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Regina v Iroga - Sentence [2013] SBHC 128; HCSI-CRC 164 of 2009 (23 August 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 164 of 2009

REGINA

-v-

KELLY IROGA

Before: PALLARAS, J
Hearing Dates: 18th – 19th July 2013
Verdict Delivered: 24th July 2013
Sentence Delivered: 23rd August 2013

Crown: Mr R. Talasasa and Ms Miriam T. Manata
Defence: Mr H. Fugui and Ms Gina Nott (Advisor)
Mr S. Kalu in the absence of Mr Fugui, on sentence.

SENTENCE

1. Mr Kelly Iroga ("the accused") was charged with one count of robbery contrary to Section 293 (1)(b) of the Penal Code (Count 1) and one count of attempted murder contrary to Section 215 (a) of the Penal Code (Count 2). In the alternative to Count 2, the accused was charged with one count of intentionally causing grievous harm contrary to Section 224 (a) of the Penal Code.
   
2. After pleading Not Guilty he was convicted after trial of both offences on 24th July, 2013.
   
3. In coming to an assessment of the appropriate sentence, Courts have long recognised the need to be guided by the principles of retribution, deterrence, prevention and rehabilitation.
   
4. In my judgment, because of the nature of the offending in this particular case, the sentencing principles that are most significant are those of retribution and deterrence. That is not to say that I do not have regard to prevention and rehabilitation but that I give them less weight in the present circumstances.
   
5. Sentencing judges are to apply the facts of the case as found in the light of these principles and determine which of them are to have any and what weight. There is of course no fool-proof formula to be applied that will guarantee reaching the correct result. In Muldrock V The Queen[1], the High Court of Australia approved the remarks of McHugh J relating to the proper approach to sentencing in Markarian v The Queen. In that case McHugh J stated –
   

The judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgement as to what is the appropriate sentence given all of the factors of the case.[2]

6. In their sentencing submissions, the Crown submitted that there were aggravating features of the offending. It was said that -
   
   • The attack was unprovoked on an unarmed person
   • The victim was thrown from the bridge after being struck on the head
   • The prisoner showed no remorse
   • The prisoner used a weapon, namely, a bush knife
     
7. No sentencing starting point was suggested for either specific offence and the Crown contented itself with the submission that an overall starting point, taking both offences into account, should be between nine and eleven years. No authority was referred to in support of this submission.
   
8. Written sentencing submissions were filed by Mr Fugui for the Defence who suggested that in relation to the offence of robbery, a starting point of seven years imprisonment was appropriate. In relation to the offence of attempted murder, a starting point of ten years was appropriate.
   
9. Mr Kalu who appeared on the sentencing submissions hearing in the absence of Mr Fugui, disagreed with Mr Fugui's submissions on the relative sentencing starting points. He submitted that the starting point for robbery should be three to four years imprisonment while the starting point for attempted murder should be five to seven years imprisonment.
   
10. It was apparent therefore that the Defence could not come to a settled view as to the appropriate starting point in sentencing for these offences and the Crown offered no authority for choosing their suggested starting points.
    
11. On the prisoner's behalf, it was submitted in written submissions that there were factors mitigating the offending. They were said to be –
    
    • That the prisoner had no previous convictions
    • That the prisoner had "certainly a high prospect of rehabilitation" and
    • That considerable delay had been occasioned the prisoner in bringing the matter to trial
      
12. Matters put as being personal to the accused included –
    
    • He was 23 years of age and single
    • That although he wanted to better his education his education was limited
    • That he had a difficult upbringing with his father being absent for much of the time and
    • That he does family chores for his mother
      
13. Turning first to the circumstances of these offences, I do find that there are aggravating features of the prisoner's conduct. I agree that the attack was totally unprovoked and although I do not place any weight on the fact that the victim was unarmed, I do find the fact that the prisoner was armed with a weapon, which he used on the victim to be a significant feature of the offence.
    
14. A factor not mentioned at all by the prosecution but one, which I find to be significant is that the prisoner was part of a gang of youths variously estimated to be between three to five individuals. While it is impossible to say whether every one of the gang was involved in the attack, it is clear on the evidence that more than just the prisoner participated in these crimes. That it was an attack carried out in company is clear from the evidence of the attack on the victim from behind at a time when he was facing the prisoner, the conversation between the youths concerning getting a knife and killing the victim and the fact that it was not the prisoner alone who lifted the victim and threw him over the rails of the bridge into the river below.
    
15. I find that there has been gratuitous cruelty used in the attack on the victim. The extreme brutality of the attack is a matter of concern. Not only was the victim struck on the head from behind with a hard object, he was then struck on the head by the prisoner with a large bush-knife causing him a very serious wound extending to the bone of his skull. The victim was terrified and pleaded with his attackers not to kill him.
    
16. Furthermore, after he was forced to the ground by his attackers, he was repeatedly kicked to the head while in a totally defenceless and prone position. The victim described how the attackers stood on his head while he was on the ground as traffic was passing by.
    
17. Finally, being dissatisfied with the violence that they had already inflicted upon their victim, and while the victim was in a semi-conscious state so as to be unable to help himself, the prisoner and others picked him up and threw him over the bridge into the water below. These actions of the prisoner demonstrate such a degree of violence and viciousness and such a total disregard for the life of another human being, that I cannot but agree with the prosecution's description that this conduct demonstrated "cruelty in its highest form".
    
