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Regina v Roni [2008] SBHC 85; HCSI-CRC 479 of 2006 (17 October 2008)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 479 of 2006

REGINA

V

WALTER RONI & EDILY HEI

High Court of Solomon Islands
(Naqiolevu, J)

Date of Hearing: 2 April, 26 September, 10 October 2008
Date of Sentence: 17 October 2008

For Crown: Ms. R. Olitymayin
For the Accused: Ms. G. Brown
Mr. T. Wallwork

SENTENCE

Naqiolevu J: The two accused were convicted of the offence of Abduction contrary to section 251 of the Penal Code. The second accused was convicted of the charge of Murder contrary to section 200 of the Penal Code.

DEFENCE SUBMISSION

1. Counsel for the first accused in mitigation submit the accused was not charged with the murder of the victim, but rather for abduction alone. The accused therefore stands in a starkly different sentencing position than the co-accused Edily Hei.

2. In this regard he ought to receive a significantly lesser sentence than Hei whose moral culpability is higher than the accused.

3. Counsel in relation to the circumstances of the accused, submit he is 28 years old, a part Malaitan and ordinarily resides in the West Coast of Guadalcanal Province.

4. The accused is the fifth born child of a family of seven. He was educated to grade 6 level, and after completing grade 6 traveled to Noro in the Western Province and was employed by Solomon Taiyo for about 3 years.

5. Counsel submit during the period of the ethnic tension, the accused lost his job and returned to his family and village.

6. Counsel submit at the time of the commission of the offence the accused was 24 years old and was a relatively young man from a simple village background.

7. Counsel contends the accused’s youth and lack of sophistication are relevant and that he has an excellent prospects of rehabilitation. Further being young, unsophisticated and anxious as to his safety during the ethnic tension, he was more easily led to participate in criminal activity.

8. Counsel further submit the court ought to take into account the significant period of delay and raised the principle entrenched in Common Law that delay operates to the prejudice of an accused person, and a relevant factor to take into account when fixing an appropriate sentence.

9. Counsel further submit the defendant is currently serving a sentence of five years imprisonment in relation to one count of abduction committed on the 27th of May 2003, and given the circumstance, place of offending, and the date the court ought to recognize the abduction as arising out of the same transaction, and on this basis any sentence of imprisonment be ordered to be served concurrently with the sentence he is undergoing.

10. Counsel further submit the court ought to take into consideration the totally principle so as to moderate the severity of the total effective sentence upon the defendant. That is the Common Law Principle requires a sentencing court to avoid a imposing "crushing sentence" upon a defendant ie. One that would operate only to punish the defendant, and in doing so remove any prospect of his rehabilitation.

CROWN’S SUBMISSION – Sentence

11. The court is grateful to the crown for it’s submission on an appropriate sentence to impose in the circumstance.

12. Counsel outlined the aggravating features of the case, which are, the accused was armed at the time, the victim was a defencless old woman, the injury suffered, the cruel and inhuman treatment meted out as a direct consequence of the abduction and the humiliation suffered when she was ordered to dance in full view of the crowd.

13. Counsel raised the tariffs for offences of Abduction and the range of sentence imposed in this jurisdiction and the authorities in support.

DEFENCE SUBMISSION – Hedley Hei

14. Counsel for the accused Hedley Hei submit the accused has been found guilty of Murder and subject to a sentence of Life Imprisonment, and clearly the sentence in the first count of Abduction will obviously have no effect.

15. Counsel ask the court to consider in the count of Abduction the accused be given a sentence without penalty.

CONCLUSIONS

16. The offence in which the accused are charged with is serious and indeed tragic. The innocent defenceless old woman prior to meeting her death was made to suffer such humiliation, it was not enough to have her killed but suffered such circumstances prior to her death.

17. The court has carefully considered the mitigating circumstances submitted by Counsel for the accused, and the authorities cited in support.

18. The court has taken into consideration the submission on sentence tendered by the Crown, and the range of sentence imposed by the courts in this jurisdiction.

WALTER RONI

19. The accused Walter Roni is a 28 year old man and was 24 years when he committed the offence and perhaps relatively young from a simple village background.

20. The court accept the accused was part of the group however no evidence that he is a member of the GLF. There is no evidence that he tied the victim to the tree and assaulted her, other then his ordering her to dance. His culpability is less than that of Hedily Hei, and the court must take that into consideration. See SI Court of Appeal([1])

21. The court has taken into consideration the rather long delay in the case coming before the court, some 3 years from time of arrest and charge laid.

22. The court having further considered the principle of concurrency and take into consideration the defendant is currently serving a term of imprisonment of 5 years.

23. The court consider the prospect of rehabilitation and as stated by counsel, he has been part of the ongoing process to rehabilitate and adjust his life for the better. "Successful rehabilitation constitute a community protection see "Ross Crime which refer to King CJ in Yardley –v- Betts ([2])

"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced" Underlining nine

24. The court is of the view that if the effect of a sentence will assist his rehabilitation back into the community, then the community will be the beneficiary of that process.

25. The court while taking into consideration the accused is not a young person within the provision in the Juvenile Act, he is relatively a young first offender from an unsophisticated background See. R-v-Takule ([3]) and R-v- Mills

26. The court consider that it must impose a sentence that will not have a crushing effect on the accused given he is currently serving a term of imprisonment of 5 years. In R-v-Yates ([4]) the four Judges said in a joint judgment "The word ‘crushing’ in this context connotes the destruction of any reasonable expectation of useful life after release".

27. The court consider that with real prospect of rehabilitation his possibility of pursuing a useful life after release is indeed promising.

The court in all circumstance order the accused be sentenced to 5 years imprisonment to be served concurrently to any sentence he is now serving.

HEDILY HEI

28. The court consider the second accused in the first court of Abduction has also been found guilty of the offence of Murder. The court having considered the initial submission by his counsel, and the crown, order further written submission counsel for the defence and the crown,

29. The court is of the view and agree with the crown that the offence of Abduction is a separate and distinct offence and it must impose a sentence to reflect this.

30. The accused culpability is clearly higher than that of Walter Roni. He took a very significant role in the incident he tied the victim to a tree, and kicked and punched her repeatedly. The victim suffered serious injury as a result.

Count 1 – 6 years imprisonment to be served concurrently to the mandatory sentence of life imprisonment in count 2.

ORDER

1. Count 1

First Accused: 6 years imprisonment to be served concurrently to the mandatory sentence of Life Imprisonment.

Second Accused: 5 years imprisonment to be served concurrently to any sentence he is now serving.

2. Count 2

Mandatory Life Imprisonment to commence from the date originally remanded in custody.

THE COURT

^[1] Walter Roni-v-The State Crim App.23 of 2007
^[2] Ross on Crime
^[3] [2008] SBHC, 17
^[4] (1985) UR, 41