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Kabua v Reginam [1976] GILawRp 1; [1977] GILR 128 (16 March 1976)

1977 GILR 128

FIJI COURT OF APPEAL

Criminal Appeal No 8 of 1976

KATATIA KABUA

v

REGINAM

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

Suva, 9^th and 16^th March 1976

Appeal to Court of Appeal - manslaughter - sentence of 8 years' imprisonment - provocation - sentence reduced to 6 years' imprisonment.

The appellant was charged with murder and pleaded guilty to manslaughter in the High Court at Bairiki on 6th November 1975 before Davis J. which plea was accepted and, on conviction, the appellant was sentenced to 8 years' imprisonment. The appellant appealed against sentence on the ground that 8 years' imprisonment was too severe in the circumstances that the appellant was 43 years of age, and the father of six children, had no previous convictions and had been attacked by the deceased and received provocation.

HELD: That, while it seems that the offence of manslaughter in the Gilbert Islands normally attracts a sentence of 5 years' imprisonment, sentences must inevitably vary according to the gravity of the particular offence and, in the present case, the sentence of 8 years' imprisonment was manifestly excessive, as it did not take fully into account the degree of provocation received and the fact that the appellant had a clean record and was not disposed to violence, and it would be reduced to 6 years' imprisonment to take effect from 6^th November 1975.

Authorities referred to:-

Toketeba Tabaeko v R.(Criminal Appeal No 31 of 1974, unreported)

Thomas, Principles of Sentencing, page 76

H.M. Patel for the Appellant
D.C. Adams for the Respondent

MARSACK J.A.:- This is an appeal against a sentence of 8 years' imprisonment for the offence of manslaughter imposed by the High Court of the Gilbert Islands sitting at Bairiki on the 6th November 1975.

2. The appellant was charged with murder and his plea of guilty of manslaughter was accepted by the Court.

3. The appellant gave an account of what had taken place at material times and this appears to have been accepted by the learned trial judge. In the course of his judgment the judge says:

"It appears from the accused's statement at the Preliminary Inquiry that the deceased struck the accused on the head while the latter was sitting outside the 'maneaba' watching the dancing. The blow knocked over the accused and the deceased struck him again while he was down.

The accused then kicked the deceased. The accused then rose and struggled with the deceased. He hit the deceased with his left fist and the deceased ran away through the 'maneaba'. The accused says that he was furious and chased the deceased who suddenly turned round and hit him again with his fist at which the accused stabbed him in the stomach causing the wound from which the deceased subsequently died".

4. It is clear that the knife which by the appellant was his tobacco knife which was carried by him as a matter of routine.

5. In passing judgment the learned trial judge said:

"I have taken into consideration that fact that the accused is an apparently respectable middle-aged man, with a family of 6. He has no previous convictions.

I also take into consideration the fact that the deceased appeared to have acted in a most tiresome and provocative way during the earlier part of the evening of the 26th March and that a certain amount of liquor had been consumed at the accused's house prior to his, the deceased's and witness Tebuke's going to the 'maneaba'."

6. In reviewing a sentence passed by a judge actually sitting in the Gilbert Islands, this Court is placed in a position of some difficulty. As was stated in our judgement in Toketeba Tabaeko v R. (appeal 31/1974):

"This Court is reluctant to interfere with sentences imposed by the Honourable Chief Justice in cases from the Gilbert and Ellice Islands where he is more familiar with local conditions and standards to be observed than the members of this Court."

Nonetheless this Court has on occasions reduced sentences passed in that Court when it has been felt that the sentence was heavier than the facts warranted. In the present case Crown Counsel conceded that the sentence of 8 years was excessive. This, of course, does not conclude the matter but it at least serves to confirm the opinion which we have formed.

7. This Court is in full agreement with what is said by Thomas in Principles of Sentencing at page 76:

"The Court appears to consider a sentence of imprisonment necessary in all cases of manslaughter under provocation, and a sentence of less than three years would be exceptional. At the other extreme, sentences in excess of ten years' imprisonment are rarely upheld. The factors which influence the Court in arriving at a figure between these limits are clearly the nature and extent of the provocation, the degree to which the offender was affected by it, and the readiness of the offender to resort to violence without provocation."

8. The Court cannot necessary [sic] apply, in the matter of sentences, the same standards in the Pacific Islands as are adopted in, for example, the United Kingdom. There is the further factor that sentences for similar offences in the same country should be reasonably consistent one with another. In several cases of manslaughter under provocation in the Gilbert Islands, the sentence has been fixed at 5 years' imprisonment; but while that may be used as a basis of comparison, sentences must inevitably vary according to the gravity of the particular offence.

9. In the present case we are of the opinion, that the sentence of 8 years' imprisonment is manifestly excessive in that it does not fully take into account the degree of provocation received, and the fact that the appellant has a clean record and is not disposed to violence.

10. In the result we are of the opinion that justice will be done if the appeal is allowed and the sentence reduced to 6 years' imprisonment and we order accordingly. This sentence to take effect from 6th November, 1975.