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State v Saumadu [2002] FJHC 5; Hac0012.2002 (27 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 12 OF 2002

THE STATE

v.

KITIONE SAUMADU

Mr. W. Kurisaqila - For the State
Mr. K Bulewa - For the Accused

SENTENCE

This is an unfortunate case of death resulting from inaction by police but more so by Lami Town Council to accused’s complaint of intolerable noise originating from a residence converted into church.

The accused, Kitione Saumadu was charged with Manslaughter Contrary to Section 198 of the Penal Code, Criminal Intimidation Contrary to Section 330(b) of the Penal Code and Damaging Property Contrary to Section 324(1) of the Penal Code. He pleaded guilty to all three counts.

FACTS:

The accused is a storeman with the Fisheries Department. He came home on 20^th September 2001 at 7.45 p.m. His children told him that they could not study due to the noise which was coming from next door residence turned into a church. The noise from the church had been a source of disturbance to the accused’s family and he had on numerous occasions complained to the police and the Lami Town Council.

He went next door to complain but was attacked by dogs as he entered the gate. He came back home to get a knife to fend off the dogs. He entered the church and with his knife hacked at some furniture while shouting and wielding his knife.

He confronted the Pastor inside the church. The congregation ran away.

The accused came out of the church and met the deceased Josevata Vai aged 33 who moved towards the accused. The accused swung the knife at the deceased and hit him on the head. The deceased died as a result of the knife wound which was 150mm in length.

The accused himself went to Lami Police Station and admitted to striking the deceased with the knife.

The accused is forty-five years old, married man with three young children, two of whom are in primary school and one in kindergarten. He is employed by the Fisheries Department. His superiors at employment consider him an efficient and competent worker. Testimonials from others also speak highly of the accused. His family has a substantial debt to be paid to the Westpac Banking Corporation.

I can treat him as a first offender as the earlier conviction is trivial and old.

Counsel for the accused submitted that the accused was labouring under provocation in that his family had been subjected to continuous barrage of noise from the unauthorized church activity from neighbour’s compound and being confronted by a stone throwing decrees immediately before the incident. This noise from the church had gone on for some years and the accused had written to police and to Lami Town Council about the noise level. Letters written by the accused bear this out.

Manslaughter covers a wide variety of situations and sentences meted out reflect that. What has to be considered is the relationship between the nature and extent of provocation offered and the nature and degree of retaliation. Greater the disparity between the two and greater the time lapse, the more severe the sentence.

In SASHI KAPOOR RAYAN v. THE STATE – Criminal Appeal 28 of 2000 the Fiji Court of Appeal commented –

“As is to be expected, sentence for manslaughter vary widely, depending on the facts and circumstances of each case. Penalties range from suspended sentences to twelve years imprisonment. In the latter category the degree of violence is high and provocation minimal. In RAUVE v. STATE (Criminal Appeal 13 of 1990) this court observed. However, we note that punishment in Fiji for manslaughter of a serious kind has normally range from seven (7) to ten (10) years depending on the degree of gravity.”

In the present case the mitigating factors are accused’s plea of guilty. He can be treated as a first offender. No doubt the accused and his family had been subjected to intolerable noise which must have been loud by use of speakers from a residence turned into a church, in the middle of a residential area. He had done all he could by complaining to police and the town council in writing about the noise.

On the day in question he came home and his children told him of noise and them not being able to study. He went unarmed to complain but was turned away by attack from dogs. He returned home and took a knife to deal with the dogs, not to injure anybody.

He caused a commotion and alarm inside the church. On his way out back to his home, he was met by the deceased who threw a part of brick at the accused, which missed the accused. Before the deceased could throw a second stone, the accused hit him only once with the knife. I was told by the counsel, the head was not aimed at but knife struck him on the head. The accused was also in custody for about nine months.

The accused is remorseful. He surrender to police himself. He admitted the offence. I am told his family has apologized in traditional manner to the family of the deceased.

The aggravating features of the case are use of weapon. A cane knife is a lethal weapon as it proved to be. The deceased was struck on the head causing a 150mm incision would reflect the force behind the blow.

Given the circumstances of this case, I do not see that this is a proper case for suspended sentence. That type of sentence is confined to cases of gross provocation with minimal violence generally a punch of two in the nature of common assault and victim falling back and injuring his head. The violence here was gross. The provocation offered by noise and the stone wielding deceased was not overwhelming. The retaliation was out of proportion to provocation offered.

In all the circumstances of the case I sentenced the accused as follows:

Count 1 - 3 ½ years imprisonment

Count 2 - 6 months imprisonment concurrent to Count 1

Count 3 - 1 month imprisonment concurrent to Count 1 & 2.

(Jiten Singh)
JUDGE

At Suva
27^th August 2002

HAC0012.02S