IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 144 OF 2007

STATE

vs

KITIONE ROKOSUKA

Ms M. Fong for the State
Mr. T. Terere for the Accused

Date of Hearing: 11, 12, 13 and 14 July 2011
Date of Sentence: 15 July 2011

SENTENCE
[Manslaughter by Omission]

[1] Kitione Rokosuka, you have been convicted by this Court after trial of the following count:

Statement of Offence

MANSLAUGHTER: Contrary to section 198, 201 and 213 of Penal Code, Cap. 17.

Particulars of Offence

SUREN CHAND s/o Hans Raj and KITIONE ROKOSUKA on the 9th of August 2006 at the Western Division, by an unlawful omission that is, failing in their duty to take reasonable precautions in securing a live electric wire, caused the death of LUKE JOHN MOLNAR.

[2] The very unfortunate facts of this case are that on the 9th August 2006, a young British volunteer at that time temporarily staying at the Tokoriki Island Resort was fatally electrocuted when collecting his clothes from a galvanized wire clothes line. The young man, only 17, had been with a party of volunteers doing research and collecting data from the coral reefs of Fiji. Enquiries were of course made by the Police and F.E.A (Fiji Electricity Authority) specialists, as well as the O.H.S (Occupational Health & Safety) Branch of the Ministry of Labour. This enquiry led to you. On arriving at Tokoriki in November 2005, as the one and only electrician you, either on instructions or of your own accord, fitted an electrical connection to a temporary coconut leaf "shed" to be used for drinking grog and other social activities. This connection was to provide light to the shed for those purposes and for that you ran a 2.5mm T.P.S cable from the tube light of the bathroom in your room at staff quarters to the shed where you fitted a bulb and a separate switch. The F.E.A inspector found that no proper and industry standard safety devices were fitted to provide protection to this circuit and more seriously that the circuit breaker feeding this illegal connection was of 20 amps, far too large for this purpose.

[3] It is believed that a particularly violent storm in the morning of 9th August 2006 caused the temporary shed to collapse on to your sub-standard connection, thereby forcing it into contact with an unprotected No. 8 wire being used as a clothesline, thereby causing electricity to flow through the line. When the deceased touched the line he was electrocuted and thrown to the ground together with the line which continued to surge electricity through his upper body. A post mortem examination showed burn marks to his hands and upper chest; injuries consistent with electrocution. Had you fitted an appropriate circuit breaker as well as proper RCDs (safety devices), it is probable that when another boy had earlier been shocked (but survived) the circuit would have been broken and this unfortunate fatality would not have occurred.

[4] You left Tokoriki Resort after only a few months and 8 months before this fatality. The reason you left was in your own words "the company was using below standard materials such as low standard circuit breakers instead of RCDs for the electrical wirings. The wirings were below standard as well. The kind of circuit breakers that were used while I was in employment were not safe". Yet knowing that you did not remove your own sub-standard connection to the temporary shed, thereby creating a continuing hazard to guests and staff over and above the already sub-standard electrical installations at Tokoriki Island. 

[5] It must be regarded as an aggravating feature that you, with a Trade Certificate as an electrician from F.I.T, compromised your professional status by creating this extremely unsafe connection and when leaving the island you left this potential hazard to life and limb extant.

[6] Electricity is one of the most dangerous utilities channeled by man for the use of mankind. It is a potentially very dangerous commodity that can kill with impunity. Electricians are trained not only to treat this energy with respect but also to protect consumers and others from harm by installing proper protective devices and isolators by recognized safety procedures. Electrical installation standards in Fiji are based on the Australian standards which are high standards, and the F.E.A expert has said that the standard of your temporary installation fell well below that standard.

[7] This Court accepts that despite your gross negligence in installing this connection AND in leaving it there, your actions fell well below the standards expected of a reasonably prudent electrician and that indictment will be reflected in the starting point of your sentence.

