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State v Uluinaceva [2002] FJHC 324; HAC006.2001S (14 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 006 OF 2001S

STATE

V

MARIKA ULUINACEVA

Mr G. Allen & Mr J. Waqavolavola for State
Ms J. Nair for Accused

SENTENCE

Marika Uluinaceva, you have been convicted on your plea of guilty to Manslaughter contrary to section 198 of the Penal Code. You, on the 4th of January 2001, at Nasinu, by an unlawful act caused the death of Rusiate Kotobalavu.

The facts, which you have agreed to, disclose that on New Year’s day in 2001, you with your friends were drinking at Cunningham when the deceased with three men approached and confronted your group because of an earlier robbery of the deceased’s brother by a member of your group. In the resulting fight, the deceased was injured and fell to the ground. While he was lying semi-conscious on the ground and bleeding from his nose and mouth, and while attempts were being made to assist him, you then ran towards him and jumped on his stomach, while two of your friends assaulted him about the head and upper body.

The deceased died because his intestine was ruptured, and 3½ litres of peritoneal fluid had penetrated his stomach cavity. Although the deceased suffered injuries to other parts of his body, it was this damage to the intestine that caused his death. On the facts, it is apparent that it was your blow on the stomach that caused the deceased’s death.

I have taken into account all that has been said on your behalf by counsel, particularly your young age, your previous good character, the references submitted by your church, and the length of time spent in custody.

As both counsel correctly submitted, the tariff for manslaughter is between a suspended sentence and 12 years imprisonment. Your previous co-accused, Maciu Koroi and Jovilisi Moceimereke received a sentence of 2 years imprisonment and a suspended sentence respectively. However they were charged with a much less serious offence, of Assault Occasioning Actual Bodily Harm.

Although I accept that there was some provocation in this case, and that the deceased began the fight, your brutal act of jumping on a man’s stomach when he was already down, and obviously seriously hurt, must place this case well above the lower end of the tariff for manslaughter. I choose as my starting point 7 years imprisonment. After taking into account, all the mitigating factors including good character and the deceased’s conduct, I arrive at a sentence of 5 years imprisonment. You have already spent 1 year and 10 months in custody, and for that I reduce the sentence further by two years. I arrive at 3 years imprisonment. For the reasons I have given, this is not an appropriate case for a suspended sentence.

You are sentenced to a period of 3 years imprisonment.

Nazhat Shameem
JUDGE

At Suva
14th November 2002