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Regina v Baomate [2012] SBHC 112; HCSI-CRC 227 of 2010 (30 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 227 of 2010

R v WALTER BAOMATE

Date of Hearing: Thursday, 23rdAugust 2012
Date of Sentence: Thursday, 30thAugust 2012

Mr Talasasa (DPP) for the Prosecution/Crown
Mr Fugui (PSO) for the Defendant

SENTENCE
PALLARAS J.

[1] On the 23rd August 2012, the Director of Public Prosecutions filed a NolleProsequi in respect of an Information alleging one count of murder against Walter Baomate (the prisoner) who was at the time of the offence 32 years old. The Director then filed an Information alleging one count of manslaughter against the prisoner who then pleaded guilty to the substituted Information.

[2] On the 4th April, 2010, at Veravaolu Village, Marasa at the Weathercoast, Guadalcanal, the deceased Mr Patterson Niunovo, was killed when he was struck on the head by a rock wielded by the prisoner.

[3] Earlier that evening the prisoner had asked the deceased, who had been drinking with others, for some of his home brewed drink. The deceased refused. The prisoner then assaulted the deceased by punching him in the mouth causing him to fall to the ground. The prisoner then walked away and sat with some others at a house in the village.

[4] Soon afterwards, the deceased arrived at the house with several companions. They called for the prisoner to come out of the house, which he did. A fight broke out between the prisoner, the deceased and two others.

[5] The deceased and the prisoner continued to fight with each other with the deceased kicking the prisoner in his private parts during the fight. After having fallen to the ground at some stage during the fight, the deceased was able to, and did, begin to walk away. He was pursued by the prisoner who picked up a rock and struck the deceased to the head. The deceased died from the injuries received as a result of this blow to the head.

[6] An autopsy conducted on the deceased on 8th April, 2010, disclosed the cause of death as a right subdural haemorrhage caused by a trauma to the head with a blunt instrument. The deceased died on 7th April, 2010, three days after being assaulted. He was 25 years old.

[7] With the benefit of hindsight and with the obvious influence that alcohol has played in these tragic events, it seems almost inevitable that the behaviour of both the prisoner and the deceased was destined to lead to an unwanted outcome. The initial aggression of the prisoner no doubt prompted the equally aggressive response by the deceased and his companions.

[8] Although on the facts before me the fight between the two men seemed to have reached something of a lull when the deceased was walking away, the elevated level of aggression and violence then shown by the prisoner in pursuing the deceased and striking him forcefully with a rock, was merely the last act in a series of violent acts by both men. It is no less reprehensible nor is the result any less tragic because of it.

[9] In assessing the criminality involved and in reaching an appropriate sentence, I have considered the many cases referred to by both counsel in their submissions to me. The crime of manslaughter is particularly productive of a wide range of sentences depending of course on the factual matrix of each case and the balancing of both mitigating and aggravating features that may subsist in the particular case.

[10] Submissions made before me by both counsel do not reveal a significant difference in the range of sentences suggested as being appropriate in this case. The Crown submits that an appropriate starting point is 5-6 years, while the defence submit that an appropriate range is between 4-7 years.

[11] I note the Director's submission that in recent years sentencing trends for manslaughter have been on the increase and from a reading of the numerous cases referred to me by both counsel, I would agree with that submission as a general observation. Cases at the end of the 20th century were most commonly to be found to sentence in the range of 2-5 years, while many more cases in the first decade and beyond of this century, involve sentences greater than 5 years.

[12] Whatever view is taken of the appropriate range of sentencing options available to the Court, the essential criminality of the offence remains the same – a human life has been taken and lost. Whatever else is considered, that fact remains the core of the offence and must be reflected in the sentence imposed.

[13] The sanctity of human life has been reflected in the view taken by the legislature in providing for a sentence of life imprisonment for those who commit the offence. It remains an oddity that given the seriousness of the offence that the sentencing ranges cited by both counsel have remained so low for so long. This is not to say that once the mix of aggravating and mitigating factors is taken into account, that the sentences referred to are inappropriate for the time when they were imposed.

