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State v Motofaga [2010] FJHC 294; HAC127.2009 (12 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC127 of 2009

STATE

v

VAMARASI MOTOFAGA

Hearing: 6th August 2010
Sentence: 12th August 2010

Counsel: Mr. S. Vodokisolomone for State
Ms M. Savou for Accused

SENTENCE

[1] The accused pleads guilty to manslaughter.

[2] The facts are that the accused and the deceased, Motofaga Atalifo, began drinking homebrew liquor at 5.30pm in the afternoon of 10 September 2009 at the accused's home in Rotuma. They drank liquor in the company of some other youths from their village.

[3] At 8.00pm in the evening, the deceased got aggressive and started to punch the wall and table inside the accused's home. The accused got up and tried to control the deceased. In the process, he punched the deceased. The deceased fell down and lay on the floor. After a while the accused returned to the deceased.

[4] The accused further assaulted the deceased while he lay on the floor. The accused grabbed hold of an electric fan and hit the deceased with it several times until another person intervened and stopped him.

[5] The deceased was conveyed to the hospital in Rotuma. He was pronounced dead upon arrival at the hospital. The deceased was 25 years old.

[6] A post mortem was conducted. The post mortem revealed the following external injuries on the deceased:

1. A cut measuring 10mm in length at the outer right eyelid.
   
2. Hematoma on eyelid.
   
3. Sub-conjunctional haemorrhages.
   
4. Multiple small contusions on the neck area.
   
5. Hematoma in the neck muscles.
   

[7] The pathologist found extensive haemorrhage in the skull tissues upon examination of the scalp. The cause of death was brain injury.

[8] Clearly this was a very serious assault administered after the accused had lost control of his temper. The accused was drunk but drunkenness is not a mitigating factor. There was some minor provocation from the victim, who tried to damage the property of the accused after getting drunk.

[9] The fight started when the accused tried to stop the deceased from damaging his property. He never intended to kill the deceased. However, after the deceased fell on the floor, the accused continued to assault him. He used excessive force, resulting in fatal injuries to the deceased.

[10] The accused at the time of the offence was 24 years old. He is now 25 years old. He is a single father with two sons aged 4 and 2 years old. He has attained Form 1 education. Currently, he is unemployed. He co-operated with the police by confessing to the assaults on the deceased. He was arrested on 17 September 2010 and he remained in custody until 12 November 2010, when he was granted bail.

[11] The cases reflect that sentences for manslaughter range from a suspended sentence to 12 years imprisonment.

[12] Having regard to the degree of violence, I pick 6 years as my starting point. I give a discount of 2 years for the guilty plea and 1 year for co-operation with the police, remorse, personal circumstances, previous good character and remand period.

[13] I impose a sentence of 3 years imprisonment. I have considered suspending the sentence and in the event decided not to do so. The offence was committed using excessive violence resulting in a tragic loss of a human life. This sentence is imposed on the accused to signify that the court and the community denounce conduct that results in loss of a human life.

[14] The accused is convicted on his own plea of guilty to manslaughter as charged and is sentenced to 3 years imprisonment with a non-parole period of 2 years.

Daniel Goundar
JUDGE

At Suva
12th August 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for Accused