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State v Naliva - Sentence [2015] FJHC 797; HAC21.2012 (23 October 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Crim. Case No: HAC 21 of 2012

STATE

V

KAVEKINI NALIVA

Counsel: Ms. J. Fatiaki for State
Mr. V. Sharma for Accused

Hearing: 19, 20 and 21 October 2015
Summing Up: 22 October 2015
Judgment: 22 October 2015
Sentence: 23 October 2015

SENTENCE

1. Kavekini Naliva, you are convicted for manslaughter of Vilikesa Kalou.
   
2. The brief facts of the case are that you were drinking at Sigatoka Night Club with others including the deceased. You started an argument with the deceased Vilikesa Kalou on a previous incident. You then punched the deceased on his face causing him to fall on the cement floor where the deceased got injuries to his head. The deceased succumbed to the injuries.
   
3. The prescribed maximum punishment for manslaughter in terms of section 239 of the Crimes Decree 2009 is imprisonment for 25 years.
   
4. In case of Bae V. State [1999] FJCA 21;AAU15u.98s(26 February 1999), after taking into consideration a series of cases the Court said:
   

“The cases demonstrate that the penalty 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 very wide set of varying circumstances which attracts different sentences in different manslaughter cases. Each case will attract the appropriate sentence within the range depending on its own facts.”

5. In case of State V. ViliameRatoa criminal Case No. HAC 173 of 2010S, Court said:
   

"...Manslaughter" is a serious offence, and carries a maximum sentence of 25 years imprisonment. The tariff for manslaughter in Fiji is a suspended prison sentence to a sentence of 12 years imprisonment. Sentences in the upper range were reserved for cases where the degree of violence was high, and the provocation minimal. Sentences in the lower range were reserved for cases where the violence used was minimal, while the provocation was extreme. The tariff covers a very wide set of varying circumstances which will attract different sentences, depending on its own set of facts: Kim NamBae v The State Criminal Appeal No. AAU0015 of 1998S, Fiji Court of Appeal; The Statev. Francis Bulewa Kean Criminal Case No. HAC 037 of 2007S, High Court, Suva; The State v TomasiKubunavanua, Criminal Case No. HAC 021 of 2008, High Court, Suva. Of course, the actual sentence will depend on the aggravating and mitigating factors."

6. In case of State v. TomasiTakaka (High Court Labasa Criminal Case No. 41 of 2014) where the accused was found guilty and convicted after trial was sentenced to 3 years and 2 months. In that case the accused after a fight with the deceased brought the deceased to the concrete floor and continued to assault the deceased by kicking his head and stepping on it.
   
7. In the instant case you initiated the argument with the deceased on a previous incident and therefore you cannot claim that you were provoked by the deceased. You punched the accused once on his face and the deceased fell on the ground. No weapon was used by you.
   
8. The mitigating factors are:
   

You used minimum violence where you punched the deceased once. You did not use any weapon. I also consider your personal details that your counsel has mentioned. Your medical condition that you are on a catheter as a result of the injuries caused by an accident is also considered. You also cooperated with the police in their investigation.

You will not get a discount for your previous good conduct as you are not a first offender.

I pick 5 years as the starting point and deduct 3 years for the mitigating factors mentioned above.

Now your sentence is 2 years imprisonment.

9. Now I will consider whether your two years imprisonment sentence should be suspended.
   
10. In case of State V. Chand CriminalAppeal No. AAU0027 of 2000S the Fiji Court of Appeal referred to what was said in case of R V. Petersen [1994] 2 NZLR 533, on the factors which needs to be weighed in choosing immediate imprisonment or suspended sentence.
    

"Thomas at pp. 245 – 257 lists certain categories of cases with which suspended sentences have become associated, although not limited to them. We do not propose to repeat those in detail since broadly all can be analysed as relating either to the circumstances of the offender or alternatively the offending. In the former category may be the youth of the offender, although this does not mean the sentence is necessarily unsuitable for an older person. Another indicator may be a previous good record, or (notwithstanding the existence of a previous record, even one of some substance) a long period of free of criminal activity. The need for rehabilitation and the offender's likely response to the sentence must be considered. It is clear that the sentence is intended to have a strong deterrent effect upon the offender; if the latter is regarded as incapable of responding to a deterrent the sentence should not be imposed. As to the circumstances of the particular case, notwithstanding the gravity of the offence, as such, there may be a diminished culpability, arising through lack of premeditation, the presence of provocation, or coercion by a co-offender. Cooperation with the authorities can be another relevant consideration. All the factors mentioned are by way of example only and are not intended as an exhaustive or even a comprehensive list. The factors may overlap and more than one may be required to justify the suspension of the sentence in any particular case. Finally, any countervailing circumstances have to be considered. For example, in a particular case the sentence may be regarded as failing to protect the public adequately".

11. The provocation in this case was minimal. You are not a first offender. However, minimum violence was used during the incident.
    
12. The medical report filed on your health condition certifies that you are on a catheter in situ which needs monthly changing of supra pubic catheter and daily dressing of wound site. Your next clinic date is 28 October 2015.
    
13. You have not produced any evidence which includes your medical report that you tendered in Court that indicates that your condition is of a nature which cannot be attended to in the prison or something which needs you to be confined to home or hospital.
    
14. Considering the above factors, acting in terms of s. 26(1) of the Sentencing and Penalties Decree 2009, I order that you serve six (6) months imprisonment out of the above two (2) years sentence, balance eighteen (18) months to be suspended for two years.
    
15. Therefore your final sentence is two (2) years imprisonment out of which six (6) months is to be served and balance eighteen (18) months suspended.
    

Priyantha Fernando
Judge

At Lautoka
23 October 2015

Solicitors
Office of the Director of the Public Prosecutions for State.
Mr. V. Sharma for Accused.