State v Gounder - Sentence [2018] FJHC 33; HAC194.2016S (30 January 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 194 OF 2016S

STATE

vs

JOHN SUBRAMANI GOUNDER

Counsels : Mr. Y. Prasad and Mr. T. Tuenuku for State
Mr. T. Sharma and Ms. D. Sharma for Accused
Hearings : 22, 23 and 24 January, 2018
Summing Up : 26 January, 2018
Judgment : 26 January, 2018
Sentence : 30 January, 2018

SENTENCE

1. In a judgment delivered on 26 January 2018, the court found you guilty and convicted you on the following information:

FIRST COUNT

Statement of Offence

MANSLAUGHTER: Contrary to section 239 (a)(b)(c) of the Crimes Act 2009.

Particulars of Offence

JOHN SUBRAMANI GOUNDER on the 29 day of April, 2016 at Vuci Road, Nausori in the Central Division, drove a motor vehicle registration number LT 4189 along Vuci Road South in a manner that caused the death of SAIRUSI TOSONACAKACAKA VUNAKECE and at the time of driving, the said JOHN SUBRAMANI GOUNDER was reckless as to the risk that his conduct would cause serious harm to another.

SECOND COUNT

Statement of Offence

FAILURE TO SUPPLY SUFFICIENT SAMPLE TO BREATH ANALYSIS ON THE DIRECTION OF A POLICE OFFICER: Contrary to section 103 (1)(b) and section 114 of the Land Transport Act 35 of 1998 and section 103(1A)(i)(ii) of the Land Transport [Amendment] Decree No. 74 of 2012.

Particulars of Offence

JOHN SUBRAMANI GOUNDER on the 29 day of April, 2016 at Vuci Road, Nausori in the Central Division, upon being required by a Police Officer namely A/CPL 3415 Sikeli to undergo breath analysis, failed to provide sufficient specimen of breath in such a way for the said analysis to be carried out and satisfactorily achieved.

THIRD COUNT

Statement of Offence

FAILURE TO COMPLY WITH REQUIRMENTS FOLLOWING AN ACCIDENT: Contrary to section 63(1) and section 87 of the Land Transport (Traffic) Regulation 2000.

Particulars of Offence

JOHN SUBRAMANI GOUNDER on the 29 day of April, 2016 at Vuci Road, Nausori in the Central Division, being the driver of a motor vehicle registration number LT 4189 involved in an accident on Vuci Road, Nausori failed to stop and give necessary assistance and his name, address and address of the owner and all information as required.

2. The brief facts of the case were as follows: On 28 April 2016 (Thursday), you were drinking grog with two friends at your house at Vuci South Road, Nausori. The three of you drank grog from 8 pm to 12 am on 29 April 2016 (Friday). You had some liquor, and later you and your friends wanted more beer. The three of you then drove to Bob’s store at Vuci road after 12 am, in taxi LT 4189 to buy some beer. When you arrived at Bob’s store, it was closed and you decided to return home. Three policemen were doing traffic radar duties opposite Bob’s store. They were trying to catch speeding drivers travelling to and from Nausori.
   
3. Special Constable 4124 Inoke Tagivakatini (PW2) was one of the officers mentioned above. He suspected that you were speeding, and he signalled you to stop. However, you ignored his request. You continued to drive taxi LT 4189 towards your house along Vuci South Road. PW2 said, they got into their police vehicle and chased you. According to PW2, you were speeding along Vuci South road. PW2 said, you turned off your vehicle headlights and continued driving down Vuci South Road. Unbeknown to you, Sairusi Tosonacakacaka Vunakece, aged 35, was walking down Vuci South Road towards his home. It was very dark early that morning. Your taxi suddenly hit Sairusi. Sairusi was hit on the front right side of your taxi, and thrown onto the right front windscreen. He was later thrown into a nearby drain full of muddy water.
   
4. While severely injured in the muddy drain, he breathed in a lot of mud, which blocked his windpipe, and prevented him from breathing. He suffered a ruptured liver and spleen. He also suffered various traumatic injuries. As a result of the above, Sairusi died at the scene. PW2 later arrested you and took you for a breathalyser test at Nausori Police Station. You failed to give a sufficient sample of breath to the police after three attempts, when requested to do so. You also failed to stop after hitting Sairusi, and failed to give the necessary particulars. According to PW2, you smelt heavily of liquor and your eyes were blood shot. The matter was reported to police, and you were charged with the offences in the information. You were found guilty as charged after a three day trial.
   
