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State v Kafoa - Sentence [2022] FJHC 689; HAC34.2020 (31 October 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 34 of 2020

STATE

vs.

SULIANA TUISAVAKA KAFOA

Counsel: Mr. M. Vosawale, Ms. S. Nisa & Mr. H. Nofaga for the State
Ms. L. Filipe & Ms. L. Ratidara for the Accused

Date of Hearing: 17^th – 19^th October 2022
Date of Closing Submission: 20^th October 2022
Date of Judgment: 21^st October 2022
Date of Sentence/Mitigation Submission filed on: 28^th October, 2022
Date of Sentence: 31^st October, 2022

SENTENCE

Introduction

1. Mr. Suliana Tuisavaka Kafoa, you were found guilty and convicted on the 21^st October 2022 of manslaughter of Lorance Shane Visanti a distant cousin of yours by this Court after trial of which I presided. You appear today to be sentenced for the said offence.

Circumstances of the Offending

2. On 18/12/2019 you with Thomas, Robin, and the Deceased Lorance at Jumjumi drinking grog which concluded and then started on the washout with other liquor. Then you all went to you house at Ahau to get another bottle of Rum. This drinking session in this season of celebration and joy had proceeded cordially until an argument erupted between you and Lorance. Both you and Lorance have been angry and both of you were on the verge of fighting each other. Certainly Lorance appears to have been the aggressor to start-with. Thomas and Robin intervened the Lorance and Thomas left to go back to Lorance’s house.
   
3. The evidence clearly proved that you did shortly after Lorance left the house, came along a short cut and waited for Lorance and then executed a series of violent punches directed to the head. These were extremely strong blows and fatal in nature. Lorance died within a short time directly due to hemorrhage caused by the blows. You inflict the injuries to the head and thus caused the death of Lorance, and it was committed with the intention to cause his death.
   
4. You were aware that Lorance was in an extreme state of intoxication and you concealed yourself in the darkness and punched Lorance twice when he fell down. Not stopping there you persisted with your vendetta by punching the helpless man who was on the ground.
   
5. However, as you and the deceased did get into an argument prior to this that night and Lorance threatened to kick you in the mouth and persisted with these threats after you all came to your house at Ahau. In this scenario when you were insulted and threatened in the presence of your own family in your own house this court considered it an extremely serious form of insult and it was quite reasonable you to have lost you self-control and to have got into a rage and a state of great agitation and been simmering in anger. In the circumstances you were convicted for manslaughter.
   

Sentencing regime

6. According to Section 239 of the Crimes Act the maximum penalty for the offence of Manslaughter is imprisonment for 25 years. The offence of manslaughter results in the determination of a human life. Though the degree of culpability of Manslaughter is lesser in comparison to Murder, still the offence of Manslaughter as it involves an act which causes the death of another human being, such an act for whatever reason or under whatever circumstances is indeed an extremely serious offence
   
7. However the tariff determined for attempted manslaughter is between suspended sentences to twelve years imprisonment depending on the circumstances. This was determined by the Court of Appeal in Kim Nam Bae (1999) FJCA 21; AAU 0015/98: (26 February 1999) and their Lordships held thus;

"The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence where there may have been grave provocation to twelve years imprisonment where the degree of violence is high and the 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."

8. Considering the viciousness of the assault, and the manner in which the injuries were inflicted on the head and the seriousness of those injuries caused makes this offending serious and the attack is totally disproportionate to the provocation and is almost bordering on revenge but for the loss of control due to provocation it would certainly have been murder.
   
9. According to the victim impact statement of the wife of the deceased, she was left indignant and destitute with two children who are 12 years and 11 years old now. She as well as her two children are traumatized even today. They have to live on with what little they have. The death of her husband has left painful memories. Even today she gets emotional when she is reminded of him. Without doubt the wife of the victim and her children are continuous suffering psychological trauma which certainly has not diminished even after the lapse of two years. It certainly will remain for a very long time.
   
