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State v Naimoso [2018] FJHC 345; HAC095.2016 (27 April 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 95 of 2016

STATE

V

ALIPATE NAIMOSO

SAIMONE TUCILA SNR

EPELI TUCILA

SAIMONE TUCILA JNR

Counsel : Mr. Meli Vosawale with Ms. Moira Konrote for the State
Ms. Shantel Hazelman for the 1^st Accused
Ms. Vani Filipe for the 2^nd Accused
Ms. Talei Kean for the 3^rd Accused
Ms. Namrata Mishra for the 4^th Accused

Dates of Trial : 5-9, 12-16, 19-23, 26-29 March and 3-6, 9 and 11 April 2018
Summing Up : 17 April 2018
Judgment : 19 April 2018
Sentence : 27 April 2018

SENTENCE

[1] Alipate Naimoso, Saimone Tucila Snr, Epeli Tucila and Saimone Tucila Jnr; the four of you were charged with the following offence:

COUNT ONE

Statement of Offence

MURDER : Contrary to Section 237 of the Crimes Act No. 44 of 2009.

Particulars of the Offence

ALIPATE NAIMOSO, SAIMONE TUCILA SNR, EPELI TUCILA, SAIMONE TUCILA JNR on the 17^th day of February 2016 at Nasinu, in the Central Division, murdered SITIVENI JAMIE QALI.

[2] The four of you pleaded not guilty to the above mentioned charge and the ensuing trial was held over 25 days.

[3] At the conclusion of the evidence and after the directions given in the summing up, the three Assessors unanimously found you not guilty of the charge of Murder. However, by a unanimous decision, the three Assessors found the four of you guilty of the alternative charge of Manslaughter.

[4] Having reviewed the evidence, this Court decided to accept the unanimous opinion of the Assessors in respect of Saimone Tucila Snr (2^nd Accused), Epeli Tucila (3^rd Accused) and Saimone Tucila Jnr (4^th Accused) and found you guilty for Manslaughter, in terms of Section 239 of the Crimes Act No. 44 of 2009 (Crimes Act). Alipate Naimoso (1^st Accused) you were found guilty for Assault Causing Actual Bodily Harm, in terms of Section 275 of the Crimes Act. You were convicted accordingly.

[5] The case for the prosecution was that the four of you assaulted the deceased and thereby caused his death. The prosecution case was that the offence was committed jointly by the four of you in prosecution of a common purpose.

[6] In this case the prosecution is relying on eye witness evidence, police evidence and medical evidence. The prosecution is also relying on the CCTV footage taken from the scene of the incident. Each of you gave evidence in support of your case.

[7] The prosecution also tendered to Court Exhibits which were marked as PE 1, PE 2A, PE 2B, PE 3A, PE 3B, PE 5A, PE 5B, PE 6A, PE 6B, PE 6C, PE 6D, PE 7A, PE 7B, PE 8, PE 9 and PE 10.

[8] Dr. James Kalougivaki, conducted the post mortem examination on the deceased and issued the Post Mortem Report. The Post Mortem Report was tendered to Court as Prosecution Exhibit PE8. The Doctor explained in detail the external and internal injuries suffered by the deceased.

[9] In his opinion Dr. Kalougivaki concluded that the cause of death was due to:

(a) Severe Traumatic Brain Injury and Extensive Sub-arachnoid Haemorrhage;
(b) Severe Traumatic Head Injury;
(c) Multiple Traumatic Injuries;
(d) Blunt Force Trauma;
(e) History of Assault.

[10] Saimone Tucila Snr (2^nd Accused), Epeli Tucila (3^rd Accused) and Saimone Tucila Jnr (4^th Accused), I will first deal with the sentence to be imposed on the three of you.

[11] Section 4 of the Sentencing and Penalties Act No. 42 of 2009 (Sentencing and Penalties Act) stipulates the factors that a Court should take into account during the sentencing process. Section 4 (1) and 4 (2) of the Sentencing and Penalties Act is reproduced below.

“4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

(2) In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender’s previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.”

[12] According to Section 239 of the Crimes Act the maximum penalty for the offence of Manslaughter is an imprisonment for 25 years. The offence of Manslaughter involves the loss of a human life. As a result of your conduct you have taken away the life of another human being. Though the degree of culpability of Manslaughter is lesser in comparison to Murder, still the offence of Manslaughter involves the death of another human being. Causing another person's death for whatever reason or under whatever circumstances is indeed a serious offence.

[13] The deceased was only 21 years of age at the time of death. His mother Dorotea Davele testified in Court that the deceased was her “heart”.

[14] In the case of Kim Nam Bae v. The State [1999] FJCA 21; AAU 0015 of 1998S (26 February 1999), the Fiji Court of Appeal held as follows;

"The cases demonstrate that the penalty imposed for manslaughter ranges a suspended sent sentwhere there may have been geen grave provocation to 12 years imprisonment where the degree of violence is high and provocation is min It iortant to bear in mind that this range covers a vs a very wery wide set of varying circumstances which attract different sentences in different manslaugh160;cases. Eac. Each case will attract the appropriate sentence within the range depending on its own facts."

