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State v Wang Xi Peng [2010] FJHC 509; HAC113.2010 (16 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 113 OF 2010

BETWEEN:

THE STATE

AND:

WANG XI PENG

Counsels: 1. Ms. R.Drau for the State
: 2. Mr. A. Naco for the Accused
: 3. Ms. M.Savou from Legal Aid Commission as Amicus Curiae

Date of Hearing: 09th November 2010
Date of Sentence: 16th November 2010

SENTENCE

1. The Director of Public Prosecution had preferred the following charge against the Accused above named:
   

"WANG XI PENG is charged with the following offence:

Statement of Offence

MANSLAUGHTER: Contrary to Section 239 (c) (ii) of the Crimes Decree 2009, No. 44 of 2009

Particulars of Offence

WANG XI PENG on the 29th day of May 2010 at Lami in the Central Division caused the death of Zhang Bin in a manner which was reckless having regard to all the circumstances of the case."

2. The accused pleaded guilty to the charge of Manslaughter at the very 1st occasion. On accepting the plea to be unequivocal the Court convicted as charged.
   
3. Now I consider the relevant law. Section 239 (c) of the Crimes Decree states as follows:
   

"A person commits an indictable offence if -

(c) the first-mentioned person-

(i) intends that the conduct will cause serious harm; or

(ii) is reckless as to a risk that the conduct will cause serious harm to the other person

Penalty – Imprisonment for 25 years."

4. As per the Crimes Decree the maximum sentence is 25 years imprisonment.
   
5. Now I consider the facts of the case as per the summary of facts filed by the State.
   

"The accused is one Wang Xi Peng, aged 20, originally from China. The victim (deceased) is one Zhang Bin aged 21, Boat Manager, residing at Vatuwaqa. The accused resides in Muaiwalu. He first got into the country in January, 2008 and works at his father's internet shop situate at Muaiwalu jetty.

On 29/5/10, the accused visited his girlfriend, one Alice, at her apartment at Duncan Road, to drop off drinks. As the accused left the said Apartment, he met the deceased and duly asked him as to his purpose of visit to the Apartment. The deceased then told the accused that he had invited Alice (girlfriend of accused) to dinner. On the same night, the accused, his girlfriend and the deceased went to MHCC where the deceased indicated to the accused that he had wanted to have a conversation with him.

After dispersing from dinner, the accused called the deceased on his phone and informed him that Alice was his girlfriend and that they loved each other and questioned his invite to dinner, to which the same responded that the accused was not capable of caring for Alice and this instilled anger in the accused.

Later in the evening, at about 9pm, the deceased and accused met and engaged in a few non-alcoholic drinks at the Novotel in Lami. After the drinks, both the accused and deceased walked out of Novotel. As they walked out, the accused suggested that they spoke then, however, the deceased insisted that they walked further out into the dark by the shoreline.

As they walked, the accused told the deceased that he was not comfortable with him and as he turned towards the car park, the deceased pulled him back and punched him on the chin, causing him to fall. As the accused lay on the ground, the deceased pursued jumping on him causing them both to fall into the sea. They had a scuffle in the water for a few minutes where the accused retaliated by punching and holding on to the deceased neck area, being aware of the substantial risk that when he was strangling the deceased, death would result, but he unjustifiably undertook the risk as the deceased then fell deeper into the water."

6. Now I consider the tariff for the offence of Manslaughter. In the case of State v Milika Vadei [2010] FJHC 168; HAC0068.2009s [21st May 2010] His Lordship, Justice Temo stated the following when sentencing an accused person for the offence of Manslaughter:
   

"Manslaughter is a serious offence. It carries a maximum sentence of life imprisonment. However, case laws in Fiji seemed to show that penalties for manslaughter ranger from a suspended sentence to 12 years imprisonment. Sentences in the upper range were reserved for cases where the degree of violence was high and the provocation given was minimal. Sentences at the lower end of the scale were reserved for cases where the violence used was minimal and the provocation given was in the extreme: see Kim Nam Bae v The State, Fiji Court of Appeal, Criminal Appeal No. AAU0015 of 1998S; The State v Frances Bulewa Kean, Criminal Case No. HAC 037 of 2007; State v Amali Rasalusalu Criminal Case No. HAC 003 of 2003, High Court, Suva. The actual sentence passed will depend on the presence or otherwise of strong mitigating and/or aggravating factors."