10. I my mind the circumstances and to the consequence are serious. The offender, from a position of control attacking stealthily in the cover darkness has caused a serious and fatal injury. Therefore, their offending should be related to the most serious band of grievous bodily harm with the additional factor of aggravation that a life has been taken. It is a violent offending at the top end of a spectrum of most violent crimes in respect of which deterrence and condemnation should be principal considerations.
    
11. Upon considering the gravity and objective seriousness of the offences, to my mind it is reasonable and just to pick 8 years’ imprisonment as the starting point of the sentence. However, the final sentence will depend on the mitigating and aggravating factors which I will consider next.
    

Aggravating Factors

12. First, I will consider the aggravating factors. I observe the following aggravating circumstances of your offending:
    1. Multiple punches on the head, three in all,
    2. the extremely serious nature of the injuries,
    100. the third blow was dealt whilst Lorance was on the ground,
    4. the victim was unarmed and you knew that he was drunk, and
    5. you caused misery to the family of late Lorance.
       
13. I am inclined to add 2 years to the starting point for the above-mentioned aggravating factors bringing the interim sentence to 10 years’ imprisonment
    

Mitigating Factors

14. Now as for the mitigating factors the following circumstances were submitted, that you;
    1. Are 37 years of age and have 4 children between 13 and 9 years of age,
    2. This was not a pre-meditated attack but a spur of the moment reaction due to loss of self-control,
    100. The accused seeks forgiveness from the family of the deceased and is remorseful and during the trial he admitted causing injuries which demonstrates he is remorseful,
    4. have no previous convictions and you are a person of previous good character and
    5. cooperated with the police.
       
15. For the mitigating factor as aforesaid will deduct 3 years, leaving a balance of 7 years imprisonment. In view of the reasons discussed above,
    
16. The Defence in your mitigation submitted that you from the very inception was willing to take a progressive approach to a charge of manslaughter. In proof of which a letter dated 26/03/2021 addressed to the DPP informing this was produced with the written submissions tendered on your behalf. The Accused in this court did admit punching the deceased. However, you did not directly admit either in evidence or in the admitted facts that the death was a direct result of the punches inflicted by you. The advanced a false position that it was a chance meeting and that the deceased tried to punch you. However, as to your desire to take a progressive approach at the outset will be considered as a mitigating circumstance. Accordingly, I would deduct period of one year from the above sentence which will leave you with a sentence of 6 years imprisonment.
    
17. I sentence you to a period of six (6) year’s imprisonment for the offence of manslaughter for which you stand convicted.
    

Non-Parole period

18. Having considered the seriousness of this crime, the purpose of this sentence, and opportunities for rehabilitation, I find that four (04) years non-parole period would serve the purpose of this sentence. Hence, you are not eligible for parole for four (04) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    
19. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed compels me to state that the purpose of this sentence is to punish you in a manner that is just in all the circumstances, and in a manner which is just in all the circumstances of the case.
    

Head Sentence

20. Accordingly, I sentence you to a period of six (6) years imprisonment for the offence of attempted manslaughter for which you were convicted. However, you are not entitled to parole for four (04) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    

Actual Period of the Sentence

21. You were in arrested remanded for this case from the 19^th of December 2019 to the 15^th of September 2020. You have been in custody for a period of nearly 9 months. In terms of the provisions of Section 24 of the Sentencing and Penalties Act I hold that the said period of 9 months be considered as imprisonment that you have already served.
    
22. Accordingly, the actual sentence is a period of is Five (05) years and three (03) months imprisonment with a non-parole period of three (03) years and three (03) months.
    

23. You have thirty (30) days to appeal to the Fiji Court of Appeal if you so desire.

..........................................................
Gihan Kulatunga
Judge

At Suva
31^st October 2022.

Solicitors
Office of the Director of Public Prosecutions for the State.
Legal Aid Commission for the Accused.