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State v Navamocea - sentence [2005] FJHC 697; HAC0020.2003L (17 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0020 OF 2003L

STATE

v.

VILIMONE NAVAMOCEA

Mr. K. Tunidau for the State
Accused in Person

Date of Hearing: 8, 9, 10, 14, 15 & 17 November 2005
Date of Sentence: 17 November 2005

SENTENCE

The facts as they appear from your trial are that on the 19^th September 2003 you and 2 others were drinking alcohol and you went and purchased some marijuana and you were then drinking alcohol and smoking marijuana. You then you had a discussion with Epi Raiyane and you then went and got 2 pieces of wood from where you had been cutting wood earlier in the day with the chainsaw and as a result of your discussion it was agreed that you would go and find one Indian man to rob to buy more beer. You went with Epi and laid in wait.

Paras Ram got out of a vehicle. You followed him and he was attacked on the road not with the wood but physically attacked. Paras Ram struggled and got away but his watch and shoes were left on the road way and later found by a neighbour.

You and Epi then ran away towards Paras Ram’s house and got there before Paras Ram. Epi removed 3 louvre blades and you entered the house. Paras Ram arrived home and you hit him on the head with the wood. You then robbed him of money. You then left the premises and threw the wood away a short distance from the house.

Whilst you were carrying out this offence you were wearing a hat that belonged to the third person you were with drinking earlier with Epi, one Joave Kadre. Paras Ram was later found that night by the neighbour who found his watch and shoes on the road. There was a pool of blood beside his head. He was taken initially to Nadi Hospital and subsequently to Lautoka Hospital. On the 23^rd September 2003 he died. He died as a result of the injuries he sustained when he was hit with the wood. He died as a result of acute blood loss secondary to depressed skull fracture.

It is submitted on behalf of the State that the offences you have committed and have been convicted of are offences indicative of behaviour of people such as you who after drinking alcohol and smoking marijuana get the courage to go and do something as stupid and callous as the act that you performed. Something which I am quite sure you wouldn’t normally do. Something which I am sure is out of character but nevertheless something that you did on this night. Something that is perhaps a direct consequence of the drinking of alcohol and smoking of marijuana that was taking place between you and your friends that night.

Self induced intoxication or self induced drug intake is not a justification for the commission of offences such as these. Nothing is a justification for the commission of offences such as these.

The Fiji Court of Appeal has in Kim Nam Bae v The State – Cr. App. No. AAU0015 of 1998S considered penalties appropriate on conviction for manslaughter. The Court there 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 sentences.

The cases demonstrates 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.”

The Fiji Court of Appeal in Sashi Kapoor Rayan v The State – Cr. App. No. AAU0028 of 2000S when again considering the appropriate penalty for manslaughter said:

“As is to be expected sentences for manslaughter vary widely depending on the facts and circumstances of each case. Penalties range from suspended sentence to 12 years imprisonment. In the latter category the degree of violence is high and provocation is minimal.”

In Rauve v The State – Cr. App. No. 13 of 1990 this Court observed:

“However we note that punishment in Fiji for manslaughter of a serious kind has normally ranged from 7 to 10 years imprisonment depending on the degree of gravity.”

It is submitted on your behalf that you are 24 years of age, you are employed in your father’s business that you operate from home and that you married in 2003 and have a 1 year old son. That you were educated up to Form 4 and you left school in 1998 and that you have no prior convictions.

Today your mother and your uncle come to Court to give evidence on your behalf as to the penalty that should be imposed. They say and in particular your mother said that you care for her, for your wife, for your son and for your sister. That you are the source of income. Your father having left the family and migrated overseas and remarried. Not only will your mother, your sister and your wife suffer from a lack of support but your son will suffer from the lack of a father if you are sentenced to a period of imprisonment. Your mother says that there is nobody else to fill the role that you fulfil, to provide money for the family. I accept what your mother says and I accept what your uncle has put to the Court but as you have heard my hands are tied by the decisions of the Fiji Court of Appeal and perhaps so they should be. I accept that you have no prior convictions and I accept the manner in which you have no doubt fulfilled the obligations to your family but the offence for which you have been convicted is indeed a very serious offence. A man’s life has been taken. Another family has lost a husband, a father, a brother and an uncle and that happened because of your behaviour and there is no choice but to impose a custodial sentence upon you.

The authorities to which I have earlier referred would suggest that the term of imprisonment should be in the range of 7 to 12 years. I take as a starting sentence for the conviction of manslaughter the period of 10 years. I take account of your previous good behaviour and the role that you have fulfilled to your family and in doing so I sentence you to imprisonment for a term of 8 years. With respect to the second count of robbery with violence, that offence carries a term in the range of 3 to 5 years in the circumstance that it was committed by you. I sentence you to imprisonment for a term of 4 years. I direct that both sentences be served concurrently.

JOHN CONNORS
JUDGE

At Lautoka
17 November 2005