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State v Vokula - Sentence [2024] FJHC 544; HAC106.2023 (11 September 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 106 of 2023

STATE

V

1. MOSESE VOKULA
2. SALASEINI DICAKI

Counsel: Ms. Rukalesi Uce with Mr. Muhammed Rafiq for the State
Mr. Abishek Samy for the 1^st and 2^nd Accused

Sentence Hearing: 14 August 2024
Sentence: 11 September 2024

SENTENCE

[1] Mosese Vokula and Salaseini Dicaki, as per the Information filed by the Director of Public Prosecutions (DPP), you were charged with the following offence:

FIRST COUNT

Statement of Offence (a)

MANSLAUGHTER ARISING FROM BREACH OF DUTY: Contrary to Section 240 and 241 (2) of the Crimes Act 2009.

Particulars of Offence (b)

MOSESE VOKULA and SALASEINI DICAKI, on the 21^st day of January 2018, at Nadi, in the Western Division, being the parents of LIDIA ROKOBATI, a 2 year old child, made an omission which amounted to a negligent breach of duty, by not conveying LIDIA ROKOBATI to an authorized Medical Facility, which resulted in the death of the said LIDIA ROKOBATI.

[2] This matter was first called before me on 25 July 2023. On 8 September 2023, the DPP filed the Information in Court, while the Disclosures relevant to the case were filed in Court and served on the defence on 16 October 2023.

[3] Mosese Vokula and Salaseini Dicaki, on 1 November 2023, you were ready to take your pleas. On that day you both pleaded not guilty to the charge against you in the Information. However, on 20 February 2024, you wished to take your pleas once again. On that day you both pleaded guilty to the charge against you in the Information. This Court was satisfied that you both pleaded guilty on your own free will and free from any influence. Court found that you both fully understood the nature of the charge against you and the consequences of your guilty pleas.

[4] Thereafter, the State filed the Summary of Facts. On 9 May 2024, the Summary of Facts were read out and explained to you and you understood and agreed to the same. Accordingly, Court found your guilty pleas to be unequivocal. I found that the facts support all elements of the count of Manslaughter Arising from a Breach of Duty in the Information, and found the said count proved on the Summary of Facts agreed by you. Accordingly, I found you both guilty on your own pleas and I convicted you of the charge of Manslaughter Arising from a Breach of Duty.

[5] Mosese Vokula and Salaseini Dicaki, I now proceed to pass sentence on you.

[6] The Summary of Facts filed by the State was as follows:

1. BACKGROUND
   
   • 1.1 The 1^st accused is Mosese Vukula (hereinafter referred to as the 1^st accused). The 1^st accused was 34 years of age and was a Bowser Attendant at the material time.
     
   • 1.2 The 2^nd accused is Salaseini Dicaki (hereinafter referred to as the 2^nd accused). The 2^nd accused was 35 years of age and was unemployed at the material time.
     
   • 1.3 The deceased is Lidia Rokobati (hereinafter referred to as the deceased) and she was 2 years old at the material time.
     
   • 1.4 The 1^st accused and 2^nd accused are the biological parents of the deceased. The two accused and the deceased were residing at Bangladesh Road, Navakai, in Nadi at the material time.
     
2. INCIDENT
   
   • 2.1 On the 21^st of January 2018, the two accused were at home with the deceased and their son namely Asaeli Tuivuka, 9 years old student of Andrews Primary School (hereinafter referred to as Asaeli). At about 4.00 p.m., the 2^nd accused asked Asaeli to boil some water for tea. Whilst the water was boiling in the electric kettle, the circuit breaker went off and the 2^nd accused asked Asaeli to check with their landlord.
     
   • 2.2 Before Asaeli returned from their landlord, the power came back on and the water in the kettle continued to boil. The deceased then asked the 1^st accused to remove her diaper as she wanted to relieve herself outside. The 1^st accused removed the deceased’s diaper and while the deceased was making her way outside, she got tangled in the lead wire that was connected to the kettle due to which the deceased slipped on the floor and fell backward onto the hot water.
     
