Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Yavala [2011] FJHC 103; HAC08.2009 (2 February 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC08 of 2009

BETWEEN:

THE STATE

AND:

JEKESONI YAVALA

Counsel: Mr. M. Kaisamy for the State
Mr. K. Marawai for the Accused

Date of Sentence: 2 February, 2011

SENTENCE

[1] Jekesoni Yavala, you stand convicted of manslaughter on your own guilty plea.

[2] Manslaughter is a serious offence. The maximum penalty prescribed for the offence of manslaughter is life imprisonment.

[3] There is no set tariff for manslaughter due to the range of circumstances found in such cases. This was observed by the Court of Appeal in Kim Num Bae v The State [1999] Criminal Appeal AAU15/98, 26 February 1999. However, the Court said:

"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"

[4] In this case, the deceased was your spouse. You assaulted her under a heat of passion. You lost your self-control when you saw her naked lying beside your cousin brother in an unoccupied house after she had disappeared from your home on the evening of the incident. You attacked your cousin but he managed to escape. The deceased tried to escape but you struck her with a torch. You kicked and punched her several times as she lay on the ground trying to protect her face and head. You then picked her up to return home.

[5] While on your way to your home, you kicked the deceased when she fell to the ground and lost her consciousness. When she could not get up, you carried her to a nearby creek and tried to revive her. She did not respond. You then dragged her for about 20 meters to an outside shower and tried to revive her under running water. A fellow villager came and assisted you to revive her but she did not respond. You took her body inside a house and went straight to the nearest police post and reported the incident.

[6] Post mortem examination of the deceased revealed multiple lacerations, abrasions and bruises all over her body. The cause of death was linked to the internal injuries she had sustained. She died of hemorrhage shock due to rupture of the liver and bleeding in the brain due to fractured skull. The injuries were consistent with physical assault.

[7] Your counsel submitted persuasive mitigation on your behalf. You are 33 years old and a farmer by profession. You have 5 children aged between 12 and 3 years. Your children are depended on you. You have an elderly father to look after. You are their only source of financial support. You did not re-marry after losing your wife in 2009.

[8] You have a previous conviction for larceny in 2005. However, I give no weight to that conviction and treat you as a person of previous good character.

[9] You pleaded guilty at the first opportunity after the charge was reduced from murder to manslaughter. I treat your guilty plea as evidence of contrition deserving substantial credit. After assaulting the deceased you made attempts to revive her when she lost consciousness. You immediately went to the police when you realized that you had seriously injured the deceased. You co-operated with the police during the investigation and confessed to the killing. After you were charged, you spent nearly three weeks in custody on remand.

[10] The offence is nearly 2 years old. You had earlier offered to plead guilty to manslaughter but the State did not accept your offer until the eve of the trial on 1 February 2011. I consider the delay in your favour.

[11] I also have regard to the circumstances of this offence, including the fact that it was committed in circumstances of high emotion caused by the deceased's infidelity. You seek a non-custodial sentence. I do not think that a non-custodial sentence is appropriate in all circumstances of this case.

[12] I accept that the provocation by the deceased was grave and that you did not use a weapon. However, kicking and punching are equally dangerous methods of killing. You used excessive violence causing rupture of the deceased's liver and fracture of skull.

[13] The use of excessive violence resulting in the death of the victim must be denounced and deterred, if we are to respect the sanctity of human life.

[14] Taking all these matters into account, I sentence you to 5 years imprisonment with a non-parole period of 3 years.

[15] You may appeal this sentence within 30 days with the leave of the Court of Appeal.

Daniel Goundar
JUDGE

At Labasa
2 February, 2011

Solicitors:
Office of the Director of Public Prosecutions, Labasa for the State
Marawai Law, Suva for the Accused