[14] But the sentencing process is a living organism – it grows, develops and adapts to community needs and expectations. It may well be that in current times it is opportune for courts to re-assess whether the relatively low sentencing ranges referred to adequately reflect both the attitude of the legislature and the needs of the community.

[15] However, from a consideration of the authorities cited and after taking into account the submissions of counsel, I consider that an appropriate starting point in this case is 6 ½ years.

Aggravating Factors:

[16] There is no evidence before me in the Agreed Facts as to what role, if any, the consumption of alcohol by the prisoner played in these events. While the whole tenor of the events suggest that the fighting and the subsequent killing occurred in a context of drinking by all involved, the only material before me in the Agreed Facts relates to the drinking by the deceased.

[17] However in sentencing submissions from the defence, it is submitted that the prisoner is genuinely remorseful for causing the death of the deceased and that he himself attributes his actions to his drunkenness on the day of the incident. I accept therefore that the prisoner had been drinking heavily on the day of the incident and that this played some part in his actions which led to the death of the deceased.

[18] I also find, as is agreed, that it was the prisoner who initiated the violence by punching the deceased with such force as to loosen three of his teeth. The deceased's conduct thereafter can in some senses be seen as retaliation for this initial assault. Even after the two had their second episode of fighting each other, it was the prisoner who did not let it end there but rather pursued the deceased and struck him the blow which caused his death.

[19] So while there was violent and aggressive behaviour on both sides, I find the prisoner to be the principle aggressor and that he persisted in violent conduct when no longer under attack by the deceased or his companions.

[20] The use of a weapon, in this case a rock, was calculated to inflict serious injury to the deceased. He attacked the deceased with the rock when the deceased was walking away and no longer represented any danger to him. I find the use of the weapon to be an aggravating feature of the prisoner's conduct.

Mitigating Factors:

[21] Apart from these features of aggravation, there are also significant features of mitigation.

[22] First, the prisoner has pleaded guilty at the earliest opportunity. While the reason that this resolution could not have been achieved far earlier in the prosecutorial process is not at all clear to me, once the amended Information was filed by the Director of Public Prosecutions, the prisoner entered a plea of guilty to it. He is to be given credit for his early plea.

[23] Secondly, I am satisfied that the plea not only has utility in terms of both the expenditure of public money and convenience to witnesses, but that it has been entered as a sign of genuine remorse for causing the death of the deceased. I am told and accept that the prisoner and the deceased were distantly related and that the prisoner regrets the loss he has caused to the immediate family.

[24] Thirdly, I accept that there are good prospects for rehabilitation. He is a man of previous good character with no prior convictions. Written references attest to his prior good character and no reason has been suggested as to why these should not be accepted. He has been a hard worker most of his life helping his parents with their gardens and commercial crops and later as a subsistence farmer supporting his family of a wife and three children. I have also been told that he has offered himself as a "Community Support Teacher" since 2002 until the date of his arrest for this incident. He has also actively involved himself in other community and church work.

[25] The tragedy of events such as these, frequently involving the abuse of alcohol, is seen on a regular basis in these Courts. There is the tragedy of a young man losing his life in a senseless, pointless expression of drunken bravado. No doubt his immediate family and friends will grieve for many years over his loss.

[26] There is the impact on the family of the prisoner. He is a husband and a father to three young children who will no doubt struggle even more in the enforced absence of the prisoner. An absence brought upon himself by his thoughtless, criminal and above all selfish conduct.

[27] Then there is the waste of a substantial period of the prisoner's life, a man of no prior convictions, of previous good character and on all accounts a hitherto law abiding and valuable member of his community.

[28] But despite all of these considerations one always comes back to the fact that a life has been taken. A sentence of imprisonment in the circumstances of this case is inevitable.

SENTENCE:

[29] Balancing all of the aggravating and mitigating features mentioned, in my view an appropriate sentence is 4 years imprisonment. The time spent in custody since 10th April 2010 until 21st December 2011 is to be taken into account.

[30] It is the Order of this Court that the prisoner be sentenced to imprisonment for 4 years.

THE COURT