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Regina v Sutafanabo [2012] SBHC 48; HCSI-CRC 247of 2010, 467of 2010 & 171 of 2011 (23 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Criminal Case No. 247/2010, 467/2010 and 171/2011.

REGINA

-V-

PETER SUTAFANABO and WILLIE MAELONGA.

Date of Submission: 18th May, 2012.
Date of Sentence: 23rd May, 2012.

Mr. H. Kausimae for the Crown.
Mr. W. Ghemu for Sutafanabo .
Mr. S. Aupai for Maelonga .

SENTENCE.

Faukona J: Initially both accused and Accused Taealamo Maelonga were jointly tried on the Information of one count of murder of Jack Maeneri'i contrary to section 200 of the Penal Code. On 24th April, 2012, they were convicted and served the mandatory sentence of life imprisonment.

2. Further, on the same Information, both accused in this case were tried on the second count of "acts intended to cause grievous harm" contrary to section 224 (b) of the Penal code. On 24th April both accused were convicted at the same time as Count 1. In fact all the offences were tried at the same time.

3. This case was adjourned for submissions in regards to determining the appropriate sentence to impose on Accused Sutafanabo and Accused Maelonga.

4. The maximum penalty for the offence under section 224 (b) is life imprisonment. However, section 24(2) of the Penal Code provides a person liable to imprisonment for life or any other period may be sentenced for any shorter term.

5. The offence under subsection (b) is committed even though the facts are such that the commission of the offence is impossible. In other words, where the accused had not actually, or physically caused any harm to his intended victim, although the accused had actually strike. The absence of harm being inflicted attributed to missed strike or fended strike.

6. At trial, the Court found on approved facts that Accused Sutafanabo threw two spears at the victim and Accused Maelonga cut the victim with a bush knife. The fact that no injury was inflicted, though both accused did part take in the physical act in connection with the crime. Therefore executed a joint criminal enterprise of which each was a party; acting in concert in the killing of the deceased. They are potential and very dangerous act done with intent to cause grievous harm.

7. This offence is described as endangering life and health. Of course anything endangering life and health is serious. More so, when the concerted act by the two accused and another had led to the death of the victim.

8. In the present case both accused have been convicted of murder on 24th April, 2012, and have already been serving life sentence. It is most probable that an imprisonment sentence is the appropriate sentence available. The question is the length of the term.

Personal Circumstances of offenders.

9. Accused Sutafanabo is around 54 years old and he is the third born in his family. He is a married man with three children. His wife does domestic duties. He has no formal employment but engages in poultry farming to earn income. From the income he supports his wife and children. On the whole he is the bread winner. He has no formal education.

10. Accuse Maelonga is an elderly man with five children. His first born had already married. His second born is currently serving life sentence with him in prison. His three daughters are still young. Accused Maelonga says no one cares for his family. The responsibility now shifts to his wife and this has caused severe hardship to his family.

11. Personal circumstances are significant mitigating factors having a bearing on the length of sentences, ensuring they are not unnecessarily long with some discount. It is expected that the imprisonment sentence will have direct economic difficulties, and will deprive the social obligations due to the family. They are usual consequences that a spouse expected. However, these hardships could have been thought of before indulging in any criminality. It is of no effect at all to count numerous consequences that will impact the wife and children now. The law has to play its role to justify consequences of one's action.

12. Both accused in this case are first offenders. Before the date of this offence there were no prior convictions. They had never confronted with the law or Police previously. They are men with good characters. As such I must give some discount for that.

Reconciliation and Compensation.

13. After 23rd November, 2009, the date of incident, there was no compensation paid to the deceased's family, and reconciliation done by the families of both accused and the deceased. It has been considered an important aspect in custom to restore good relationship and peaceful coexistence. Accused Sutafanabo says he prepares to accept any propose reconciliation. Accused Maelonga says he will solve the problem after he is released from prison.

14. The views expressed by both accused are proposals without the prospect of reality. It may seem that the time for payment of any compensation and reconciliation may perhaps some distance away into the future. Accused Maelonga can't be certain when he will be released. I could not value the proposals as credit to be considered for discount.

Remorse.

15. Often feeling of remorse is closely associated with a plea of guilty. In this case both accused were found guilty after trial. It would be hypocrite of Accused Sutafanabo to feel remorse and say sorry now.

Concurrent and back dating of sentence.

16. There is no dispute that any sentence impose in this case be concurrent to the current life sentence serve by the two accused. However, there are conflicting views as to whether the sentences be back dated to the dates both accused were taken into custody.

