State v Dumukoro - Sentence [2016] FJHC 199; HAC27.2014 (23 March 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 27 of 2014

STATE

V

SULIASI DUMUKURO

Counsel : Ms. P. Madanavosa for the State
Mr. T. Bukarau for the Accused

Dates of Hearing : 03rd March – 14th March 2016
Date of Summing Up : 16th March 2016
Date of Judgment : 18th March 2016
Date of Sentence : 23rd March 2016

SENTENCE

1. The accused was charged for the offence of murder. After trial the assessors unanimously found the accused not guilty for murder but guilty for the offence of manslaughter. I concurred with the assessors' opinion and convicted the accused for manslaughter contrary to section 239 of the Crimes Decree on 18 March 2016.
   

Facts in brief

2. The accused is from Natumua and the deceased from Waisomo. On 25/12/2013 in the morning around 7.30am, accused was drinking with the deceased at the deceased's house at Waisomo. The accused swore at the deceased and ran towards Natumua, after an incident between the two at Waisomo. The deceased chased after the accused from Waisomo to Natumua, because the accused kept on swearing at the deceased while running. According to the accused, at Natumua, the deceased swore at him in front of his relatives. There was a fight between the two which came to an end after one of the accused's uncles intervened. Then the accused goes to his house at Natumua and the deceased sets off for his house at Waisomo.
   
3. However, after going home, the accused sees a kitchen knife which was on the sink; he takes the knife and then runs towards Waisomo. The accused meets the deceased near one Epeli's house at Waisomo and he attempts to strike the deceased with the knife. At one point, the deceased throws a bamboo stick at the accused and runs towards Epeli's house. The deceased then stops to face the accused. At that moment when the deceased turned, the accused was right next to the deceased and the accused stabs the deceased once. The entire blade of the knife pierced through the left side of deceased's chest causing an injury to the deceased's heart. The accused then ran away leaving the knife on the deceased's body. The deceased was pronounced dead on arrival at the Vunisea hospital.
   
4. There was also evidence that the deceased and his brother had been assaulting the accused since August 2012 over the accused having a relationship with deceased's sister, and accused stopped the relationship due to the assaults. Further, according to the cautioned interview, the accused admits that he intended to cause serious harm to the deceased using the knife.
   

The maximum penalty, the tariff and the starting point

5. The maximum penalty for the offence of manslaughter according to section 239 of the Crimes Decree is an imprisonment for 25 years. The offence of manslaughter involves the loss of a human life as a result of the conduct of the accused. Though the degree of culpability of manslaughter is lesser in comparison to murder, still the offence of manslaughter involves the death of another human being who had to leave this world unexpectedly and at a time orchestrated by the accused. Causing another person's death for whatever reason or under whatever circumstances is indeed a serious offence.
   
6. In the case of Kim Nam Bae v The State (unred) Fiji Cr. App. No. ANo. AAU0015.1998S, 26th February 1999, the Court of appeal said the following;
   

"The cases demonstrate that the penalty imposed for manslaughte#160;ranb>ranges from a suspended sentence where there may have been grave provocation to 12 years imprisonment where the degree of violence is high and proion is minimal. It is important to bear in mind that this rhis range covers a very wide set of varying circumstances which attract different sentences in different manslaughter casac. Ease will attract thct the appropriate sentence within the range depending on its own facts."

7. A court observed ived in then the above case, the range from suspended sentence to 12 years covers different sentences in different manslaughter cases. Thomas describes manslaughter as; "Manslaughter is a generic term for a group of offences with different definitions, linked only by the common requirement of a death.": D. A. Thomas, 'Principles of Sentencing', 2nd Edition (1979) p 74.
   
8. The case of Kim Nam Bae (supra) seems to be only making an observation on the range of sentences which were pronounced by the courts in manslaughter cases rather than establishing a tariff for the offence. Having 'suspended sentence' at the lower end of the range creates confusion if that range is to be regarded as a tariff. The decision to suspend a particular sentence is a separate consideration to make after reaching the decision on the appropriate term of sentence and if that sentence does not exceed 3 years (section 26(2)(a) of the sentencing and Penalties Decree 2009).
   
9. In the case of Anand Abey Raj V State [2014] FJSC 12 the Supreme Court indorsed the tariff set by the Court of Appeal for rape of children which is an imprisonment term between 10 years and 16 years. In the relevant case, the Court of Appeal also held that "Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years...". Therefore, when it comes to the lower end of a tariff, it is necessary to identify a specific duration for the reason inter alia that lower end of a tariff is also to be regarded as the minimum sentence for the relevant offence in the light of the aforementioned dictum in Anand Abey Raj (supra).
   
10. In my view, if the lower end of a particular tariff is used as the starting point for sentencing with regard to the relevant offence, the sentencing court can avoid any criticism of double counting the same factors for selecting the starting point and as aggravating factors.
    
