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State v Kubunavanua [2009] FJHC 6; HAC021S.2008 (19 January 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO: HAC 021 OF 2008

THE STATE

V

TOMASI KUBUNAVANUA

Counsel: Ms N. Tikoisuva for the State
Mr. S. Valenitabua for the Accused

Hearing: 19th January 2009
Sentence: 19th January 2009

SENTENCE

Tomasi Kubunavanua you have pleaded guilty to the manslaughter of your aunt Mereani Rokotuisawa. The offence was committed on the 8th of July 2007.

The facts are that on the 8th of July 2007 at 1.00 a.m. you returned to the home of the deceased, where you had been living for several years, after visiting a nightclub. You were drunk and your girlfriend was with you. There was an argument about the fact that you had brought your girlfriend home, and you punched the deceased several times on her head and face. Your girlfriend stopped you and you stopped. You both left the home. At 11.35 a.m. on the same day, the deceased reported the matter to the Nasinu Police Station and was medically examined. She was treated and sent home. On the 4th of August 2007 she was admitted to the Intensive Care Unit at the CWM Hospital. She died on the 8th of August of traumatic ultra cranial injury.

In mitigation counsel tendered your affidavit which sets out an unfortunate history of ill-feeling between you and the deceased. You lived with her at the request of her son Aisake Sauni who was concerned that there was no man living in the household. You tried to leave the home but were requested by the deceased’s son and daughter-in-law to stay. It is not disputed by the prosecution that you were constantly scolded by the deceased and were often told not to eat too much food even when there was plenty of food and you were financially contributing to it, I also accept that prior to the deceased’s funeral you reconciled in the traditional way with the deceased’s son and the family.

Also in mitigation is a letter from your employer which states that you are an experienced draftsman with an engineering firm and that your employer (Shri Singh & Associates Ltd.) has paid for your representation.

You are 27 years old and have one previous conviction for drunk and disorderly in June 2006.

The maximum sentence for manslaughter is life imprisonment but because of the wide range of the types of manslaughter cases before our courts, the tariff is between a suspended sentence to 12 years imprisonment. Where the violence inflicted is minimal and the provocation considerable, sentences are picked at the lower end of the scale. Suspended sentences have been imposed in cases of death by a single punch, where the parties are related and the assault is minor (State v. Mika Bula – HAC 0009 of 1999, State v. Ilaisa Raravula Lesumailepanoni – HAC 0009 of 1999).

In cases referred to me by your counsel, suspended sentences have also been imposed even where there was a greater degree of violence, but where there was an ongoing period of provocation and abuse inflicted on the accused by the deceased (see for instance State v. Samuela Neimila and Another – HAC 0011 of 1998L), State v. Priya Darshini – HAC 007 of 2005).

I accept that the deceased subjected you to years of scolding and annoyance. However I also consider that your conduct on the night of the 8th of July was equally unacceptable. You were drunk and you assaulted a woman who was your aunt. No matter how high the degree of provocation, there can be no excuse for your conduct. In State v. Francis Bulewa Kean – HAC 037 of 2007 where there was a high degree of provocation from the deceased, Winter J sentenced the accused who had assaulted the deceased by punching and kicking him, to 18 months imprisonment. Although your assault is at a lower scale the provocation was not great. I also note that when the deceased initially went for medical treatment the doctors sent her home. I take into account your guilty plea, your remorse and the reconciliation. Taking all these matters into account, I sentence you to two (2) years imprisonment. Because I do not consider the violence to be minimal or the provocation to be of a high degree I decline to suspend the sentence.

[Nazhat Shameem]
JUDGE

At Suva
19th January 2009