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State v Lewanavanua [2011] FJHC 233; HAC078.2009 (27 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

High Court Criminal Case No. : HAC 078 OF 2009

BETWEEN:

STATE
PROSECUTION

AND:

VILIAME WAME LEWANAVANUA
ACCUSED

Counsel: For State - Mr Katia, D.
For Accused - In Person

Date of Sentence: 27th April, 2011.

SENTENCE

Viliame Lewanavanua you were convicted for the offence of manslaughter on your own plea of guilty. The court was satisfied that your plea of guilty was unequivocal.

The brief facts of the case which was admitted by you were, on 27th June 2009 both you and the victim Taniela Delaisavui were drunk and you went up to the victim and started a conversation which developed to an argument. Then you punched the victim resulting in the victim falling on to the cement pavement landing on back of his head. Sitiveni Rakaria a security officer who was there came and restrained you from punching the victim.

The victim was admitted to CWM Hospital Intensive Care Unit, and later transferred to the plastic ward.

On 8th July 2009, the victim was discharged from the hospital and he was staying with a relative at Vatuwaqa.

Thereafter on 15th July 2009 the victim died. Post mortem was conducted and it was confirmed that the victim died from Right frontal lobe cerebral haemorrhage.

The tariff for manslaughter is between a suspended sentence to 12 years imprisonment.

Sentences in the upper range are imposed where the degree of violence is high and any provocation minimal. Sentences at the lower end of the scale are imposed where violence used is minimal and that there is extreme provocation (Rauve v The State Criminal Appeal No. 13 of 1990, Devi v The State High Court Criminal Action No.1 of 2001).

Sentencing principles in manslaughter cases were well discussed in case of The State v Francis Bulewa Kean (Criminal Case No. HAC. 037 of 2007).

In this case the aggravating factors are that the deceased is 65 years old and that the deceased was drunk when you assaulted him. In mitigation you submitted to court, you seek forgiveness, and that you did not mean to do this, which shows that you are remorseful. You were about to get a new job and to start a family. You take care of your sisters daughters as their father is in prison. You said that you now have changed and committed to church activities.

I consider that both you and the victim were drunk and the argument between you and the victim resulted your giving him a punch.

Considering the circumstances of this case mentioned above I take 3 years imprisonment as the starting point. For the aggravating factors I add 1 year making it 4 years imprisonment.

For the mitigating factors mentioned above including that you are a first offender I deduct 2 years making a total of 2 years imprisonment.

For your early guilty plea I give you a further discount of 6 months making the final total of 18 months imprisonment.

I will now consider whether this is a case for a suspended sentence.
Part VI of the Sentencing and Penalties Decree provides provision for suspending sentences if the court is satisfied that it is appropriate to do so.

"Suspended sentences for manslaughter are rare because the courts accept the sanctity of human life. They are only imposed when the assault of minor, there was a guilty plea, or there was gross negligence rather than willful assault, and where parties are related. They are also imposed where there was grievous provocation offered by the deceased (State v Jeffery Veibataki Vulikivavalagi Colata Criminal Case No. HAC 30 of 2007).

In this case accused pleaded guilty to the charge. Both the victim and the accused had been drunk and the punch was given after an argument between the accused and the victim. Unlike in the case of State v Francis Bulewa Kean, in this case accused had punched the victim only once which resulted the fall of the victim. Therefore minimum violence was used. Accused is a first offender. There had been no pre-meditation in committing the offence.
I find that the offender is likely to respond to a suspended sentence. Considering the above I suspend the term of imprisonment of 18 months to 3 years.

Therefore your final sentence is 18 months imprisonment suspended for 3 years.

You have 30 days to appeal.

Priyantha Fernando
JUDGE

At Suva
27th April, 2011.