   • 2.3 The deceased was in pain and was crying a lot. The 1^st accused together with the 2^nd accused then took the deceased to Litea Lotawa (hereinafter referred to as PW1) 61 years of age, domestic duties, of Waqana Settlement, Nadi. PW1 is originally from Beqa and she is a traditional masseuse.
     
   • 2.4 PW1 was at home with her husband, namely Nemani Lotawa (hereinafter referred to as PW2) 65 years of age, unemployed, of Waqana Settlement, Nadi, when the 1^st accused and 2^nd accused came to their home with the deceased. The 1^st accused and 2^nd accused requested PW1 to heal their daughter who was suffering from burns. According to PW1, her ancestors are known for healing burns using traditional methods.
     
   • 2.5 PW1 then agreed to apply traditional healing to calm the deceased and after that she immediately told the 1^st accused and 2^nd accused to take their daughter to the Nadi Hospital as the child was still young and looked very weak. PW2 also informed the 1^st accused and 2^nd accused to convey their daughter to Nadi Hospital. The 1^st accused and 2^nd accused then left PW1’s house with their daughter but they did not go to Nadi Hospital and instead returned to their home.
     
   • 2.6 On the 22^nd of January 2018, the 1^st accused and 2^nd accused took the deceased again to PW1’s house. PW1 advised the 1^st accused and 2^nd accused to convey their daughter to the Nadi Hospital. Whilst at home and after applying the traditional methods to her burns, PW1 noticed that there was no change in the child’s condition. They all had to eventually look for a transport to convey the child to the hospital. According to PW1, she had informed the 1^st and 2^nd accused to take the deceased to the Nadi Hospital. The deceased was pronounced dead on arrival at the Nadi Hospital.
     
   • 2.7 The deceased’s body was conveyed to the Lautoka Morgue. A post-mortem examination was conducted on the 24^th of January 2018 at the Lautoka Hospital by Doctor Avikali Mate, the Government Pathologist.
     
   • 2.8 As per the post-mortem report of the deceased dated 24^th January 2018, the cause of death were as follows:-
     

Disease or condition leading to death

1. Pontine Herniation
2. Extensive Cerebral Oedema

100. Acute Dehydration
     

And the external causes were

4. Mixed thickness burn

(Estimated 16% of total body surface area)

Annexed and marked as PE1 is the Post Mortem Report of Lidia Rokobati.

3. ARREST, RECORD OF INTERVIEW AND CHARGE
   
   • 3.1 The matter was reported to the Police and investigation was carried out.
     
   • 3.2 The 1^st accused and 2^nd accused were arrested and taken to Nadi Police Station.
     
   • 3.3 The two accused were interviewed under caution and admitted the circumstances how the deceased sustained burns on her body. They also admitted that they did not convey the deceased to the Nadi Hospital for medical examination, but took her to PW1’s house for traditional healing. They admitted that the deceased was pronounced dead when she was eventually taken to the Nadi Hospital.
     

Annexed and marked PE2 is the Record of Interview of the 1^st accused dated 17^th September 2021.

Annexed and marked PE3 is the Record of Interview of the 2^nd accused dated 9^th September 2021.

3.4 The 1^st accused and 2^nd accused were later charged with the offence of Manslaughter Arising from Breach of Duty contrary to Section 240 and Section 241 of the Crimes Act 2009.

[7] Mosese Vokula and Salaseini Dicaki, you have admitted to the above Summary of Facts and taken full responsibility for your actions.

[8] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

[9] Furthermore, Section 4(2) of the Sentencing and Penalties Act provides that a Court must also consider the following factors when sentencing an offender:

(2) In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender’s previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

[10] I have duly considered the above factors in determining the sentence to be imposed on you.

[11] In terms of Section 240 of the Crimes Act No. 44 of 2009 (“Crimes Act”):

A person commits an indictable offence if —

(a) the person makes an omission; and

(b) the omission causes the death of another person; and

(c) the first-mentioned person —

(i) has a duty to the other person in accordance with section 241;

(ii) the omission amounts to a negligent breach of the duty, such omission is or is not accompanied by an intention to cause death or bodily harm.

