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State v Busa [2007] FJHC 80; HAC 95.2007 (30 November 2007)

IN THE HIGH COURT OF THE FIJI ISLANDS
CRIMINAL JURISDICTION
AT SUVA

CRIMINAL CASE NO: HAC 95 OF 2007

THE STATE

V

KILIONI BUSA

Mr. Tevita Vodokisolomone for the State
Ms. S. Nair [LAC] for the Accused

Date of Sentencing: 30 November 2007.

SENTENCE

1. The accused, KILIONI BUSA was initially charged with murder. The case was set for trial to begin on 26 November 2007. On that date, the State Prosecutor sought leave of the court to amend the charge in the Information to manslaughter. Leave was granted and the amended charge is as follows:
   

Statement of Offence

MANSLAUGHTER: Contrary to sections 198 and 201 of the Penal Code Cap 17

Particulars of Offence

KILIONI BUSA on the 19th day of May 2007 at Lomanikoro Village, Rewa, in the central Division, unlawfully caused the death of JOELI VULAILAI.

2. The amended charge was read to the accused who understood it and he was asked for his plea. He pleaded guilty. The court then adjourned to Wednesday 28 November 2007, to allow the prosecution and defence to reach agreement on the facts for sentencing. It also gave the defence an opportunity to prepare mitigation and arrange character witnesses they may wish to call.
   

The Facts

3. There were no agreed facts. However, the facts outlined by the State Prosecutor, was agreed to substantially by the defence counsel with some variations. The facts may be summarized as follows:
   

‘ On 19 May 2007 the deceased Joeli Vulailai who had been drinking with others threw a stone at the house of one Eta Rasuaki, a villager of Lomanikoro Village, Rewa. The accused father, Emosi Toalevu who was drinking yaqona in that house, came out to investigate who threw the stone. He saw the deceased standing outside and ask him why did he threw the stone at the house. An argument developed and the deceased assaulted EmosiToalevu with a piece of wood. As a result Emosi Toalevu fell to the ground and was punched by the deceased.

The accused who was also in the house at that time, saw that his father was being assaulted by the deceased came out and to rescue his father from the continuing assault, he hit the deceased in the back of his head with a piece of bamboo. The deceased became unconscious as a result and was lying near a drain close to his sister-in-law’s house. The deceased was discovered by one Sainimili Liku, who observed blood coming from his ear and nose. The matter was reported to the Police at about 11pm on 19 may 2007.

The Police arrived at 1 am on 20 May 2007. One Inspector Viliame Caqusau felt for the pulse of the deceased and found none. The deceased body was conveyed to Nausori Hospital, where the Doctor on duty confirmed his death.

The Post Mortem Examination of the deceased was undertaken by Dr Eka Buadromo, the Consultant Pathologist at CWM Hospital on 22 May 2007 and in her opinion the death of Joeli Vulailai was caused by ‘intracranial haemorrhage due to blunt impacts on the head ’.

A copy of the Post Mortem Report prepared by Dr Eka Buadromo was tendered and a copy of the Cautioned interview Statements of the Accused Kilioni Busa.

The accused when arrested by the police never denied hitting the deceased with the bamboo. He told the court through his counsel, he did it to save his father. The accused acted under provocation when his father was assaulted by the deceased. He told the court he never intended to kill the deceased, simply to subdue him from assaulting his father.

The accused and the deceased are first cousins – their fathers are brothers.

Guidelines in Manslaughter Sentences

4. The Fiji Court of Appeal in Kim Nam Bae v. The State [1999] AAU 15/98 has set out some guiding principles for sentences in manslaughter cases. In summary the Court of Appeal stated the following:
   
   • Not an exact science capable of mathematical calculation;
   • Circumstances and offenders culpability vary greatly
   • Appropriate sentence is fixed having regard to competing considerations;
   • Appropriate penalty is arrived at by considering precedent cases in the High and Court of appeal;
   • Range is from suspended sentences, where provocation is high to 12 years imprisonment, where degree of provocation is minimal and violence high, depending on the circumstances
     
5. In passing sentences in this case I will be guided by those considerations and how they impact the specific circumstances of this case. I have also taken on board the observations of the Court of Appeal in Vilimoni Navamocea v. The State, Crim App No: AAU 02 of 2006 with regard to sentences in cases involving loss of life.
   

Review of relevant Case law

6. In addition to the Fiji Court of Appeal cases I have referred to above, the only other case that were useful in my determination of the sentence in this case was:
   
   1. Shashi Kapoor v The State, FCA Crim App No: AAU 028 of 2000 – in this case the Court of Appeal upheld a sentence of 3 years imprisonment given by the High Court. The provocation was minimal. The victim died as a result of injuries caused by the accused punching and kicking the victim.
      
