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State v Ledua - Sentence [2015] FJHC 643; HAC117.2012 (31 August 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 117 OF 2012

STATE

vs

SAMUELA LEDUA

Counsel : Mr. S. Babitu with Ms. W. Elo for the State
Ms. J. Lagi for the Accused

Date of Judgment : 19th August, 2015
Sentencing Hearing : 20th August, 2105
Date of Sentence : 31st August, 2015

SENTENCE

1. The Accused was charged with the following Counts and was tried before three Assessors only for the Second Count as he pleaded guilty to the First Count.

FIRST COUNT

Statement of Offence

Assault Occasioning Actual Bodily Harm: Contrary to Section 275 of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

Samuela Ledua, on the 8th day of September 2012 at Nadi in the Western Division, unlawfully and repeatedly slapped Viliame Baranage also known as Viliame Satala, an infant, on the cheeks, which caused bruises to form on the said Viliame Baranage also known as Viliame Satala's cheeks.

SECOND COUNT

Statement of Offence

Murder: Contrary to Section 237 of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

Samuela Ledua, on the 8th day of September, 2012 at Nadi in the Western Division, being reckless as to whether death would occur or not, suffocated Viliame Baranage also known as Viliame Satala, an infant, which act caused Viliame Baranage also known as Viliame Satala's death.

2. Accused tendered an unequivocal 'plea of guilty' to the First Count when he was represented by a Counsel.

3. Court accepted the plea of guilt after being satisfied that it was voluntary and free from any influence.

4. Accused agreed a set summary of facts filed by the State in respect of the First Count.

5. Whereupon, the Accused was convicted on the first count when he agreed the relevant facts.

6. Assessors unanimously found the Accused not guilty of Murder as charged and found him guilty of lesser Count of Manslaughter. The Court accepted the opinion of the Assessors and convicted the Accused of Manslaughter.

7. Accused now comes before this Court for sentence on conviction on both the counts.

8. I summarize the agreed summary of facts in respect of the First Count and the facts found by me in convicting the Accused on the Second Count.
9. The Accused Samuela Ledua is 52 years old. He is married to Seini, and they have no children from the marriage. They decided to adopt Samuela's brother-in-Law's one year old grandson, Vilame Satala, also known as Viliame Baranage when his mother abandoned him. Samuela's niece, Varanisese was also residing with them in Barara at the time of the incident. On the day of the incident, Seini had gone for work leaving baby Viliame in the care of the Accused. When the Accused was cooking in the kitchen, baby Viliame started crying in the sitting room. Accused washed him in the bathroom and dressed him up. Baby Viliame continued to cry. Accused came and slapped Viliame repeatedly on his mouth and cheeks. Baby stopped breathing. Samuela asked Varanisese to bring some water. He made the baby drink water. But Viliame did not drink. He had stopped breathing.

10. The matter was reported to Police and the Accused was cautioned interviewed. He had admitted, in his cautioned interview statement, that he blocked baby Viliame's mouth to prevent him from crying. Giving evidence in Court, Accused admitted slapping baby Viliame on his cheeks and pleaded guilty to the First Count.

11. Pathologist who conducted the post mortem examination on baby Viliame's body confirmed that the death of Viliame had been caused by asphyxiation due to smothering or suffocation.

Sentence for Assault Causing Actual Bodily Harm

12. The maximum sentence for Assault Causing Actual Bodily Harm as prescribed under the Crimes Decree is 5 years imprisonment.

The Tariff

13. The Tariff for Assault Causing Actual Bodily Harm was considered in Sereka v State [2008] FJHC 88; Justice Goundar, stated at paragraph 09.

"The tariff for assault occasioning actual harm ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment for the more serious cases of assault"

Sentence for Manslaughter

14. The maximum term of imprisonment for the felony of manslaughter is Imprisonment for 25 years.

The Tariff

15. The tariff for such offence has a wide range. In Kim Nam Bae v The State, (unreported) Fiji Cr. App. No. AAU0015.1998S, 26th February 1999 (at pp.4-5) the Court of Appeal said:

"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. In order to arrive at the appropriate penalty for any case, the courts must have regard to sentences imposed by the High Court and the Court of Appeal for offences of the type in question to determine the appropriate range of sentence"

"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."

16. For manslaughter cases of a serious category sentences can range between 7-10 years: Sashi Kapoor Rayan v The State Cr. App. AAU0028.2000S. As Shameem J commented in The State v Litia Leba Cr. Case No. HAC021.2003S, 11 February 2004 (at p.3):

"With the wide range in the tariff, picking a starting point can become fraught with value judgments as to what a "serious" manslaughter is."

17. Paul Joseph Yates [2001] Cr. App. R (S) 124 was a case where a father was charged for manslaughter of a three month old baby by shaking. The English Court of Appeal reduced the sentence of 7 years imprisonment to 5 years saying that it is 'manifestly excessive'. It was held by Lord Justice Roch that;

"It was accepted that apart from the two occasions when the appellant had shaken the baby, he had been a normal and loving father. The cases which had been cited indicated that the appropriate sentence for manslaughter of a baby was, save in the most exceptional cases, one of immediate imprisonment and that the range of sentences was between two and five years' imprisonment, and occasionally higher when there was evidence of persistent cruel conduct. In the present case there was no evidence of remorse. The Court was persuaded that the sentence was manifestly excessive and that the appropriate sentence would have been five years' imprisonment."

