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State v Vunisa [2011] FJHC 152; HAC042.2010 (9 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 042 OF 2010

STATE

V

APIMELEKI VUNISA

Mr. L. Sovau for the State
Accused in Person

Date of Hearing: 07 March 2011
Date of Sentence: 09 March 2011

SENTENCE

[1] Apimeleki Vunisa, you have been found guilty by this Court one count of manslaughter contrary to section 198 of the Penal Code, Chapter 17.

[2] The stipulated penalty for manslaughter is life imprisonment, however sentences widely range from suspended sentence to twelve years' imprisonment, depending on the circumstances.

[3] The facts elicited at trial, and obviously believed by the majority of the assessors were that in the evening of the 15th July 2002 you were at the roadside near Naviyago village, Lautoka, perhaps with another, throwing stones onto the Ba-Lautoka highway, when cars were using the road. One of the stones broke a front passenger window of Shalveen Krishna's car and that stone and broken glass hit Shalveen's passenger's head, causing him to collapse into pools of blood. The passenger was rushed to the Lautoka Hospital where he died 2 days later. The pathologist gave the cause of death as fracture of the skull and intercranial bleeding. There can be no doubt whatsoever that your stone caused the damage which led to Dharmendra Prasad's death.

[4] Although you said you were only "having a bit of fun" – throwing stones into the path of moving vehicles is a highly dangerous pursuit and anybody, including you, must have realized the risk of causing great harm in so doing.

[5] As Goundar J. recently said in Jekesoni Yavala – HAC 8 of 2009 (Labasa):

"There is no set tariff for manslaughter due to the range of circumstances found in such cases."

[6] In a very helpful submission on sentence, Mr. Sovau for the State has referred the court to a number of differing sentences. The most apposite authority he refers to is the case of Sowane – HAC 004/2008 where the accused threw a stone, killing the deceased. He was sentenced to three years imprisonment.

[7] The accused was 22 years old at the time of the offence with 5 previous convictions at the time. He worked as a fisherman. He tells me in mitigation that he pleaded guilty and co-operated with the Police from the outset, which is manifestly untrue. He claims to have been influenced by peer pressure a point that he resiled from on query from this Court. He promises never to offend again.

[8] It is important to recognize in this case that there was no provocation, there was no relationship at all between the victim and the accused and the death was the result of a stupid and reckless act on the part of the accused.

[9] An additional factor of aggravation is the lack of remorse shown by the accused in this case. Although he was questioned within days of the incident, he continued to deny involvement right up until 23 April 2010 when he eventually made admissions in a cautioned interview. Even in evidence before me yesterday he said he was never at the roadside that evening let alone throwing stones.

[10] The aggravating features and lack of remorse preclude me from passing a suspended sentence in this case. The stupid and dangerous act of the accused resulted in the death of a young man on the way to visit his fiancée.

[11] The accused will go prison for a term of three years, and he will serve 2 years before being eligible for parole.

Paul K. Madigan
JUDGE

At Lautoka
09 March 2011