7. In State v Kean [2007] FJHC 69; HAC 037.2007 (26 October 2007) per Winter.J, when sentencing the accused for the offence of Manslaughter, considered the following sentencing range, prior to addressing the aggravating and mitigating factors:
   

"[14] Manslaughter, the killing of a fellow human being by an unlawful act is recognized by the legislature as a very serious matter. It is also recognized that the offence can have varying degrees of culpability requiring different sentence. [See The State v Ananai Curubea, Criminal Case No. HAC 0010 of 1997S, 11 July 1997 Pain.J].

[15] Penalties range from a suspended sentence to 12 years imprisonment. What is clear from the case law is that sentences in the upper range are required where the degree of violence is high and any provocation minimal. Sentences at the lower end of the scale are reserved for those cases where the violence used is minimal and provocation extreme..."

[17] In State v Apete Kuliniasiasi, HAC 008 of 2004 I sentenced the accused to 2 ½ years imprisonment for an assault during a brawl which led to the deceased's pavement death. The assault was a punch and several kicks when the deceased was down. Earlier cases of death caused by single punches (State v Mika Bula, HAC 0009 of 1999, State v Ilaisa Raravula Lesumailepanoni, HAC 0018 of 1999 and State v Akuila Manu, HAC 0007 of 1999) have led to suspended sentences where the assault was minor, and the parties were related.

[18] This case deserves a starting point of 3 years imprisonment."

8. In Bae v State (1999) FJCA 21. The Judges of Court of Appeal considered sentencing as follows:
   

"We have been referred to several cases of sentence on manslaughter in the High Court as well as in the Court of Appeal to unable us to determine the correct range of sentence for this type of offence. With respect, this is the correct approach that should be taken by the courts. The task of sentencing is not an exact science which is capable of mathematical calculation. This is 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."

9. Considering all above judgment the tariff is from suspended sentence up to 12 years imprisonment.
   
10. Section (4) (1) of the Sentencing and Penalties Decree, No. 42 of 2009 deals with the purpose for which sentencing may be imposed and these include:
    
    • (a) to punish offenders to an extent and in a manner which is just in all the circumstances;
      
    • (b) to protect the community from offenders;
      
    • (c) to deter offenders or other persons from committing offences of the same or similar nature;
      
    • (d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;
      
    • (e) to signify that the court and the community denounce the commission of such offences; or
      
    • (f) any combination of these purposes. (emphasis added)
      
11. Considering the nature of the offence and the facts of the case I commence the sentence at 5 years imprisonment.
    
12. Now I consider the aggravating factors.
    
    1. Accused had assaulted the deceased which caused the death.
       
    2. Accused had left the deceased unattended in the water.
       

Considering the aggravating factors I increase 1 year. Now your sentence is 6 years imprisonment.

13. Now I consider the mitigating circumstances.
    
    1. Accused is a 1st offender
       
    2. Accused is 20 years old
       
    100. It is the deceased who initiated the fight
         
    4. Deceased provoked accused
       
    5. Accused also received injuries
       
    6. Accused is remorseful
       
    7. Accused is in remand for more than 5 months.
       

Considering all mitigating circumstances above I reduce 3 years. Now your sentence is 3 years imprisonment.

14. Now I consider Section 15(3) of the Sentencing & Penalties Decree No. 42 of 2009.
    

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this part."

15. Considering suspending sentence. PART IV at Section 26 of the Sentencing and Penalties Decree, No. 42 of 2009 then deals with "Suspended Sentences of Imprisonment."
    

Suspending imprisonment

"26.-(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment proposed, or the aggregate period of imprisonment where the offender is sentenced in the proceedings for more than one offence –

(a) does not exceed 3 years in the case of the High Court; or

(b) does not exceed 2 years in the case of the Magistrate's Court.

(3) A court proposing to make an order suspending a sentence of imprisonment must before making the order, explain or cause to be explained, to the offender in a language likely to be readily understood by the offender –

(a) the purpose and effect of the proposed order; and

(b) the consequences that may follow if the offender commits

another offence punishable by imprisonment during the operational period of the sentence.

(4) A wholly suspended sentence of imprisonment shall be taken for all purposes to be a sentence of imprisonment.

(5) A partly suspended sentence of imprisonment shall be taken for all purposes to be a sentence of imprisonment for the whole term of imprisonment stated by the court."

16. In R v Marikar[2010] SASCFC 36 at paragraph (9) per Duggan J, the Supreme Court of South Australia, stated that:
    

(9) "Section 38(1) of the Sentencing Act enables the Court to suspend a sentence of imprisonment if "good reason exists for doing so". In Dinsdale v The Queen, Kirby J held that when determining whether a sentence will be supended it is necessary to revisit the same considerations which are relevant to the task of deciding whether a sentence of imprisonment was appropriate in the first place. These included the circumstances of the offence and the personal circumstances of the offender."