Aggravating Factors

18. Baby Viliame was only one year old at the time of his death. He had been abandoned by his mother. The Accused, no doubt, had been given the custody of baby Viliame by his grandfather in the true belief that upbringing of the child would be safer in the custody of the Accused. Accused has breached the duty of care to highly vulnerable child. He has also breached the trust placed upon him by Vilame's grandfather. I am reminded of the duty of courts to do the utmost to protect the most vulnerable in society. Parents or guardians could not escape their responsibility for their actions by relying on their own problems or illnesses.

19. This is a case of manslaughter in a domestic context. Furthermore, the Accused did not have any regard to psychological impact of his action on his niece Varanisese who was an underage child. She was watching inhumane slapping of innocent Viliame with horror.

20. Viliame had not given any provocation to the Accused. He was only crying. Crying was the only language Viliame could speak to express his grief, hunger or anything of that sort. Even for a minor wrong, corporal punishment is not mandated for a child in a civilised world. The Accused had not shown any compassion when he repeatedly slapped baby Viliame.

Mitigating Factors

21. Post-offence behaviour is relevant to the sentence. The Accused has demonstrated genuine remorse by calling Varanisese to bring water and making the baby drink after Viliame stopped breathing. He has confessed to the Police and admitted what he had done. He pleaded guilty to the First Count in the first instance when the information was read.

22. In commission of the offence Samuela had not used any weapon. There is no evidence of pre planning.

23. Accused is the sole breadwinner of the family and a patient having blood pressure.

24. There is a long list of previous convictions before this Court. However, Samuela has maintained a clear record over the period of past ten years. Hence I consider him to be a first offender.

Suspended Sentence?

25. The Counsel for the Accused has asked for a suspended sentence on the basis of diminished responsibility.

I read State v Devi [2014] FJHC 158; HAC30.2008 (14 March 2014) cited by the Counsel. In that case the mother had caused the death of her child under the age of twelve months by drowning her in the Rewa River, but at the time of the act, the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child. It is a case of an infanticide and cannot be factually equated to the present case.
It was noted in Devi (supra) that;

"It is quite clear that the sentencing practice in Fiji regarding the offences of 'manslaughter' and 'infanticide' is well settled. The issue arises when the accused claims the defence of "diminished responsibility" as it is a relatively new statutory defence which emerged in this jurisdiction with the introduction of the Crimes Decree 2009. The learned defence counsel claims that "... the fact that the mental capacity at the material time of the commission of the offence should not be neglected and should be reflected in sentencing the offender." Thus, he urges that this is a fit and proper instance for the accused to rely on diminished responsibility for her acts".

26. There is no evidence placed before me that Samuela was suffering from any mental impairment at the time of the commission of the offence as in the case of Devi. No such a defence was taken up at the trial.

27. R. v Paul Turner [2001] EWCA Cr. 1331; [2008] EWCA Crim 1407; [2002] 1 Cr. App. R. (S) 50, is a case which discussed whether a custodial sentence is inevitable in the cases of manslaughter of babies. In that case, however, the appellant himself had an impairment of intellectual and social functioning when he committed manslaughter of his 5 weeks old baby, who died of 'shaken baby syndrome'. It was held by Justice Hallett that:

"The overwhelming view of the medical witnesses was that custody was entirely inappropriate for the appellant. The question was therefore whether a custodial sentence was inevitable given the duty of the court to do everything in their power to protect young children. The sentencing judge had an extremely difficult task to perform. He properly reminded himself of the duty of courts to do their utmost to protect the most vulnerable in society. The Court could not disagree with his comment that parents could not escape their responsibility for their actions by relying on their own problems. This did not mean that in every tragic case where a child was killed a custodial sentence was inevitable. There would be exceptional sentences. The question for the Court was whether or not this was one of them. In the Court's judgment it was. The appellant lacked the mental capacity to appreciate the consequences of his actions and intended no harm to his daughters. His responsibility for his actions was significantly diminished. He was an unusual young man with very considerable problems. He was himself vulnerable and in need of protection. The Court felt in the usual circumstances that it could take the exceptional course of quashing the sentence of detention in a young offender institution and substituting a community rehabilitation order for three years with a condition of treatment."

28. In the absence of any evidence medical or otherwise to the effect that the Accused lacked the mental capacity to appreciate the consequences of his actions, I do not think there are exceptional circumstances that warrant suspended sentence in the present case.

Sentence

29. For the first offence, I sentence the Accused for six months imprisonment.

30. Manslaughter is a serious offence. Causing death of a child by an adult by a positive act in a domestic context must be dealt with severely. To reflect the nature of the offending, I take up three years imprisonment as the starting point. I add three more years for aggravating circumstances bringing the interim sentence to six years imprisonment. I deduct three years for mitigating factors bringing the final sentence down to three years imprisonment.
Having considered the age and medical condition of the Accused, I fix the non- parole period at two years. He is eligible for parole after two years of imprisonment.

31. In accordance with the "one transaction" principle sentence for the First Count is to be served concurrently with the Manslaughter sentence.

32. 28 days to appeal to the Court of Appeal.

Aruna Aluthge
JUDGE

AT LAUTOKA
31st of August 2015

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