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Itibita v Reginam [1975] GILawRp 2; [1977] GILR 122 (25 July 1975)

1977 GILR 122

FIJI COURT OF APPEAL

Criminal Appeal No. 13 of 1975

TEWAITE ITIBITA

v

REGINAM

Before: Gould V.P., Marsack and Henry J.J.A.

Suva 7^th and 25^th July 1975

Appeal to the Court of Appeal - murder - plea guilty to manslaughter - sentence - 10 years' imprisonment -provocation - sentence reduced to 5 years' imprisonment

The appellant was convicted on his own plea of guilty to manslaughter and sentenced to imprisonment for 10 years by the High Court (Bodilly C.J.) sitting at Bairiki on 3rd February 1975. The appellant, who was crippled from polio, walked with a distinct limp and was of slow mentality, was teased by many people over a period of tine. The deceased, Aritiera Toanuea was one of the appellant's worst tormentors and, on 30th August 1974, when he imitated the appellant's walk at Arorae the appellant stabbed him in the chest severing an artery and causing his death. The appellant appealed against the severity of the sentence in view of the circumstances and the serious provocation. The Attorney-General conceded that the sentence was excessive.

HELD: That the provocation on was indeed serious and a sentence of five years' imprisonment would be substituted for the ten years' imprisonment.

H.M. Patel for the Appellant
K. Ratnesser and R.S. Shankar for the Respondent.

MARSACK J.A.:-This is an appeal against a sentence of ten years' imprisonment for manslaughter imposed by the High Court for the Western Pacific at Bairiki on the 3rd February 1975.

2. The provocation relied upon by the appellant was mockery and tormenting by the deceased in respect of the appellant's physical infirmities: a permanently withered arm and a limping left leg. Although the learned trial Judge says that the accused was fortunate to have his plea of guilty to manslaughter accepted by the Crown, we are of the opinion on the evidence that the reduction of the charge was thoroughly justified. At the hearing of the appeal, counsel for the respondent informed this Court that he had instructions from the Attorney-General to concede that the sentence was in fact excessive. We accept this concession and agree that the provocation was indeed serious. For these reasons we quash the sentence of ten years, imprisonment and substitute one of five years' imprisonment to run from the same date as the sentence originally imposed.