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State v Kunacola [2004] FJHC 432; HAC0008.2002L (8 July 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0008 OF 2002L

THE STATE

V

SEVULONI KUNACOLA

Counsel: Mr. S. Nand for the State
Ms. J. Nair for the Accused

Date of Hearing: 6 July 2004
Date of Ruling: 8 July 2004

SENTENCE

Sevuloni Kunacola, you have pleaded guilty and have been convicted of the manslaughter of Isoa Taukei of the 19^th January 2001 at Bukuya Village.

The facts tendered by the State and agreed to by you disclose that the deceased and 3 others were drinking liquor in the bush and returned to the village when it was getting dark. The deceased and his companions returned to his house for dinner and later left that house to visit Maleli Uluikaci. On their way they were shouting loudly and using vulgar language. A lot of villagers were attracted by the deceased and his friends' behaviour.

You were at home watching TV and went out of your house to see the group fighting on the street. You told the group to stop fighting and not to cause trouble in the village, following which, the deceased then told you to keep quiet, as he, the deceased, was drunk and had been smoking marijuana. The deceased challenged other villagers to a fight.

You followed the deceased and punched him in the back of the neck, following which, the deceased fell to the ground hitting his head on the road.

He was unconscious and was unable to be revived. He died of asphyxiation after choking on partially digested gastric contents.

You and others took him to hospital and you reported the matter to the police including giving details of your involvement.

You are a “Bati” or member of a warrior clan charged with keeping peace and order in the village.

You are a married man with a wife and 4 year old child and you are also supporting your aged mother. You are 33 years of age and you grow crops in the village to support your family.

After completing an Automotive Trade Certificate at Fiji Institute of Technology, you returned to the village on the death of your father to support your mother and 3 younger sisters. The sisters are now all married.

You are said by the village chief to have reconciled with the family of the deceased. You have shown contrition for the unfortunate incident and have pleaded guilty to the charge avoiding the cost to the State of a trial and the trauma to the village and the members of the deceased’s family that such a trial would cause.

You are a member of the Village Committee and a Sunday School teacher and preacher in the Methodist Church.

“As is to be expected penalties for manslaughter vary widely, depending on the facts and circumstances of each case. Penalties range from suspended sentence to 12 years imprisonment.

In the latter category that the degree of violence is high and provocation minimal.” – Shashi Kapoor Royan v The State – C.A. No. AAU0028 of 2000S.

The circumstances are the tragic consequences of drunken behaviour and the maintenance of order in the village.

Villagers and in particular those in authority must however resort to the rule of law and not the rule of the club to maintain law and order in the village.

I take into account all that has been put to the court in mitigation and I note in particular that: -

1. There was no weapon used;

2. There was no preplanning or premeditation;

3. There was only one punch;

4. The accused has shown contrition;

5. The drunken state of the deceased contributed to his death;

6. The immediate furnishing of information to the police and your co-operation with the Police.
   

Whilst it is necessary to take account of the impact of your conduct on the family of the deceased and the need to deter others in the community from behaving in a similar manner, it is also necessary to look to the degree of criminality shown by you.

It is a most unfortunate incident and calls for an exceptional penalty. The level of violence was indeed very low.

Whilst I am minded that a custodial sentence is appropriate in most instances for the offence of manslaughter, I am of the opinion that the particular circumstances of this case warrant the suspension of a custodial sentence.

You are sentenced to imprisonment for a term of 2 years and I suspend that sentence for 3 years.

JOHN CONNORS
JUDGE

AT LAUTOKA
8 JULY 2004

Endorsement:

The meaning and effect of a suspended sentence (sections 29 and 30 of the Penal Code) explained to the accused.