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State v Caucau [2015] FJHC 774; HAC226.2013S (15 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 226 OF 2013S

STATE

V

SELE CAUCAU

Counsels : Mr. Y. Prasad for State
Mr. J. Savou for Accused
Hearings : 25 and 26 May, 2015
Summing Up : 27 May, 2015
Judgment : 27 May, 2015
Sentence : 15 October, 2015

SENTENCE

1. In a judgment delivered on 27 May 2015, the court found you not guilty of murdering Maika Tuinakelo on 19 May 2013, at Naitasiri in the Central Division, but guilty of his manslaughter, on the same date. You were acquitted of the murder charge, and convicted of the manslaughter of the deceased.
   
2. The brief facts of the case were as follows. The accused and the deceased were in their 50's. Both resided in a village in Naitasiri. The accused owned 3 cows and a bull, and he kept the same in his farm. The deceased's farm was nearby. It was said that the accused left his 3 cows and bull unattended, and the same went to the deceased's farm and damaged his gardens. The deceased was not pleased, and he cut the accused's bull's back with a knife causing a 1 ½ inches length cut. The accused came to know of the incident, and was not happy with the injury caused to his bull. He met the deceased on 18 May 2013. He questioned the deceased on why he injured his bull. The deceased said the bull damaged his garden. The accused then repeatedly punched and kicked the deceased. The deceased suffered serious injuries as a result, and died two days later.
   
3. In State v Arthur James Kamoe Moore, Criminal Case No. HAC 114 of 2010S, High Court, Suva, I said the following, "..."Manslaughter" is a serious offence. It carries a maximum sentence of 25 years imprisonment. However, case laws in Fiji seemed to show that penalties for manslaughter range from a suspended prison sentence to 12 years imprisonment. Sentences in the upper range were reserved for cases where the degree of violence was high and the provocation given was minimal. Sentences at the lower end of the scale were reserved for case where the violence used was minimal and the provocation given was in the extreme; see Kim Nam Bae v The State, Fiji Court of Appeal, Criminal Appeal No. AAU0015 of 1998S; The State v Frances Bulewa Kean, Criminal Case No. HAC 037 of 2007S, High Court, Suva; State v Amali Rasalusalu, Criminal Case No. HAC 003 of 2003, High Court, Suva. The actual sentence passed will depend on the mitigating and aggravating factors..."
   
4. The aggravating factors, in this case, were as follows:
   
   • (i) The use of Extreme Violence to resolve a problem. The incident arose as a result of the parties inability to resolve the problem peacefully. In a village environment, unattended animals (ie. cows, horses, pigs, goats, etc). causing damages to other villagers' gardens is a common problem. However, the problem must be resolved peacefully with the matter been reported to police, or the damages been properly compensated. In this case, both parties used violence; the deceased by causing a 1 ½ inches injury to the accused's bull, while the accused severely assaulted the deceased that led to his death. However, the accused's violence towards the deceased was out of proportion to what the deceased caused his bull. For this, the accused will have to lose his liberty to pay for his crime.
     
   • (ii) As a result of your offending, Maika Tuinakelo had unnecessarily lost his life, and you have caused sadness and heart-ache to his family;
     
   • (iii) By offending against the deceased, you had shown no regard whatsoever to his right to life.
     
5. The mitigating factors, were as follows:
   
   • (i) At the age of 55 years, this is your first offence;
     
   • (ii) You have been remanded in custody for 1 week.
     
6. I start with a sentence of 5 years imprisonment. I add 2 years for the aggravating factors, making a total of 7 years imprisonment. I deduct 1 week for time already served, while remanded in custody, leaving a balance of 6 years 51 weeks. I deduct 1 year 51 weeks for being a first offender, leaving a balance of 5 years imprisonment.
   
7. Mr. Sele Caucau, for the manslaughter of Maika Tuinakelo on 19 May 2013, at Nasoqo Village, Naitasiri in the Central Division, I sentence you to 5 years imprisonment, with a non-parole period of 4 years imprisonment, effective forthwith.
   

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : Legal Aid Commission, Suva.