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State v Sigavinaka [2005] FJHC 528; HAC0011.2004L (14 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0011 OF 2004L

STATE

v.

SIMIONE SIGAVINAKA

Mr. M. Korovou for the State
Ms. J. Nair for the Accused

Date of Hearing: 14 September 2005
Date of Sentence: 14 September 2005

SENTENCE

Simione Sigavinaka, you have pleaded guilty, that on the 30^th day of December 2003, Malolo, Nadi in the Western Division by an unlawful act caused the death of Mere Vokanivanua. This is your sentence.

The facts that you have acknowledged are that between 6.30am and 7.45am on the 30^th December 2003 at Malolo on Tunalia Road, Nadi in the Western Division caused the death of Mere Vokanivanua at the time she was 25 years of age.

You and she had been living as husband and wife for the last 6 years at that time. You then at that time had a 2 ½ year old daughter. You and she both worked in Ghimli Garment Factory in Namaka and you lived in a 2 bedroom flat at Malolo, Nadi.

On the 29^th December 2003 at about 6.00pm, you and she finished work and went to Nadi to do some shopping. You gave what was purchased to your wife and you told her to take the lead home. You were going back to your workplace to have some drinks with some friends.

You then took your friends to Malolo to drink in a vacant house. At around midnight, one of your friends, Kaliova Kolilevu and Siteri Nakatudrau left the group to sleep in your spare bedroom while you and your friend moved to Apolosi Seru’s house and continued drinking till 6.00am on the 30^th December 2003.

You went home at around 6.00am and the deceased opened the door of the house. You and she had argument after which she started screaming for help. Her screams for help were heard by your friends in the second bedroom and by other neighbours. According to a neighbour, the deceased screamed for help lasted about 30 minutes before everything was quiet.

You admitted in your caution interview that you slapped the deceased twice and punched her once on the face. You also admit that the deceased’s head hit the concrete wall and the concrete floor when she was felled by your punch.

The Post Mortem report dated the 31^st December 2003 shows that the deceased suffered significant injuries which most relevantly might be summarized as a sub-dural hematoma over the brain especially over the left cerebrum. Sub-arachnoid haemorrhages also over the left cerebrum. Partially collapsed lungs bilaterally. Extensive scalp haematomas and haemorrhages and it reports the cause of death as being sub-dural haematomas and sub-arachnoid haemorrhages consistent with heavy blows to the head.

At around 1.00pm, you went to call the deceased to have lunch but she did not respond to your calls. You left the deceased and joined your other friends to have lunch. At around 4.30pm, you told your friends that the deceased was still not responding to your calls.

You then on the advice of your friends took the deceased to the Nadi Hospital. You and your friends then arranged for a transport. Upon arriving at the hospital, she was taken to the Emergency Department where she was pronounced dead. You were subsequently arrested and interviewed and you admitted punching the deceased.

You were born on the 7^th October 1975. You were 28 years of age at the time the offence was committed and you are now 30 years of age.

You attended Barotu Indian School from Classes 1 to 8 at the Rakiraki Public School until 1991. In 1994 to 1999 you were employed as a guardman with Guard Force and later in 2000, you obtained employment as a garment worker in Namaka. You are currently employed as a labourer at San Bruno Hotel in Nadi. You are described as having co-operated with the police in the course of their investigation. Whilst you have three prior convictions dating back to 1996, two of those three convictions are subsequent to the commission of this offence, certainly unrelated behaviour.

You told the court by your counsel that you have a relationship with your daughter, that you have reconciled with the deceased’s parents and that they take care of your daughter and I am urged by your counsel to impose upon you a non custodial sentence or at least a sentence of less than 3 years.

The Fiji Court of Appeal considered the difficulty in determining an appropriate punishment for manslaughter in Kim Nam Bae v The State – Cr. App. No. AAU0015 of 1998S. The court in that case said:

“The task of sentencing is not an exact science which is capable of mathematical calculation. This particularly so with manslaughter where the circumstances and the offender’s culpability can vary greatly from case to case. An appropriate sentence in any case is fixed by having regard to a variety of competing considerations. In order to arrive at the appropriate penalty for any case, the courts must have regard to sentences imposed by the High Court and the Court of Appeal for offences of the type in question to determine the appropriate range of sentence.

The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence where there may have been grave provocation to 12 years imprisonment where the degree of violence is high and provocation is minimal. It is important to bear in mind that this range covers a very wide set of varying circumstances which attract different sentences in different manslaughter cases. Each case will attract the appropriate sentence within the range depending on its own facts.”

It is suggested that there would be some provocation in this case and that you were provoked by your wife when she questioned you when you returned home at 6.00am. I find such provocation to be minimal.

In Sashi Kapoor Rayan v The State – Cr. App. No. AAU0028 of 2000S, the court there noted that sentences for manslaughter of a serious case range from 7 to 10 years and of a less serious type fall into a midrange, which I take to be 3 to 6 years and of course, even less serious in low range below 3 years.

I have been referred to State v Mosese Waqasaqa Rawaqa – Cr. Case No. HAC0007 of 2001S where Madam Justice Shameem imposed a sentence of 9 years imprisonment after trial for a death resulting from a domestic situation and what Her Ladyship described as a situation where the accused had beaten the deceased to death.

I am also referred to State v Anand Dinesh Mani & Anor – Cr. Case No. HAC0005 of 2000S, a further decision of Madam Justice Shameem, Her Ladyship imposed a term of imprisonment of 6 years on the accused who was convicted after trial where the circumstances involving the death of the deceased included the use of the knife. In passing sentence Her Ladyship noted:

“Although I did not put this case into a category of minimal provocation with gross violence nor do I consider the case of grave provocation with minimum violence.”

I take from the words used that it was seen by Her Ladyship as a midrange type of case. In addition, counsel for the accused refers the court the decision of Mr. Justice Govind, a term of imprisonment of 18 months was imposed upon an accused after trial where the deceased died of drowning in a shallow creek after being punched twice by the accused. Again, a death arising from a domestic situation.

The State refers the court to the State v Salesh Virendra Kumar – Cr. Case No. HAC0004 of 2004, Mr. Justice Govind sentenced the accused to 2 ½ years imprisonment where the accused was convicted on a plea of guilty. Again for a death resulting from a domestic situation.

The incidence of domestic violence offences in this country seems constantly high with an unacceptable level of its acceptance of violence thereto and its incumbent on the court to clearly show that such behaviour is not acceptable in any community in this country.

State Counsel urges that a starting point of 4 ½ years is inappropriate. With that I concur, however, I am of the opinion that a significant discount is to be given to the accused by virtue of his early plea of guilty notwithstanding that the offences were committed some 1 year and 10 months ago. The State on

the 9^th September 2005, filed an information with respect to manslaughter and immediately a plea of guilty was entered.

It is appropriate for a discount of one-third to be given for an early plea of guilty and in my opinion the accused is entitled to the total of this discount. In doing so, I reiterate as I said at the outset or more particularly, what was said by the Court of Appeal in Kim Nam Bae, that the task of sentencing is not an exact science which is capable of mathematical calculation and nor should it be. However, giving you what the law might consider the maximum discount for the early plea of guilty I come to a resultant sentence of 3 years imprisonment and accordingly, you are sentenced to imprisonment for 3 years.

JOHN CONNORS
JUDGE

At Lautoka
13 September 2005