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State v Verma [2008] FJHC 127; HAC042S.2007S (24 June 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 042 of 2007

STATE

v.

SALESH KUMAR VERMA

Hearing: 17th June – 23rd June 2008
Sentence: 24th June 2008

Counsel: Mr. P. Bulamainaivalu for State
Mr. D. Prasad for Accused

SENTENCE

Salesh Kumar, you have been found guilty of manslaughter by gross negligence and convicted. On the 17th of February 2005, the deceased, who was drunk, stood in the middle of the road outside Village 6 cinema, and banged on your windscreen. Instead of stopping your vehicle and getting help, you drove off with the deceased hanging on to the front of your vehicle until he fell off outside the Handicraft Centre. The deceased died of septicemia and bronco-pneumonia two months later as a result of the head injuries he received.

There is much in this case in your favour. I accept that you were afraid when the deceased behaved in this way and that you panicked. I accept that you drove straight to the Central Police Station to report the matter. I accept that you checked on the welfare of the deceased, and gave a frank account of the incident to the police. I also accept that this incident has been hanging over your head for two years. You are a first offender, married with two infant children and a keen member of the Assemblies of God church. These are all matters in your favour. You are additionally a self-employed 28 year old man with your own business of aluminium joinery.

However, the deceased died because you were grossly negligent with his welfare. Drunk people do not always act rationally and you failed to act in a way which a prudent and reasonable driver would have acted. Further, his was a slow death with the head injuries leading to surgery and complications. Clearly your conduct calls for criminal sanction.

In State v. Ashwin Kumar HAC 037 of 2007 Mataitoga J reviewed sentencing tariffs for manslaughter with gross negligence. In that case, the accused drove a bicycle with defective brakes and hit the deceased causing death. He sentenced the accused to 16 months imprisonment, suspended for 2 years.

In the course of his sentencing remarks he referred to the following cases of manslaughter by gross negligence:

"A review of the relevant case law in the High Court of Fiji, with regard to sentences in manslaughter by gross negligence reveals the following:

1. In State v. Metuisela Toka HAC 008/2003 – the High Court sentenced the accused to 9 months imprisonment. This was a case where the father of an 11 year old child threw a spear at her in the early hours of the morning believing her to be a pig.
   
2. In State v. Sitiveni Rokaria HAC 017/2003 – the High Court sentenced the accused to 12 months imprisonment suspended for 2 years. The accused was the driver of a boat taking some family friends from overseas, who wanted to go to an offshore island for a picnic. The boat was licenced to carry 10 passengers and the accused told the passengers that he can only take 10 but his father overruled him and he took 14 passengers instead. The boat capsized and two passengers died from drowning. Accused was charged with 2 counts of manslaughter by gross negligence.
   

100. In State v. Apolosi Waqalaivi HAC 08/1995S – The High Court sentenced the accused to 2 years imprisonment suspended for 3 years. This was a case involving the death of an 8 year old child due to the gross negligence of a boat driver who drove his boat close to where some children were swimming. The accused did not see the deceased and ran over the child causing him to die.
     

4. In State v. Josaia Boseiwaqa & Anor HAC 032/07 – The High Court sentenced the two accused persons to 2 years imprisonment suspended for 3 years. This case involved the death by drowning of 2 persons who were passengers on boat travelling from Deuba to Beqa island. The boat was overloaded with passengers and the two accused person persons were the drivers of the boat. They were not paid for their work."
   

He found that the tariff for the offence was 2 to 3 years imprisonment but that the majority of the cases resulted in suspended sentences. In suspending the sentence in the case before him, he relied on the lack of any premeditation, the fact that the accused conveyed the deceased to the hospital, the accused’s previous good character, youth and co-operation with the police.

In this case, I do not consider that a suspended sentence is the appropriate sentence. I accept your real remorse and fear at the time of the accident, and although your fear does not justify your lack of reasonable care, but it is a mitigating factor. I consider that I should order a community-based sentence for you rather than a suspended sentence, because it requires more work from you to pay what I consider to be your debt to society for taking the life of the deceased. I consider that your sentence should be supervised by the Pastor of your church, who must report to the court of your satisfactory service of your sentence after half of it has been served, then on completion.

I order that you serve 200 hours of community work under the supervision of your Assemblies of God Pastor. You must serve this time within 6 months of this sentence.

Nazhat Shameem
JUDGE

At Suva
24th June 2008