7. The following High Court cases were also reviewed for determining the sentences that I may appropriately passed in this case:
   
   1. The State v. Sevuloni Kunacola [2004] FJHC 432 – This case is similar to this one. It involves villagers who were drinking alcohol and smoking marijuana and behaving in a disorderly manner in the village. The accused, a member of the "BATI’ clan intervened and punched the deceased who died as a result. The sentence was 2 years imprisonment suspended for 3 years.
      
   2. The State v. Samuela Neimila & Josaia Nacika [2001] FJHC 104 – This case also involved a drinking party in a village. The deceased was punched several times by the accused persons after he started punching accused 1. Accused 2 who is a brother of the deceased told the court he only punch the deceased to stop him from punching accused 1 in his house. The sentence was 18 months imprisonment suspended for 3 years.
      
   3. In The State v Ilaisa Lesumailepanoni Crim Case No: HAC 009/99, the deceased died as a result of a punch inflicted by the accused in a drinking incident. The accused was sentence to 2 years imprisonment suspended for 3 years.
      
   4. In The State v Mikaele Buliruarua, Crim Case No: HAC 001/02 – the accused and the deceased were work mates. During an argument the accused slapped the deceased causing the deceased to fall backwards on to a tarsealed surface. He died as a result of the fall. The accused was remorseful and pleaded guilty. The sentence was 2 years imprisonment suspended for 2 years.
      
   5. The State v Shakuntala Devi d/o Chandar Pal Singh, Crim Case No: HAC 001/2001S – in this case the accused the younger sister of the deceased was subjected to prolonged and constant verbal abuse and insulting behavior from her. On 24 November 2000 the deceased returned from Nausori Town saw the accused sleeping in the porch of her house. The deceased swore at the accused in hindi – extreme words were used. The deceased told the accused that she would finish her that day and the tried to hit the accused with a piece of wood. The accused ran to her house and returned with a kitchen knife, with which she stabbed the deceased. The accused was sentenced to 2 years imprisonment suspended for 2 years.
      

Sentence in this case

8. I take the starting point of 4 years imprisonment as appropriate in the circumstances of this case. I considered the following in making that choice:
   
   • Minimal violence involved
   • The fact that the deceased was the aggressor.
     

Mitigating Factors

9. In mitigation counsel for the accused has submitted the following and which I accept:
   
   • 25 year old single living with his father;
   • Parents separated when accused was 8 years old, he lived with father always;
   • First offender and his action is out of character
   • Primary school level of education
   • Live with father in village and the father is dependent on accused for support;
   • Lack of premeditation or planning on the part of the accused in committing the unlawful act that caused the death;
   • Traditional reconciliation undertaken through the mediation of the local chief and families are now reconciled and living normally;
   • Deceased is close relative of the accused and will live with the trauma of his action for the rest of his life;
   • The accused was remorseful and he pleaded guilty at the first opportunity when the charge was reduced;
   • Fully cooperated with Police in their investigation
     
10. For the above factors in mitigation I would take off 2 year from the 4 years imprisonment as starting point, leaving 2 years.
    

Aggravating Factors

11. There are no grave aggravating factors in this case, except for the fact that the accused used the bamboo to hit the deceased. This is somewhat neutralized by the fact that the deceased himself used a piece of wood to attack the accused father. There is the fact that a human life has been lost and family has been deprived of a member. I would add 1 year, now making the sentence 3 years imprisonment.
    

Guilty Plea

12. This was a case in which the accused pleaded guilty on the first opportunity after the charge was reduced. The accused has cooperated with the Police in their investigation and has observed with care his bail terms while awaiting his trial. For this consideration, one-third of the sentence will be discounted. The final sentence is 2 years imprisonment.
    

Suspension or Not

13. Having passed sentence, I have also considered whether the sentence may be suspended or not. For the court to suspend the sentence of imprisonment it has determined as appropriate, there must exists exceptional circumstances in the case to motivate the court to do so: see DPP v Jotame Pita [1974] 20 FLR 5; State v Petero Maladroka [2006] HAC 003/2006S
    
14. The following exceptional circumstances exists in this case, sufficient to motivate me to suspend the sentence of imprisonment just passed:
    
    • the level of provocation that led the accused to hit the deceased over he head with a bamboo was high, especially in the circumstances where the deceased is assaulting the accused father with a piece of wood;
      
    • the fact that the deceased himself used a piece of wood to attack the accused father – he was armed and he was the aggressor;
      
    • the fact that traditional ceremonies of reconciliation was undertaken by the accused family with the involvement of their Chief and their desire to focus on the future;
      
    • The accused rehabilitation is important and the fact that he is a first offender at 25 years lends credence to the belief that would benefit from the opportunity afforded to him by the suspension of his sentence;
      
    • Accused has no previous convictions.
      
15. In the light of the above, I order that the sentence of 2 years imprisonment be suspended for 2 years.
    
16. Section 29 of the Penal Code Cap 17 was explained to the accused.
    
17. The court record its appreciation to both counsel for their assistance and written submissions.
    

Isikeli Mataitoga
JUDGE

At Suva
30 November 2007