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State v Tuvou [2009] FJHC 85; HAC031.2008 (12 March 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. HAC 031 of 2008

STATE

V

TOMASI NAITUTUVULI TUVOU

Counsel: Ms. V. Lidise for the State
Mr. A. Patel for the Accused

Date of Hearing: 11th March, 2009
Date of Sentence: 12th March, 2009

SENTENCE

1. The accused has been convicted for manslaughter by an unlawful omission.

Facts

2. The accused was employed at Matamanoa Island Resort in 2007. Amongst his duties was to act as boatman from time to time. As such he would transfer passengers and luggage to and from the island to a waiting catamaran. He did not have a license to operate a motor vessel.

3. Transfer boats taking passengers’ luggage to and from the island had to follow a defined channel which ran from the shore and extended to 50 meters out to sea. When approaching the island, the boats would need to travel parallel to the shore before entering the channel through the buoys and follow the same route when departing.

4. The deceased Rebecca Louise Crawley was on holiday with her husband. As part of their holiday they went to Matamanoa Island Resort. On 30th November 2007 the two had gone snorkelling and swimming in the ocean and were 10 to 15 meters from the shore.

5. On this day the head boatman was off duty so the accused was working as a relieving boatman. The accused loaded guests’ luggage into an aluminium boat for transfer to the catamaran. The boat had a 40 horse power engine.

6. The accused’s omission was that instead of going through the defined channel, he guided his boat 10 to 20 meters away from the shore and parallel to it and close to where the deceased and her husband were snorkelling. He knew from previous experience that the nose of the vessel would rise making it difficult to see in front without another person acting as spotter.

7. Just before where the deceased and her husband were snorkelling the accused bent down to remove the stopper to release water in the boat. He did not check ahead before he engaged himself in removing the stopper. The result was the propeller of the engine hit the deceased causing her extensive serious injuries from which she died.

8. The accused stopped the boat and was shocked to see what had happened. He jumped into the sea and assisted in carrying the deceased to the shore

Personal Characteristics

9. The accused has pleaded guilty. He is a first offender. He is 28 years of age and married. He is still employed by the resort as grounds-man so it does show that he is a reliable worker. He earns $125.00 per week. He has five siblings. He assists two of his brothers with their education by financing them. As such any custodial sentence which I impose would directly bring to a premature end to their studies as their parents are villagers in Yasawas.

Submissions

10. Mr. Patel with a great deal of eloquence impressed upon the Court that a custodial sentence is not warranted. He referred me to two authorities where deaths had resulted from boating accidents. In the first of these cases namely State v Apolosi Waqalaivi HAC 8 of 1995 the accused who was navigating his 40 horse-power boat at a high speed in zig zag manner collided with one of the persons swimming in the sea at the village beach. The victim died. There a sentence of two years was imposed suspended for a period of three years.

11. In the second case of State v Kulavere 1993 FJHC 34 the accused was travelling up stream in Vatuwaqa River when he collided with another boat travelling down-stream resulting in death of the person travelling downstream. There because the deceased was equally if not wholly at fault, the accused was conditionally discharged.

Range of Sentence

12. Manslaughter covers a wide spectrum of situations ranging in various degrees of culpability. The Fiji Court of Appeal in Sashi Kapoor Rayan v The State Criminal Appeal 28 of 2000 stated that sentences for manslaughter vary widely depending on the facts and circumstances of each case. Penalties range from suspended sentence to 12 years imprisonment.

13. I am of the view that in cases such as the present the consequences of the offending must not be given too much prominence that the nature of offending in lost sight of. It is important not to punish the accused for the results of his omission without considering the seriousness of his omission.

14. The accused has expressed remorse through his counsel and has sought forgiveness for his act from the members of the deceased family. The State Counsel told the court that both the husband of the deceased and the parents have forgiven the accused and asked the court not to impose a custodial sentence.

15. No doubt the trauma of having caused the death of a person who had just married and had a full life ahead of her would haunt the accused for the rest of his life. While compassion for the victim and her families and the fact that life has been lost are proper factors to consider nevertheless, I am of the view that the Court can extend compassion to a first offender with huge obligations to his family and involved as he was in an isolated and unforeseen accident the consequences of which he never contemplated nor intended and which he sincerely regrets.

16. The New Zealand Court of Appeal in R v Petersen (1994) 2 NZLR 533 has observed that at the end of the day what is required is an application of common sense judgment in which the sentencer must stand off and decide whether the imposition of a suspended sentence would respect the objectives of the legislation.

17. There are compelling mitigating circumstances here. There was minimal culpability. The accused immediately regretted his actions and went to the deceased’s aid. The depth of his remorse is obvious. There is little need for personal deterrence. He is a person of good character and good record. I believe he will positively respond to a suspended sentence.

Conclusion/Order

18. Accused is sentenced to one year imprisonment suspended for two years. If you commit any other offence within the period of two years, you will go to jail to serve this sentence of imprisonment.

[Jiten Singh]
Judge

At Lautoka
12th March 2009.