The offence of Manslaughter Arising from a Breach of Duty, in terms of Section 240 of the Crimes Act, carries a maximum penalty of 25 years imprisonment. It is to be noted that the offence of Manslaughter, in terms of Section 239 of the Crimes Act, also carries a maximum penalty of 25 years imprisonment.
[12] Section 241 of the Crimes Act is re-produced below:

(1) Every person having charge of another who —

(a) is unable by reason of age, sickness, unsoundness of mind, detention or any other cause to withdraw from such charge; and

(b) who is unable to provide himself or herself with the necessaries of life —

whether the charge —

(i) is undertaken under a contract; or

(ii) is imposed by law; or

(iii) arises by reason of any act (whether lawful of unlawful) of the person who has such charge, to provide for that other person the necessaries of life—

shall be deemed to have caused any consequences which adversely affects the life or health of the other person by reason of any omission to perform that duty.

(2) It is the duty of every person who, as head of a family, has charge of a child under the age of 14 years, being a member of his or her household, to provide the necessaries of life for the child; and he or she shall be deemed to have caused any consequences which adversely affect the life or health of the child by reason of any omission to perform that duty, whether the child is helpless or not.

[Emphasis is mine]

(3) It is the duty of every person who as an employee has contracted to provide necessary food, clothing or lodging for any employee or apprentice under the age of 16 years to provide the same; and he or she shall be deemed to have caused any consequences which adversely affect the life or health of the servant or apprentice by reason of any omission to perform that duty.

(4) It is the duty of every person who, except in a case of necessity, undertakes —

(a) to administer surgical or medical treatment to any other person; or

(b) to do any other lawful act which is or may be dangerous to human life or health —

to have reasonable skill and to use reasonable care in doing such act; and he or she shall be deemed to have caused any consequences which adversely affect the life or health of any person by reason of any omission to observe or perform that duty.

(5) It is the duty of every person who has in his or her charge or under his or her control anything (whether living or inanimate, and whether moving or stationary) of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precaution to avoid such danger; and he or she shall be deemed to have caused any consequences which adversely affect the life or health of any person by reason of any omission to perform that duty.

[13] Mosese Vokula and Salaseini Dicaki, according to Section 240 of the Crimes Act the maximum penalty for the offence of Manslaughter Arising from a Breach of Duty is a term of imprisonment of 25 years. The offence of Manslaughter involves the loss of a human life. As a result of your omission, which amounted to a negligent breach of duty, the life of another human being has been lost. Though the degree of culpability of Manslaughter is lesser in comparison to Murder, still the offence of Manslaughter involves the death of another human being. Causing another person's death for whatever reason or under whatever circumstances is indeed a serious offence. In this instance, most unfortunately, it is your own child (your daughter), who was 2 years old, whose life has been taken away.

[14] In the case of Kim Nam Bae v. The State [1999] FJCA 21; AAU 0015 of 1998S (26 February 1999), the Fiji Court of Appeal held as follows;

"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."

[15] It can be noted from the above case, that the Court of Appeal had observed that the penalty imposed for Manslaughter ranges from a suspended sentence to 12 years for different Manslaughter cases. Thus, the case of Kim Nam Bae (supra) seems to be only making an observation on the range of sentences which were pronounced by the courts in Manslaughter cases, rather than establishing a tariff for the offence.

[16] In the case of State v. Dumukoro [2016] FJHC 199; HAC27.2014 (23 March 2016), His Lordship Justice Vincent Perera having considered and analysed 21 sentencing decisions in Manslaughter cases stated “From the above decisions I have perused, it is evident that this court has been inclined towards selecting a starting sentence of 5 years imprisonment or above for the offence of Manslaughter. In majority of the cases, the court has taken 5 years as the starting point.”

[17] Accordingly, Justice Perera held “......since this court has been more favourable towards selecting 5 years as the starting point, I am inclined to form the view that the tariff for the offence of Manslaughter under Section 239 of the Crimes Decree (Act) should be 5 years to 12 years imprisonment.”

