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Regina v Voho [2012] SBHC 71; HCSI-CRC 438 of 2004 (1 June 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 438 of 2004

REGINA

-V-

CHRISTOPHER VOHO

HEARING: 11 July, 14 July, 26 - 30 September, 03 – 04 October, 06-07 October 2011, 8 May, 1st June 2012

Ruling (Sentence): 8th June 2012

R.B. Talasasa (Jnr.), Director of Public Prosecutions for the Crown
D. O'Shea for the Defendant

Palmer CJ.

1. The offence of murder is the most serious crime in our Penal Code carrying a mandatory sentence of life imprisonment. This is consistent with the Christian values and principles that our people subscribe to on the sanctity of life as enshrined in our Constitution[1], that no one has a right to take the life of another, save in limited circumstances[2], such as in defence of life or property, or as a result of a lawful act of war.
   
2. The sentence for murder used to be death by hanging but that was commuted to life imprisonment to preserve the sanctity of life without diminishing the seriousness and abhorrence of such crimes. Short of a death sentence, a life sentence was the only other legitimate and most civilised way of not only re-affirming the seriousness of such crime but the element of deterrence.
   
3. In a killing, a life is cut short and a legacy and a destiny denied; a family is deprived of the benefit and enjoyment of that life, if married, in the case of a man, a wife is deprived, where there are children, a father, and so on. In this particular case, the murder of the deceased was made much more gruesome and traumatic because he was beaten virtually senseless in front of his family. His last dying words to Derek Runi were for him to look after his children.
   
4. The evidence shows that the deceased was killed by a group of men, including the defendant. He had been blamed for being in alliance with Harold Keke's group. There had been a split amongst the community in that region with those aligning themselves with Andrew Te'e's group and the Joint Operation Group, and those with Harold Keke. The defendant was aligned it seems with Andrew Te'e's group and the Joint Operation group.
   
5. It was not a pleasant time for those living in those communities. Those who held the balance of power were in control and this was enforced vigorously by the use of guns, threats and intimidation. Those who happened to be at the wrong end of the stick so to speak, or side, suffered intimidation, harassment, violence and death. These power groups ruled by fear and intimidation; revenge beatings and killings were not uncommon. As long as one was on the winning side and remained loyal and faithful they were protected by that group. Traitors, spies or those described as "spear" were often brutally beaten and at times killed for betraying their group to the other side. At times those killed were innocent of the allegations levelled against them, but this was the environment in that region during that time and which the defendant grew up in.
   
6. I note that evidence has been led which showed that the defendant's father had also been killed by Harold Keke's group. The defendant therefore was a victim himself of the effects of the ethnic tension and violence that prevailed at that time. In some way this may explain why he decided to join up with others to put up resistance to Harold's group and provide assistance to the Joint Operation's group. The methods used however were no different to Harold Keke's group, for any beatings and killings were inflicted it seems with callousness and no holds barred. Little mercy was shown to the deceased when he was killed by the group that this defendant was with.
   
7. The most significant mitigating factor in this case is your age. You were only 12 years old at that time according to the birth certificate that has been provided. According to section 2 of the Juvenile Offenders Act [cap. 14], you would be classified as a "child". Your actions and behaviour at that time however did not reflect that age group. Perhaps you had to grow up quickly in your mind because of the hostile environment you found yourself in and had to join other armed groups for your own protection, preservation and survival. You must understand however that joining such groups is not a license to kill your enemy at will. If you were to place yourself in the position of the deceased, then perhaps you may have some understanding and appreciation of the eternal values of mercy, grace and compassion. Revenge is destructive and propagates a cycle of violence, death and destruction but mercy and forgiveness liberates and gives opportunity for healing, reconciliation to take place and peace and stability to be achieved.
   
8. As a child I am obliged to sentence you bearing in mind the provisions of the Juvenile Offenders Act ("the Act"). Of significance is section 13 of the Act, which provides that in the case of a grave crime, and the offence of murder is included in the schedule as a grave crime, the Court is given discretion to impose a period in the sentence for which you may be detained. That could be any period less than the maximum of a life imprisonment.
   
9. The Court of Appeal in Kelly v. Regina[3] had ruled that section 13 of the Act takes precedence over the mandatory sentence of life imprisonment for murder, as stipulated in section 200 of the Penal Code. I have power therefore to impose a lesser sentence of imprisonment where appropriate.
   
10. A number of other mitigating factors have been raised on your behalf by your lawyer, which I also take into account.
    
11. I take note of the evidence that you were a part of a group of nine or more men, but that you were not identified as a leader and took minimal part in terms of actually assaulting and beating the deceased. There are others still at large who are yet to be brought to justice over this crime.
    
12. There is no evidence that you used any weapon on the deceased. The most it seems was that you threatened the deceased with a knife but there is no evidence that you used it on him. There is some evidence you kicked him but that was all.
    
13. As a result of the tension you have been displaced and have had to resettle at a new place. That would have been quite a change and challenge for a young person. Although little or no remorse is demonstrated, there is sufficient material before me to show that you are not only willing to change but demonstrably a changed person. The submissions provided on your behalf by your lawyer with photos attached, show that you have been busy helping your mother make ends meet; you have helped her to build a new home and ventured into pineapple farming to make a living; you have not been idle. She depends on and relies much on you to help her, bearing in mind that she too had suffered as a result of this tension through the loss of a husband and father in the house.
    
14. I note you have been actively involved in church activities in your community as well and have been recognised and accepted for that.
    
15. Your prospects of rehabilitation are good and I accept submissions from your lawyer that you are unlikely to reoffend.
    
16. I take into account that you have served an extended pre-trial remand period in prison for 14 months. I accept for a young person this is a long time.
    
17. I am satisfied there is sufficient material before me that warrants the imposition of a sentence that is tailored to suit the peculiar circumstances of your case. Accordingly I order that a sentence of imprisonment for 3 years be imposed. In view of the fact that you have served 14 months in pre-trial custody, I will order a conditional release for the remainder, that is, 22 months, to be served in the community where you reside. The condition for your release is that you keep the peace and be of good behaviour, for that period herewith and stay out of trouble especially, violence and drink related offences. Should you re-offend or be found to be in breach of this order of conditional release, you will be re-arrested and ordered to serve the remainder of your sentence behind bars.
    

Orders of the Court:

1. Impose sentence of 3 years imprisonment.
   
2. Take into account the period of pre-trial custody of 14 months and have that deducted.
   
3. Order conditional release for the remainder of the sentence of 22 months to be served in the community where he resides on the following terms:
   
   • - That he keeps the peace and be of good behaviour for that period; and
     
   • - Stays away from violence and drink related offences.
     
4. In the event these orders are breached, that the defendant is to be re-arrested and ordered to serve the balance of his sentence in prison.
   

The Court.

^[1] See Section 4(1) of the Constitution
^[2] See Section 4(2) of the Constitution
^[3] [2006] SBCA 21; CA-CRAC 19 of 2006 (25 October 2006)