5. On the first count of “manslaughter”, I said the following in State v Vilikesa Rinavuaka, Criminal Case No. HAC 239 of 2012S:
   

“...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 Crime 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 Nan 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...”

6. On the second count of “failure to supply sufficient sample to breath analysis on the direction of a police officer,” the maximum sentence, for a first offence is either a maximum fine of $2,000 or a maximum sentence of 2 years imprisonment, and mandatory disqualification from driving from 3 months to 2 years (sections 103 (1)(b) and 103 (1A) of the Land Transport Act 1998).
   
7. On the third count of “failure to comply with requirements following an accident”, the maximum sentence is a maximum fine of $200 or a maximum sentence of 30 days imprisonment, or both such fine and imprisonment (Section 63 (1) and section 87 of the Land Transport (Traffic) Regulation 2000)
   
8. In this case, the aggravating factors, were as follows:
   
   • (i) Reckless Driving Attitude. You were obviously drunk when you drove taxi LT 4189 to Bob’s store on Vuci Road and back to your house at Vuci South Road. You refused to stop when required by a police. You sped down the road, turn your headlight off and bump the deceased. In the process, you killed him. As a taxi driver by profession, your attitude to driving, at the material time, was plainly reckless and below the standard required of a prudent reasonable taxi driver. You must not complain when your liberty is taken away to pay for your crime.
     
   • (ii) Rebellious Attitude when confronted by police. First, you refused to stop after the accident. Then you refused to co-operate with the breathalyzer test. This demonstrated your rebellious attitude to the maintenance of public safety on the road. With this attitude, you don’t deserve to be a taxi driver by profession. You are a menace to the public.
     
   • (iii) By offending against the deceased, you had no regard to his right to life, no regard to his right as a human being and no regard to his family’s right to enjoy life with him.
     
   • (iv) You have obviously caused heartache and sadness to his wife and six children
     
9. The mitigating factors were as follows:
   • (i) You have not offended in the last 10 years.
   • (ii) You had been remanded in custody for 3 days.
     
10. On the manslaughter charge (count no. 1), I start with a sentence of 7 years imprisonment. I add 3 years for the aggravating factors, making a total of 10 years imprisonment. I deduct 1 week for having spent 3 days in custody, while awaiting sentence, leaving a balance of 9 years 51 weeks. I deduct 1 year 51 weeks, for having committed no offences in the last 10 years, leaving a balance of 8 years imprisonment. On count no. 1, I sentence you to 8 years imprisonment.
    
11. On count no. 2, I sentence you to 12 months imprisonment, and you are disqualified from holding or obtaining a driver’s licence for 2 years.
    
12. On count no. 3, I sentence you to 30 days imprisonment.
    
13. The summary of your sentences are as follows:
    
    • (i) Count no. 1: Manslaughter : 8 years imprisonment
    • (ii) Count no. 2: Failure to supply

Sufficient sample

To Breath Analysis

On the Direction of

a Police Officer : 12 months imprisonment, and

disqualified from holding or

obtaining a driver’s license for

2 years.

(iii) Count no. 3: Failure to comply

With Requirements

Following an Accident : 30 days imprisonment.

14. Because of the totality principle of sentencing, the above sentences are made concurrent to each other, that is, a final total sentence of 8 years imprisonment, and a disqualification from holding or obtaining a driver’s licence for 2 years.
    
15. Mr. John Subramani Gounder, for the manslaughter of Mr. Sairusi Tosonacakacaka Vunakece at Nausori in the Central Division and your offending in court no. 2 and 3 on 29 April 2016, I sentence you to 8 years imprisonment, with a non-parole period of 7 years, effective forthwith, and you are also disqualified from holding or obtaining a driver’s licence for 2 years, effective forthwith.
    
16. Pursuant to Section 4(1) of the Sentencing and Penalties Act 2009, the above sentence is designed to punish you in a manner that is just in all the circumstances, to protect the community from reckless drivers like you, to deter other would-be reckless drivers and to signify that the court and the community denounce your offendings on 29 April 2016 at Nausori in the Central Division.
    
17. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Nausori.
Solicitor for Accused : Tirath Sharma Lawyers, Nausori