[18] I am inclined to agree with the above tariff of 5 years to 12 years imprisonment proposed by Justice Perera for the offence of Manslaughter. In State v. Seniceva & Others [2017] FJHC 481; HAC26.2016 (29 June 2017); State v. Naimoso & Others [2018] FJHC 345; HAC095.2016 (27 April 2018); State v. (Asenaca) Baulawamafi [2023] FJHC 366; HAC71.2022 (7 June 2023); State v. (Uate) Qio [2023] FJHC 385; HAC173.2022 (14 June 2023); and State v. (Marisilina) Qereitoga [2024] FJHC 177; HAC69.2022 (19 March 2024); I followed the same tariff for the offence of Manslaughter.

[19] In determining the starting point within a tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[20] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, Mosese Vokula and Salaseini Dicaki, I commence your sentences at 5 years imprisonment for the offence of Manslaughter Arising from a Breach of Duty.

[21] Mosese Vokula and Salaseini Dicaki, as per my opinion, the only aggravating factors in this case is the tender age of the deceased, who was only 2 years old at the time of her passing away; and that the negligent breach of duty on your part was a gross negligent breach of duty.

[22] Mosese Vokula and Salaseini Dicaki, in mitigation you have submitted as follows:

(i) That you are both first offenders and that you have no previous convictions to date. The State too confirms that there are no previous convictions recorded against you.

(ii) That you both fully co-operated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice.

(iii) You both have submitted that you are truly remorseful of your omission which amounted to a negligent breach of duty. You have promised not to re-offend and said you are willing to reform.

(iv) That you both entered a guilty plea during an early stage during these proceedings.

[23] Considering the aforementioned aggravating factors, Mosese Vokula and Salaseini Dicaki, I increase your sentences by a further 2 years. Now your sentences would be 7 years imprisonment.

[24] Mosese Vokula and Salaseini Dicaki, I accept that you are both first offenders and that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine and the fact that you have promised not to re-offend and undertaken to reform. Accordingly, considering these mitigating factors, I deduct 3 years from your sentences. Now your sentences would be 4 years imprisonment.

[25] Mosese Vokula and Salaseini Dicaki, I accept that you entered a guilty plea at an early stage during these proceedings. Although, it cannot be said that your guilty plea was at the first given opportunity, nevertheless, in doing so, you saved precious time and resources of this Court. For your guilty pleas I grant you a further discount of 12 months.

[26] In the circumstances, Mosese Vokula and Salaseini Dicaki, I sentence you each to 3 years imprisonment for the offence of Manslaughter Arising from a Breach of Duty, contrary to Section 240 of the Crimes Act.

[27] The next issue for consideration is whether your sentence should be suspended.

[28] Section 26 of the Sentencing and Penalties Act provides as follows:

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—

(a) does not exceed 3 years in the case of the High Court; or

(b) does not exceed 2 years in the case of the Magistrate’s Court.

[29] Mosese Vokula, you are now 37 years of age [Your date of birth being 6 April 1987]. At the time of the offending, which was over 6 years ago, you were 31 years of age. You are married to the 2^nd accused. You now have two children – a son aged 15 years old, attending Navosau Adventist High School; and a daughter aged 6 years old, attending Drauniivi Primary School. The deceased was your second child. You are residing with your family in Drauniivi Village, Rakiraki.

[30] You are said to be employed as a Caretaker at Fiji Pine in Drauniivi earning approximately $200.00 per week. You are said to be the sole breadwinner of your family and your entire family is currently, financially and emotionally dependant on you.

[31] You have submitted a character reference from Pastor Maika Vakamelei, of the Drauniivi Seventh Day Adventist Church. Therein, it is stated you have been an active member of the church and the community and that you are a person of very good character.

[32] Salaseini Dicaki, you are now 38 years of age [Your date of birth being 7 December 1985]. At the time of the offending, which was over 6 years ago, you were 33 years of age. You are married to the 1^st accused. You now have two children – a son aged 15 years old, attending Navosau Adventist High School; and a daughter aged 6 years old, attending Drauniivi Primary School. The deceased was your second child. You are residing with your family in Drauniivi Village, Rakiraki.

