stop the bus, despite the deceased's repeated request. He jumps off the bus. He suffered serious head injuries and later died as a result. In my view, you were extremely negligent by refusing to stop the bus when requested. For your careless indifference, you will have to lose your liberty to pay for your crime.
     
   • (ii) Through your offending, you showed no regard whatsoever to the deceased's right not to be harmed while travelling in your bus.
     
   • (iii) Through your offending, you had no regard whatsoever to the deceased's right to life.
     
6. The mitigating factors were as follows:
   
   • (i) At the age of 36 years, it appears that this was your first offence;
     
   • (ii) It would appear that you had been remanded in custody for 2 months.
     
7. I start with a sentence of 4 years imprisonment. I add 3 years for the aggravating factors, making a total of 7 years imprisonment. I deduct 2 months for time already served, while remanded in custody, leaving a balance of 6 years 10 months. I deduct another 2 years for being a first offender, leaving a balance of 4 years 10 months. I sentence you to 4 years 10 months imprisonment.
   
8. Mr. Salesh Kumar, for causing the manslaughter of Mr. Jone Vucago on 8 March 2013, when you negligently drove bus registration number FX 636 at Serua in the Central Division, I sentence you to 4 years 10 months 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 : Samusamuvodre & Sharma, Barrister & Solicitor, Suva.