11. However, as the next step, I turn to examine previous sentencing decisions of this court in relation to the offence of manslaughter to seek guidance on selecting the starting point. Upon considering 21 sentencing decisions, I note the following;
    
    1. 2 years imprisonment has been selected as the starting point in the following (1) case;
       

State v Miramira [2015] FJHC 823; HAC62.2015 (27 October 2015)

2. 3 years imprisonment has been selected as the starting point in the following (3) cases;
   

State v Ledua [2015] FJHC 643; HAC117.2012 (31 August 2015) [victim is a baby]

State v Ram [2012] FJHC 1302; HAC156.2010S (29 August 2012)

State v Rabuku [2012] FJHC 1215; HAC163.2011 (28 June 2012) [victim is a baby]

100. 5 years imprisonment has been selected as the starting point in the following (7) cases;
     

State v Noa [2015] FJHC 939; HAC089.2010L (1 December 2015)

State v Naliva [2015] FJHC 797; HAC21.2012 (23 October 2015)

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

State v Caucau [2015] FJHC 774; HAC226.2013S (15 October 2015)

State v Ranuve [2015] FJHC 657; HAC151.2015 (9 September 2015)

State v Gadeiniusiladi [2014] FJHC 912; HAC062.2014LAB (11 December 2014)

State v Chand [2014] FJHC 898; HAC028.2013LAB (9 December 2014)

4. 6 years imprisonment has been selected as the starting point in the following (5) cases;
   

State v Colati [2016] FJHC 156; HAC111.2014S (7 March 2016)

State v Salusalu [2015] FJHC 772; HAC086.2015S (15 October 2015)

State v Hill [2015] FJHC 583; HAC247.2013S (12 August 2015)

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

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

5. 7 years imprisonment has been selected as the starting point in the following (1) case;
   

State v Rarawa [2015] FJHC 755; HAC29.2014 (12 October 2015)

6. 8 years imprisonment has been selected as the starting point in the following (1) case;
   

State v Takaka [2015] FJHC 503; HAC41.2014 (10 July 2015)

7. 10 years imprisonment has been selected as the starting point in the following (3) cases;
   

State v Vakaruru [2014] FJHC 612; HAC12.2013 (12 August 2014)

State v Nalulu [2013] FJHC 358; HAC 155.2010 (23 July 2013)

State v Navamocea [2005] FJHC 697; HAC0020.2003L (17 November 2005)

12. It should be noted that I have not considered any case which dealt with manslaughter arising from a breach of duty. I have tried my best to consider all relevant decisions for the past two to three years with the exception of State v Navamocea (supra), a decision in 2005, because that decision recognises a particular tariff for the offence. From the above decisions I have perused, it is evident that this court has been inclined towards selecting a starting sentence of 5 years imprisonment or above for the offence of manslaughter. In majority of the cases, the court has taken 5 years as the starting point.
    
13. Considering the objective seriousness of the offence of manslaughter (under section 239 of the Crimes Decree) I consider that the starting point of 5 years imprisonment is appropriate. Based on objective seriousness, to place manslaughter committed with the intention or being reckless as to the risk of causing serious harm (section 239 of the Crimes Decree) at the starting point of 5 years is further justified considering that;
    
    1. Rape of a juvenile attracts a minimum sentence of 10 years. Anand Abey Raj (supra);
    2. Rape of an adult victim attracts a minimum sentence of 7 years. Kasim v State [1994] FJCA 25; AAU 0021j.93s (27 May 1994);
    100. Grievous harm attracts a minimum sentence of 2 years because according to State v Patel [2011] FJHC 669; HAA 30.2011 (27 October 2011), the tariff is 2 years to 6 years.
         
14. I note that in the case of State v Navamocea (supra), being guided by the case of Rauve v The State Cr. App. No.13 of 1990 this court suggested that the tariff for 'manslaughter of a serious kind' to be a term of imprisonment between 7 to 12 years. If I am to apply the said tariff, I have to first consider whether the circumstances in this case comes within the meaning of the term 'serious kind' as stated in Navamocea (supra). I do not wish to make any attempt in that regard as I hold the view that 'seriousness' can be properly taken into account when considering the aggravating factors. Further, since this court has been more favourable towards selecting 5 years as the starting point, I am inclined to form the view that the tariff for the offence of manslaughter under section 239 of the Crimes Decree should be 5 years to 12 years imprisonment.
    
15. Suliasi Dumukuro, I select 5 years imprisonment as the starting point of your sentence.
    

The nature and gravity of the offence

16. You stabbed the deceased on the right side of his chest with a kitchen knife with the intention of causing him serious harm. Before that you attempted to strike him with the knife. When you started to strike with the knife, the deceased who was also very drunk at the time apparently got scared and tried to hide behind a tree and then tried to run away from you. There were people around you telling you to drop the knife. But you did not want to give up. You ran after the deceased. It appears that the deceased finally decided to turn around and face you. At that moment he turned, you were right next to him and you stabbed him. You stabbed him on the right side of the chest. You stabbed him with such a force that the entire blade of the knife pierced through deceased's ribs, causing a fracture in the rib bones and a direct injury to the heart. You have clearly admitted that you had the intention to cause serious harm to the deceased with the knife. Though your final act of stabbing is indicative on the face of it, an intention to or recklessness as to cause the death of the deceased, as there was a doubt as to whether you had sufficient time to form the intention to kill or to consciously decide to go ahead after realising that your conduct will result in the death of the deceased, this court concurred with the opinion of the assessors and found you guilty for manslaughter instead of murder. However, this court still finds that your conduct reflects a high degree of violence.
    