[33] It is stated that you are suffering from a serious heart condition. As per the medical report submitted to Court, it is confirmed that you are suffering from Ischaemic Heart Disease and Acute Coronary Syndrome (NSTEMI). Furthermore, you are suffering from persistent hypertension which is under continuous investigation. Due to your medical condition, it is stated that you are fully dependent on your husband.

[34] You both have submitted that the incident happened in 2018 and that you were charged in 2023, which was almost 5 years later. You lost your loving daughter following the tragic incident and almost every day thereafter you say that you are repenting and missing your daughter. It is stated that the emotional and psychological trauma that the two of you have gone through has been severe and which you will carry throughout your life time.

[35] In Singh & Others v. State [2000] FJHC 115; HAA 79J of 2000S (26 October 2000); Her Ladyship Madam Justice Shameem held:

“....However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence.”

[36] In Nariva v. The State [2006] FJHC 6; HAA 148J.2005S (9 February 2006); Her Ladyship Madam Justice Shameem held:

“The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment.”

[37] In State v. (Kami) Namalo [2014] FJHC 199; HAC167.2013 (25 March 2014); the accused was convicted for Manslaughter Arising from a Breach of Duty for the death of his 4 month old daughter. He was sentenced to 18 months imprisonment, which sentence was suspended for a period of 3 years.

[38] In State v. Mesake Raburau & Another [2014]; HAC 326 of 2013 (9 June 2014); the two accused (parents of the deceased child) were convicted for Manslaughter Arising from a Breach of Duty for the death of their 1 year 4 month old son. The two accused were sentenced to 24 months imprisonment, which sentence was suspended for a period of 2 years.

[39] In State v. (Maria) Teresia [2014] FJHC 461; HAC057.2013 (27 June 2014); the accused was convicted of two counts of Manslaughter Arising from a Breach of Duty for the death of her 4 year old daughter and 2 year old son. The accused was sentenced to 24 months imprisonment, which sentence was suspended for a period of 3 years.

[40] In State v. (Asenaca) Baulawamafi (supra); the accused was convicted for Manslaughter Arising from a Breach of Duty for the death of her 1 year and 7 month old son. This Court sentenced the accused to 32 months imprisonment, which sentence was suspended for a period of 5 years.

[41] Similarly, in State v. (Marisilina) Qereitoga (supra); the accused was convicted for Manslaughter Arising from a Breach of Duty for the death of her 1 year and 3 month old daughter. This Court sentenced the accused to 3 years imprisonment, which sentence was suspended for a period of 6 years.

[42] Mosese Vokula and Salaseini Dicaki, you have admitted to the Summary of Facts and taken full responsibility for your actions. You both cannot be considered as young offenders. However, you are both first offenders with previous good character. You have fully co-operated with the Police in this matter and you have accepted responsibility for your conduct. You have submitted that you are truly remorseful of your omission which amounted to a negligent breach of duty and promised not to re-offend and stated that you are willing to reform. Although not at the very outset, you both have entered a guilty plea during an early stage during these proceedings.

[43] Mosese Vokula, you had been in remand custody for this case from 11 July 2023 to 18 August 2023, on which day you were granted bail by the High Court. That is a period of over one month in remand.

[44] For the aforesaid reasons, it is my opinion that the chances for your rehabilitation is high. Therefore, I deem it appropriate to suspend your sentences.

[45] However, in order to deter you and other persons from committing offences of the same or similar nature, and also to protect the community we live in, I suspend your sentences for a period of 5 years.

[46] In the result, Mosese Vokula and Salaseini Dicaki, your final sentences of 3 years imprisonment, is suspended for a period of 5 years. You are advised of the effect of breaching a suspended sentence.

[47] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT LAUTOKA
Dated this 11^th Day of September 2024

Solicitors for the State: Office of the Director of Public Prosecutions, Lautoka.

Solicitors for the 1^st and 2^nd Accused: Office of the Legal Aid Commission, Lautoka.