Further in paragraph 11 of his sentencing remarks:

(11) "..that the combination of mitigating factors outweighs the factors tending in the other direction. It is apparent from his remarks on sentence that he suspended the sentence because of the respondent's good character, the losses which he has suffered as a result of the offences and the detriment to his family if he is required to serve a period of imprisonment." (emphasis added)

17. What is the duration of suspending a sentence in other wards what is the operational period of suspended sentence. There is no statutory limit on the operational period for a suspended sentence of imprisonment which a Court may impose against an offender, provided the substantive sentence of imprisonment or the aggregate terms of imprisonment the High Court sentences the accused person for does not exceed 3 years imprisonment.
    
18. The Sentencing & Penalties Decree, No. 42 of 2209 does not provide the period of suspension. I refer the relevant provision in the Penal Code (Cap 17) Section 29 states as follows:
    

"(1) A court which passes a sentence of imprisonment for a term of not more than two years for an offence, may order that the sentence shall not take effect unless, during a period specified in the order, being not less that one year nor more than three years from the date of the order, the offender commits in Fiji another offence punishable with imprisonment and thereafter a court having power to do so orders under the provisions of section 30 that the original sentence shall take effect; and in this and in sections 30, 31 and 32 "operational period" in relation to a suspended sentence means the period so specified in the order.

(2) A court which passes a suspended sentence on any person for an offence shall not make a probation order in his case in respect of another offence of which he is convicted by or before the court or for which he is dealt with by the court.

(3) A court which passes a sentence of imprisonment for a term of not more than six months in respect of one offence shall not make an order under the provisions of subsection (1) where-

(a) The act or any of the acts constituting that offence consisted of an assault on or threat of violence to another person or of having or possessing a firearm, an imitation firearm, an explosive or an offensive weapon or of indecent conduct with or towards a person under the age of sixteen years;

(b) That offence is one in respect of which a probation order or order for conditional discharge was originally made or the offender was subject to such order at the time of committing the offence; or

(c) On the occasion on which a sentence is passed for that offence, the court passes or proposes to pass a sentence of immediate imprisonment on the offender for another offence which the court is not required to suspend.

(4) On passing a suspended sentence the court shall explain to the offender in ordinary language his liability under the provisions of section 30 if during the operational period he commits an offence punishable with imprisonment.

(5) Subject to any provision contained in any written law-

(a) A suspended sentence which has not taken effect under the provisions of section 30 shall be treated as a sentence of imprisonment for the purposes of any written law which provides for disqualification for a loss of office or forfeiture of office of persons sentenced to imprisonment; and

(b) Where a suspended sentence has taken effect under the provisions of section 30, the offender shall be treated for the purpose of such written law as having been convicted on the ordinary date on which the period allowed for making an appeal against an order under that section expires or, if such an appeal is made, the date on which it is finally disposed of, or abandoned or fails for non-prosecution."

19. Considering the period of suspension there are many theories and philosophies put forwarded by the academics and practitioners. The simple and logical reason I found for the operational period is, when a sentence is suspended, it gives time to rehabilitate the accused and to warn him that his sentence is hanging just above his head and if he commits any offence it will fall on him. This will prevent him of committing any crime.
    
20. In most of the countries the operational period commences at 3 years and ends at 10 years. The previous conviction operational period ends at 10 years. This may be the reason that this also ends at 10 years, but commencement is open to the trial judge.
    
21. I am mindful that the accused is kept under certain bondage, but it is not a trauma because, the suspended period comes into operation IF he commits an offence, if not, he need not be worried. On the other hand we should be mindful of the victims and the society at large. The common citizen would like to live in a crime free environment. The operational period is not imposed on an ordinary person but to a convicted criminal. Therefore he has to pay the price.
    
22. Considering the available laws and text books the period of operation can be set between 3 years to 10 years.
    
23. Now I consider the facts and all other circumstances of this case. I suspend the sentence of 3 years to a period of 8 years.
    
24. Further the parents of the accused had undertaken to provide a detailed rehabilitation programme for the accused. He may continue to study at the suggested institution.
    
25. Accused is explained of the gravity of the suspended sentence in Chinese Mandarin language through the official translator.
    
26. I wish to place it on record the unstinted support provided by the State Counsel Ms. Rosemary Drau and Ms. M. Savou from Legal Aid Commission who appeared on the invitation of the Court as amicus curiae.
    
27. You have 30 days to appeal to the Court of Appeal.
    

S Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Naco Chambers for the Accused
Office of Legal Aid Commission