State v Saukuru [2016] FJHC 308; HAC003.2016 (25 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 003 OF 2016

STATE

vs

SAKIUSA SAUKURU

Counsels : Ms D Kumar for the State
Mr A Chand for the Accused

Sentence Hearing : 22nd April 2016
Sentence : 25th April 2016

SENTENCE

[1] MR. SAKIUSA SAUKURU, after being convicted to the offence of Manslaughter, contrary to Section 239 of the Crimes Decree No. 44 of 2009, you now appear before this Court for imposition of your sentence.

[2] You pleaded guilty to the above charge and admitted the summery of facts. This Court, having satisfied itself that your guilty plea was unequivocal convicted you to the offence of Manslaughter.

[3] The facts and circumstances relating the commission of the said offence are as follows:

(i) The deceased is your eldest brother and was in late fifties at the time of his death. On the night of 16th December 2015, he invited you to join him to drink beer in the kitchen of the upper floor of the family house, where you both lived. Your sister occupied the ground floor and lived with her husband. You had a de facto relationship but lived separately from your partner and child. The deceased was a divorcee.

(ii) When the deceased invited you to drink beer, you twice declined the offer but later joined him at about 6.00 p.m. There was no source of light available in the kitchen and had to depend on the lights coming from neighbouring houses. Two of you then consumed beer and then the deceased had brought some more bottles totalling to 10 bottles of beer.

(iii) You two were talking about the ownership of the parental house and then the deceased changed the topic and talked about your partner and child. You wanted to avoid this topic but the deceased kept on bringing it up for discussion. Your talk turned to an argument and it had disturbed your sister, who warned two of you to keep it low, a few times by coming up to the upper floor.

(iv) The argument between two of you continued with fluctuating intensity. At a certain point, the deceased had punched you. It did not made contact and then you returned three punches to his face. Then he fell backwards on the wooden floor.

(v) Your brother in law came up hearing the noise and upon seeing the deceased fallen on the floor, said "looks like he is dead". You swore at him and scolded him. Your sister had then heard you calling the deceased's name and then calling out for help.

(vi) The Police were alerted by your sister giving them a call. When the Police party arrived, you were seen trying to resuscitate the deceased by giving him CPR. You were arrested and whilst co-operating with the Police in their investigations, you admitted hitting the deceased in your caution interview statement.

(vii) The post-mortem examination revealed that the deceased had anopen wound with contusive swelling above the left eye brow, open wound on the left side of the face below mouth and also a contusive laceration near the right nostril.

(viii) Internally the deceased's face had soft tissue contusions and intra muscular haemorrhages. In addition, the deceased had sub dural haemorrhage of the right parietal area of the brain and sub-arachnoid haemorrhage was observed in the cerebellum and brain stem. The death was due to severe extensive intra cranial and intra ventricular haemorrhages due to severe traumatic head injury caused by blunt trauma.

[4] According to Section 239of the Crimes Decree No. 44 of 2009, the maximum punishment for Manslaughter is imprisonment for 25 years. It is a serious offence.

[5] The tariff for Manslaughter is stated in Statev Ratoa [2004] FJHC 338. The tariff is between a suspended term of imprisonment and 12 years of imprisonment.

[6] In determining the starting point within the said tariff, the Court of Appeal, in Koroivuki v State(Criminal Appeal AAU 0018 of 2010) has formulated the following guiding principles:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

[7] Considering the nature of offending and in the light of the guiding principles enunciated in Koroivuki v State (Criminal Appeal AAU 0018 of 2010), I commence your sentence at 2 years of imprisonment for thecount of Manslaughter.

[8] The aggravating factors are inclusive of severity of the punching and the act of repeated punching.

[9] I add 1 year for the above aggravating factors. Now your sentence is 3 years.

[10] The mitigating factors are:

(i) You are a first offender as conceded by the State;

(ii) You are gainfully employed earning up to $180 per week and also a qualified electrician;

(iii) You are a 39 year old person and father of two young children who depend on you for financial support;

(iv) Your previous good character as indicative by the referrals;

(v) Your co-operation with the Police in their investigations;

(vi) You say that you are remorseful and and is sorry for what you have done. You have apologised to the deceased's daughter and also to your other brothers and sisters.

[11] I deduct 1 year and 6 months for the above mitigating factors. Now the sentence is 1 year and 6 months.

[12] You admitted your actions in the caution interview and pleaded guilty at the earliest possible opportunity. In view of the practice adopted by the Courts for an early plea of guilt, I deduct 1/3 of your sentence. Now your sentence is an imprisonment of 1 year.

[13] You request this Court to consider imposition of a suspended sentence of imprisonment. You also invite this Court to consider the sentence imposed in State v Colata [2008] FJHC 86, where applicable considerations for consideration of a suspended sentence is summarised by Shameem J. It was held that suspended sentences " ... are imposed when the assault was minor, there was a guilty plea, or there was gross negligence rather than wilful assault, and where parties are related".

[14] In this matter the accused pleaded guilty and the parties are related. You are compassionate person as per your pastor's referral, and also a law abiding and productive citizen. Incarceration of you will not serve the community and an alternative sentence is appropriate in the circumstances to meet the objectives of sentencing as per sections 4(2) and 15(3)of the Sentencing and Penalties Decree 2009.Considering these as special circumstances, I suspend the 1 year term of imprisonment imposed on you for a period of three years.

[15] Your sentence is as follows:

Count of Manslaughter - 1 year of imprisonment suspended for a period of three years.

Summary

[16] You are sentenced to 1 year of imprisonment and suspended for a period of three years. The provisions of Section 26(3) of the Sentencing and Penalties Decree are explained to the accused.

[17] You have 30 days to appeal to the Court of Appeal.

AchalaWengappuli
JUDGE

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