17. In my respectful view, both accused were remanded in custody for both offences on the role they played which led to the death of the deceased. Furthermore, their actions on the day of incident when the offences were committed were suspicious and hence were arrested and placed in custody. Subsequently both were convicted after trial of those offences. It would be most appropriate to back dating their sentence to the date they were placed in custody. After all both offences were committed by one action on the same date.

Useful remarks to the Minister in considering grant of parole.

18. Counsels for both accused make reference to the Court of Appeal cases of Manioru, and Bolami V Regina, 9 of 2011 and 39 of 2011, of which the Court of Appeal approve the practice allowing the Counsel for the convicted prisoner of murder to make submissions in mitigation to the sentencing Judge to make some remarks which may be useful for the Minister in considering the grant of parole. Firstly, at what stage would such submissions be made? Will they be part and partial of the final submissions after trial? In normal circumstances when an accused for murder charge is convicted a mandatory sentence of life imprisonment follow suit immediately. In practice there is no mitigation after murder conviction. However the submissions are vague as to the content of any such remark. I would assume the Counsels are referring to the minimum sentence before an accused person be granted parole.

19. Whilst I respect the decision of Solomon Islands Court of Appeal on a case law, there is no provision in the Correctional Services Act 2009, neither any provision in the Regulations attached to it that empowers the trial Judge who convicted an accused for murder to make any such remarks or any recommendation at the judgment.

20. In other jurisdictions where the mandatory sentence has been scraped off and a minimum sentence is prescribed by law, has applied this practice successfully.

21. Whilst I agree this is a worthwhile practice, it would be unfair to make any remarks now in the absence of the principal in the first degree as he is not part of this submissions and sentence. Also, I have learned there is practise direction currently in the pipeline. Meantime we will leave it as it is until further development.

Tariff.

22. Counsels for both accused submit by citing the case of R v Kada[1], and R v Bitiai[2], which adopted the views in Kada case, as guideline.

23. Notably, the Kada case makes reference to the case of Dani [2004] SBCA 16 which establishes the bottom of the range for such offences [s.224 (a)] must be considerably higher than four years.

24. It further states; an offence under s.224 will be likely [subject to mitigation features, both subjective and objective] to fall into a category of the worst class of case and hence should attract the maximum sentence.

25. The Crown has cited three authorities. The first one is R v Joshua Kama, Joe Fakani, Peter Kwaitaka and Philip Koro[3]. Three of the accused were university students. Kwaitaka and Koro were found guilty of unlawfully attempting to strike a person with a weapon with intent to do grievous bodily harm. There was no injury sustained. All the accused were put on bond to appear and receive sentence when called upon to do so for a period of twelve months, and meantime to keep the peace and be of good behaviour.

26. The second case is State v Moce[4]. A Fijian case which deal with similar provision as S. 224 (b) of the Penal Code. The accused was jailed for 15 months for attempt to strike Corporal Waisea with a cane knife. The third case is Takule v R, a juvenile who pleaded guilty to two charges. One of them is the same charge as this one. However, he was put on good behaviour bond for two years to appear and receive sentence when called upon.

27. In the cases cited by Counsels, the Fiji case and the case concerning two accused in R v Kama & Others[5]; there were no physical and tangible injuries caused to the victims. In this case there was no injury inflicted. As such the Fiji and Kama cases are references providing some good guidelines.

28. Having said that, this offence warrants an imprisonment term. I have taken into account all the matters I have mentioned above. As well, I have taken into account the period both accused had spent in custody. Accused Sutafanabo was kept in custody since 29th November, 2009, and Accused Maelonga was kept in custody since 20th July, 2010, with no bail at all since then, for both.

29. All these factors justify a serious sentence be imposed. Three years imprisonment for each, to be back dated from the date both were taken into custody.

Orders.

1. Both accused to serve 3 years imprisonment each.

2. Both sentences to be back dated to the dates both accused were taken into custody. Accused Sutafanabo to serve 6 months and two weeks and 5 days. Accused Maelonga to serve 1 year, 1 month and 26 days.

3. Both sentences to run concurrent with life imprisonment both accused are currently serving.

The Court.

^[1] [2008] SBCA 9.
^[2] [2010] CA – CRAC 15 of 2009.
^[3] [2008] SBHC HCSI-CRC 358 of 2007.
^[4] [1994] FJHC 74.
^[5] Ibid 3.