[8] Your counsel has provided me with written and oral submissions on your behalf. He tells me that you are 34 years old, you are married with a 3 year old son and a baby to be born any day. Your wife is a school teacher and having accepted a job in Kadavu the family have relocated to that island. You are presently unemployed, but when these proceedings are complete you will look for work near to your family. You have a clear record and come from a traditional God fearing i-Taukei family. Your counsel produces cases of manslaughter by omission, all of which result in suspended sentences and he asks that you also be subject to a non-custodial sentence.

[9] The Court however is slightly troubled by your seeming lack of remorse. You still maintain your innocence, despite your conviction, and you stress the fact that this fatality occurred 8 months after you left the resort. The fact is, that had you not put this sub-standard connection in place, and left it there, this death would not have occurred and you must bear responsibility to that extent. What you did was a contributing factor to the fatality. When pressed on the matter of remorse, you belatedly instructed your counsel that you accepted responsibility for failing to secure the wire although you did not foresee the fatality.

[10] What happened on 9th August 2006 could perhaps be regarded as a "freak" accident but as counsel for the State says it was an accident waiting to happen. Obviously nobody could foresee what did happen, but when the death occurred it is quite apparent that your sub-standard wiring which was left in place when you moved off the island was a major contributing factor, and your lack of remorse or understanding of that does not assist you in your mitigation. The belated acceptance after hearing the Court's concerns rings rather hollow.

[11] Mitigation by the convict must be balanced by consideration of the public interest and by the need of the family of the deceased to have "closure" on the episode. The parents of the deceased have written a very moving, heartfelt letter to the Court where they express their abject sense of loss of their son Luke; it is a testimonial to his good character and of the grieving that has been a large part of their lives for the past five years. I take this profoundly sad testimonial into consideration but it would be wrong to punish you on the basis of this alone. It is the negligence that is relevant in this case. The public interest must also be of concern. Electricians have a duty to protect all persons from danger and it is in the public's interest that they know they can go about their activities in safety: particularly tourists at our resorts in Fiji. All electrical workers in Fiji must be made known by this sentence that they have a strict duty of care to members of the community, and especially tourists, and if that duty is breached, they must bear the consequences.

[12] In the case of Toka – HAC 0008 of 2003(S), Shameem J. looked at sentences for manslaughter by gross negligence and concluded that they should be from 12 months to 5 years. She referred to the English Court of Appeal decision in Attorney General's Reference (Nos. 19, 20 and 21) [2002] 1 Cr. App. R(S) 33 where it was said the sentencing court should consider:

(1)	the conduct causing death and the degree of negligence;

(2)	public concern and the need for deterrence; and

(3)	whether violence was intended.

Shameem J. then went on to consider whether non-custodial sentences should be imposed. She said "although I do not doubt that you have suffered as a result of this death, as has your family, as the State says, all human life is precious and when it is taken by the grossly negligence act of a person…a custodial sentence is inevitable."

[13] This Court concurs with those dicta. Your grossly negligent installation of sub-standard wiring which you as an electrician must have known to be inadequate, was the contributing factor in the death of the tourist in August 2006. Because of that and because of your seeming lack of remorse a non-custodial sentence is totally inappropriate.

[14] I am aware that this case has been hanging over your head for nearly five years now and that must have been extremely stressful for you; nevertheless that must be balanced by the stress that the family and friends of the deceased have been experiencing in the same time.

[15] In acknowledgment of the deceased's family's interest, the interests of the general public (and in particular tourists), the degree of negligence on your part as a "qualified" electrician, I take as a starting point for this crime a term of two years. That starting point subsumes all aggravating features referred to. For your mitigation (which includes your clear record and your limited remorse) I deduct a period of 6 months meaning that the total term of imprisonment that you will serve will be a term of 18 months, and you will serve a minimum term of 12 months before being eligible for parole.

Paul K. Madigan
JUDGE

At Lautoka
15 July 2011