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State v Saumaibulu [2010] FJHC 449; HAC010.2010 (8 October 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC NO 10 OF 2010

BETWEEN:

THE STATE
THE COMPLAINANT

AND

SALADOKA SAUMAIBULU
ACCUSED

Date of Trial : 4 October 2010
Date of Ruling: 8 October 2010

Mr M. Korovou for the State.
Mr K. Tunidau for the Accused.

RULING ON SENTENCE

1. You - Saladoka Saumaibulu - were convicted of 'manslaughter' upon your plea of guilt. Plea of guilt was tendered on 04.10.2010 as the case stood listed for trial from that day.
   
2. Summary of facts, as submitted by the prosecution and agreed to by you, revealed that the death of the deceased -Charlie Dunn- occurred on 31.01.2010 while undergoing medical treatment at Colonial War Memorial Hospital (CWM) in Suva after receipt of injuries at a brawl with you on 12.01.2010. The brawl was the culmination of your binge-drinking on that day from about 3.00 p.m. until midnight.
   
3. A close examination of facts further revealed that:
   
   • (i) You were drinking from about 3.00 p.m. on 12.01.2010 with a friend at place-X as the deceased and a friend of his joined you;
     
   • (ii) You, the deceased and friends left for club-Y around 10.00 p.m. to continue with drinking;
     
   • (iii) You left club-Y and bought a 'roti' parcel outside. As you were eating 'roti', the deceased had approached you, held by collar of the shirt and questioned where the drink was; and,
     
   • (iv) The deceased also had asked for money to buy more beer for him and for the bottle of Rum inside your bag.
     
4. The deceased had, in the process, punched you. You, in turn, had retaliated with a punch at receipt of which the deceased had fallen on the concrete pavement hitting his head. You, thereupon, had furthered your attack, stomped on the deceased and kicked him on the face and the head. The deceased, upon receipt of blows, started bleeding.
   
5. The deceased, who lost consciousness, had been taken to the hospital in Lautoka from where he was transferred to CWM on 15.01.2010. The deceased since then had been under continuous treatment for very serious head injuries, which included sub-arachnoid and intra-cerebral haemorrhages and contusion in the cerebrum.
   
6. The Post-Mortem Report showed that the cause of death, being the 'disease or the condition directly leading to death', was 'bilateral bronchopneumonia', which appeared to have developed as the deceased was stabilizing himself in the process of recovering the serious head injuries.
   
7. You, through your counsel, caused the filing of written-submissions in order to mitigate the sentence that this court was contemplating to impose on you. The submissions, with which the learned counsel for the State concurred, were helpful both in relation to matters of fact and of law.
   
8. I note that your counsel, quite properly, did not seek to rely on the principle of 'novus actus interveniens', in spite of the supervening medical condition of 'bilateral bronchopneumonia' that was set in the deceased during the healing process of his head injuries. Instead, you accepted that the death was directly linked to your act of assault on 12.01.2010. I agree with this approach to the case in light of the facts set-out above.
   
9. It is in this context that I now proceed to consider the sentence that befits you, bearing indeed in mind, the sentencing guidelines as contained in Part II of the Sentencing and Penalties Decree No 42 of 2009 (the Decree) and particularly the provisions of Section 15 (3) of the Decree, which requires court not to impose a more serious sentence than necessary.
   
10. Manslaughter, which is punishable under Section 198 of the Penal Code as charged, is a felony that attracts the maximum punishment of life imprisonment. In Kim Nam Bae v The State [Criminal Appeal FJCA 21; 26.02.1999], it was held that the sentence for the offence of manslaughter could, however, range from a suspended sentence to 12 years of imprisonment depending on facts and circumstances of each case. This range of sentence, in my view, seems to be in order notwithstanding the maximum punishment being lowered to 25 years of imprisonment under the Crimes Decree No 44 of 2009, which is currently in force.
    
11. The term of imprisonment, as applicable, could be considered for suspension in cases where there is evidence of provocation at the hands of a victim giving rise to the offensive act by an offender. A factor that needs be considered in that respect is that the recipient of provocation should not have reacted in a manner more than necessary to quell the provocation offered by the victim.
    
12. It is important to note that facts of this case do not permit court to fault you for initiating the brawl. Conversely, it appears, according to the contents of the cautioned-interview, that you had in fact left club-Y with a view to avoiding an incident with the deceased that foreshadowed due to his offensive behaviour. However, his pursuit made you caught-up in the brawl and rendered your timely withdrawal from the club of no use. Ironically, pursuit by the deceased resulted in his own downfall.
    
13. Court, therefore, notes that your conduct was free from blameworthiness as you retaliated with a punch upon receipt of provocation and the assault at the hands of the deceased. This conduct could and should, in my view, have made you entitled to a complete exoneration on the basis of right of self-defence. Nonetheless, the fact that you unleashed attacks on the deceased when he lay fallen on the ground after your first punch, which precipitated head injuries culminating in death of the deceased, founded a case against you.
    
14. It is, therefore, your follow-up conduct that made you criminally liable for the offence of manslaughter; and, court, however, cannot take it as an aggravating factor as such blameworthy conduct itself was the only possible basis of the offence upon which you stood charged.
    
15. Cases of manslaughter arising out of drunken brawl sets the term of imprisonment in the region of 18 months-2 ½ years having regard to:
    
    • (i) the conduct causing death;
      
    • (ii) the public concern and the need for deterrence;
      
    • (iii) whether the offender had intended any violence; and,
      
    • (iv) if violence had been intended, the risk involved of serious harm and the extent to which it must have been apparent to those involved. (State v Kuliniasiasi[2004]FJHC124;HAC 08/2004;26.07.2004)
      
16. This court, in the circumstances, is of opinion that a term of two (2) year imprisonment is an appropriate starting point. Court, however, does not find aggravating circumstances to increase that term of imprisonment and accordingly proceeds to consider mitigating circumstances as follows.
    

(i) You were a first offender and you had no previous convictions. Your wrongful conduct had not involved the use of any weapon of offence.

(ii) You pleaded guilty on the first available opportunity after being fully informed of the charge and nature of evidence.

(iii) You were remorseful and repenting over the act and had, in fact, apologised to the relatives of the deceased.

(v) You were 33 years old, married and having two small children who are in their formative ages.

(vi) You were the sole breadwinner of the family.

(vii) You have been on remand for about eight months.

17. I reduce one year for the early guilty plea and reach at a period of one (1) year imprisonment. I further reduce a period of three months for your remorseful conduct, for the past record free from convictions and for your family background. Another period of three months is reduced against your detention on remand nearly for eight months. In the result, I arrive at a term of six (6) month imprisonment.
    
18. I have considered the possibility of suspending the sentence; but, decided otherwise having regard to the fact that your wrongful conduct had resulted in loss of human life, which could have been averted had some self-restraint been employed before attacking a fallen man. (State v Colata [2008] FJHC 86; HAC 30/2007;29.07.2007). Your failure to think rationally on the above lines, perhaps due to your level of intoxication, cannot accrue to your benefit because voluntary intoxication makes no avenue for such a course of action under law.
    
19. Moreover, the sentence should reflect a deterrent effect if the society were to be free from this kind of excesses. (State v Kuliniasiasi; supra)
    
20. You are accordingly sentenced to six-month imprisonment. You may appeal to the Court of Appeal within 30 days.
    

PRIYANTHA NAWANA
JUDGE

At Lautoka
8 October 2010