Culpability and the responsibility of the accused

17. You say that you were provoked by the deceased when he swore at you using swear words concerning mother, father and cast in front of your relatives at Natumua. There was a fight between you and the deceased at Natumua. This fight came to an end when your uncle intervened. The evidence was that when your uncle intervened you laughed and ran away. You were then seen walking towards your house. Your mother said you did not enter the house at once and you inquired about your younger brother from her while you were standing beside the door. Your mother said when you saw the knife you took it and then you ran. All this evidence does not indicate that you lost your self-control when the deceased swore at you. The evidence does not support the defence of provocation in the legal sense. The evidence is more supportive of the inference that, on that moment when you saw the knife you decided to attack the deceased to take revenge as a result of the provocative conduct of the deceased on that day and his assaults according to you since August 2012. I also find that the way you assaulted the deceased is not proportionate to the provocative conduct of the deceased. This therefore is clearly not a case of minimum violence and maximum provocation. I note the evidence that you have been consuming alcohol from 12.00am on the day of the incident. Voluntary intoxication does not in any way serve as a mitigating factor in this case where you have been found guilty of manslaughter. Further, it should be noted that I do not wish to consider intoxication as an aggravating factor.
    

Impact of the offence

18. You stabbed the deceased in front his wife Sokoveti Tuinabuli. Because of your conduct, deceased's children loss their father and Sokoveti Tuinabuli lost her husband. You stabbed the deceased when other people were watching and pleading you to drop the knife. Your mother who gave evidence for the purpose of mitigation said that the deceased's wife married again the week before. Even if this information is true that will not totally make good the loss suffered by her and the children because of your conduct. In your submissions on mitigation you have anyway agreed that there is an impact on the deceased's family.
    

Remorse

19. You also gave evidence for the purpose of mitigation and said that you reconciled with the deceased's wife during the trial. Your counsel wants this court to consider that by way of that gesture you have taken steps to make restitution for the injury. I cannot agree that your seeking forgiveness will in anyway restore the loss she suffered. However, I will take that fact into account as an indication of your remorse. I have noted that in your charge statement you have said at the end, "... I wish to be forgiven." Your demeanor and deportment during the entire trial led me to form the view that you are indeed remorseful for your action.
    

Accused's character

20. The prosecution submits that you are a person of previous good character.
    

Aggravating and mitigating factors

21. I consider the following as aggravating factors;
    
    1. Use of a kitchen knife as a weapon;
    2. The circumstances under which you stabbed the deceased and the nature of force used which depicts a high level of violence;
    100. The deceased was relatively weaker due to intoxication and therefore vulnerable at the moment you stabbed him;
    4. The loss suffered by the deceased's wife and the children;
       
22. I consider the following as mitigating factors;
    
    1. You are 28 years old and unmarried;
    2. You are remorseful for your actions;
    100. You are a first offender;
    4. You have cooperated with the police.
       
23. Considering the aggravating factors I add 7 years and your sentence is now 12 years. Considering the mitigating factors I deduct 5 years and your final sentence is 7 years imprisonment.
    
24. Despite my finding that this case is not a 'minimum violence – grave provocation' case, I still decided to give the maximum weight for the fact that you are 28 years old and for the fact that you are a person of previous good character in bringing your sentence down by 5 years. In this regard I was guided by the following dictum of Madam Justice Shameem in the case of State v Devi [2001] FJHC 41; Hac0001d.2001s (4 July 2001);
    

"... There can never be any excuse for taking a human life, and the prosecution and the charge are a reflection of that. However, the need to punish, and to express society's abhorrence to the taking of a life, must be balanced with the need for a sentence which will reflect the particular facts of the case, and the offender's personal circumstances."

Conclusion

25. Suliasi Dumukuru, I hereby sentence you for an imprisonment term of 7 years. I order that you are not eligible to be released on parole until you serve 5 years of that sentence pursuant to the provisions of section 18 of the Sentencing and Penalties Decree 2009.
    
26. You have spent approximately 2 years 2 months and 27 days in custody since you were arrested in relation to this case on 25/12/2013. Pursuant to section 24 of the Sentencing and Penalties Decree 2009, I order that the period you were in custody shall be regarded as a period of imprisonment already served by you out of the term of imprisonment imposed in this case. I hold that the period to be considered as served should be 2 years and 3 months.
    
27. Accordingly the time remaining to be served by you is, 4 years and 9 months and the remaining non-parole period is 2 years and 9 months.
    
28. In the result, for the offence of manslaughter, you are sentenced to an imprisonment term of 7 years with a non-parole period of 5 years.
    
29. Pursuant to section 24 of the Sentencing and Penalties Decree 2009, the time remaining to be served is;
    

Head Sentence - 4 years and 9 months

Non-parole period - 2 years and 9 months

30. 30 days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Muskits Law, Suva.