[15] It can be noted from the above case, that the Court of Appeal had observed that the penalty imposed for Manslaughter ranges from a suspended sentence to 12 years for different Manslaughter cases. Thus, the case of Kim Nam Bae (supra) seems to be only making an observation on the range of sentences which were pronounced by the courts in Manslaughter cases, rather than establishing a tariff for the offence.

[16] In the case of State v. Dumukoro [2016] FJHC 199 (23 March 2016), His Lordship Justice Vincent S. Perera having considered and analysed 21 sentencing decisions in Manslaughter cases stated “From the above decisions I have perused, it is evident that this court has been inclined towards selecting a starting sentence of 5 years imprisonment or above for the offence of Manslaughter. In majority of the cases, the court has taken 5 years as the starting point.”

[17] Accordingly, Justice Perera held “......since this court has been more favourable towards selecting 5 years as the starting point, I am inclined to form the view that the tariff for the offence of Manslaughter under Section 239 of the Crimes Decree (Act) should be 5 years to 12 years imprisonment.”

[18] I am inclined to agree with the above tariff of 5 years to 12 years imprisonment proposed by Justice Perera for the offence of Manslaughter. In State v. Seniceva [2017] FJHC 479; HAC 26 of 2016 (26 June 2017), I followed the same tariff.

[19] In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v State (Criminal Appeal AAU 0018 of 2010) has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[20] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentence at 5 years imprisonment for the offence of Manslaughter.

[21] The aggravating factors are as follows:

(i) Taking away the life of another human.

(ii) The offence was committed by three of you, where the deceased was overpowered.

(iii) The use of extreme force on the deceased, which is confirmed by the serious injuries sustained by him.

(iv) There was minimal provocation involved at the time you caused the assault on the deceased.

[22] Accordingly, I add a further 3 years imprisonment to your sentence for aggravating circumstances. Your sentence is now 8 years imprisonment.

[23] In mitigation Saimone Tucila Snr, you have submitted that you are 55 years of age and that you are married with 10 children. You have been married since 1986. Two of your children are said to be less than 18 years of age, who are still under your care. You are working as a farmer, and the crops and vegetables you plant feeds your family.

[24] You are said to be involved in community work. You are the President of the Rugby League in the community of Nakasi. This rugby league consists of young youth who are unemployed and is for the purpose of deterring them from criminal activities.

[25] It is the opinion of this Court that these are personal circumstances and cannot be considered as mitigating circumstances.

[26] Epeli Tucila, you have submitted that you are 29 years of age, married with 2 children aged, 7 years and 9 months respectively. You are the sole breadwinner of your family. You have been working on a ship earning $700 - $800 per month. You have completed various courses of study, in proof of which you have tendered the relevant certificates to Court. It is the opinion of this Court that these are personal circumstances and cannot be considered as mitigating circumstances.

[27] Saimone Tucila Jnr, you have submitted that you are 23 years of age, married with 2 children (twins), aged 1 year and 2 months. You have been working on a ship earning $700 - $800 per month. You have completed various courses of study, in proof of which you have tendered the relevant certificates to Court. It is the opinion of this Court that these are personal circumstances and cannot be considered as mitigating circumstances.

[28] The State has confirmed that Epeli Tucila and Saimone Tucila Jnr have no previous convictions. As for you Saimone Tucila Snr, there is one previous conviction against your name for the offence of Assault Causing Actual Bodily Harm, for which you were sentenced to 6 months imprisonment suspended for 12 months, by the Magistrate’s Court of Nasinu, on 27 January 2011.

[29] Epeli Tucila and Saimone Tucila Jnr considering your previous good character I deduct 2 years each from your sentences. Your sentences would now be 6 years imprisonment.

[30] As for you Saimone Tucila Snr, I am not in a position to offer you any concession in this regard, due to the active previous conviction recorded against you. Therefore, your sentence would remain at 8 years imprisonment.

[31] Accordingly, I sentence you Saimone Tucila Snr to a term of 8 years imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I order that you are not eligible to be released on parole until you serve 5 years of that sentence.

[32] Epeli Tucila and Saimone Tucila Jnr, I sentence you to 6 years imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I order that each of you are not eligible to be released on parole until you serve 4 years of that sentence.

[33] Alipate Naimoso (1^st Accused), I will now deal with your sentence.

[34] In terms of Section 275 of the Crimes Act “A person commits a summary offence if he or she commits an Assault Causing Actual Bodily Harm.” The prescribed penalty for this offence is a term of imprisonment for 5 years.

[35] In State v. Tugalala [2008] FJHC 78; HAC 25S of 2008S (29 April 2008); Her Ladyship Madam Justice N. Shameem said:

"The tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. The High Court said in Elizabeth Joseph v. The State /04S and State v. Tevita Alafi [2004] HAA073/04S, that it is the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has been a deliberate at, causing hospitalization tion and with no reconciliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months imprisonment have been upheld (Amasai Korovata v. The State [2006] HAA 115/06S).”