18. The issue of remorse has been a troubling one[3]. In Siganto v the Queen [1998] HCA 74; (1998) 194 CLR 656; 159 ALR 94; 105 A Crim R 184 Gleeson CJ, Gummow, Hayden and Callinan JJ said (at 663-664; 99; 189 [22]):
    

A person charged with a criminal offence is entitled to plead not guilty and defend himself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the prisoner, and secondly, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.

19. The prisoner pleaded not guilty at trial and testified that he was not present during the commission of the offence. It was a defence that denied the testimony of two men who knew the prisoner very well and placed him squarely at the scene of the attack on the victim. While this defence had (at least on the papers) very little realistic chance of succeeding, it is clear law that no sentence should be increased as a result of the conduct of the defence.
    
20. In R v Harper [1968] 2 QB 108; [1967] 3 All ER 619; 52 Cr App R 21 (CA) the accused was convicted of receiving goods stolen in a burglary. On sentence the Recorder said:
    

The defence which you instructed your learned counsel to run involved allegations of perjury by prosecution witnesses, intimidation, threats and improper behaviour by senior police officers, and allegations that two boys who pleaded Guilty and have been punished for breaking into Mrs Parkes' house were telling lies.

21. The Court of Appeal reduced the imprisonment from five years to three. Parker LCJ said:
    

This Court feels that there is a real danger .... that this appellant was being given what was undoubtedly a serious sentence because he had pleaded Not Guilty and had run his defence in the way indicated by the Recorder.

22. In R v Gray [1977] VR (CCA) McInerney and Crockett JJ said (at 231)
    

It is impermissible to increase what is a proper sentence for the offence committed in order to mark the Court's disapproval of the accused's having put the issues to proof or having presented a time wasting or even a scurrilous defence.

23. In the material presented to me I cannot find support for the submission that the prisoner is remorseful. It is to be noted that Mr Fugui in his written submissions did not seek to make this submission. It was only added later by Mr Kalu as a result of a question from the Court and very much as an apparent afterthought. Consistent with the sentencing principles outlined earlier, I do not seek to punish the prisoner for the manner in which he presented his defence. What can be said however is that there is nothing from within that defence and nothing said since by the prisoner or on his behalf that provides any basis for accepting a bland submission that he is remorseful. This does not serve to increase any penalty imposed, but rather to prevent the prisoner from relying on demonstrable and genuine remorse to reduce such a sentence.
    
24. In terms of the mitigating factors put forward by the Defence, it seems that notwithstanding Mr Fugui's written submissions, the prisoner does have a previous conviction in 2010 for larceny. Again, this does not serve to increase any penalty imposed, but rather to prevent the prisoner from relying on the fact that he is a without any previous criminal convictions to reduce such a sentence.
    
25. The factor of rehabilitation is put on the basis of the prisoner's age and the fact that since being held in custody he has attended some Bible programmes which it is submitted indicates "a redirection of the mindset" of the prisoner. The relative youth of the prisoner is a matter that I do take into account in assessing his prospects for rehabilitation. However, for sentencing purposes, I put little weight on the fact that the prisoner has attended some Bible classes while in custody.
    
26. The issue of delay is an ever present problem in this jurisdiction. While there has been some delay occasioned to the prisoner, it can be said that the delay in this case has not been as serious as it has been in many other cases. Whatever slight prejudice may have been caused to the prisoner as a result of the delay, I do not find it to be such that it should impact upon the sentence in any significant way.
    
27. Where a person is charged with more than one offence, a court will ordinarily impose a proper sentence on each offence and then consider questions of cumulation or concurrence together with questions of totality. To the extent that offences overlap and contain common elements, it would be wrong to punish the prisoner twice for the commission of the elements that are common.[4] Furthermore, where two or more offences are committed in the course of a single transaction, concurrent sentences are appropriate. However where the offences are different in character, cumulative sentences are appropriate.
    
28. When sentencing for more than one offence a court should impose a proper sentence on each count and, if necessary, order some concurrency to accord with the totality principle. This approach has been preferred to ordering cumulation of unnecessarily reduced individual sentences. However while concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised.[5]
    
29. In this case it is submitted on behalf of the prisoner that any sentences imposed should be concurrent as both offences were committed as part of the same incident. While it is correct to say that these offences occurred on the same night and at the same place, they are distinct offences that are qualitatively different in terms of their inherent criminality. In regard to the facts of the case, I have found that while and after being robbed, the victim was pressed to the ground by the prisoner and others. He was held there for some time while he was being beaten and kicked. The prisoner then stood on the victim's head while traffic went by, possibly to prevent the victim from alerting or calling to any passing traffic. It was only at that stage that the victim, in a dazed and semi-conscious state, was hauled to his feet, lifted up above the guard rails of the bridge, and thrown over the bridge into the darkness and to the river some 15 meters below.
    
30. These were quite distinct and separate crimes by the prisoner and are sufficiently different in character to make cumulative sentences a justifiable option. If cumulative sentences were to be passed, I am mindful that I should "stand back and look" at the overall sentence to ensure that the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose[6]. If it is not then periods of concurrency should be ordered to ensure that the sentence is not crushing or manifestly excessive.
    
31. However, the facts as found reveal that it is impossible to arbitrarily nominate where the robbery ended and where the attempted murder began. In my judgment, there are common elements to both of the offences committed by the prisoner. For example, I regard the forceful blow with a large bush-knife to the head of the victim producing a severe wound penetrating to his skull bone, to be both a precursor to the robbery and part of conduct engaged in by the prisoner, which was designed to kill the victim.
    
32. In those circumstances, it would be difficult to avoid punishing the prisoner twice for the elements common to both offences. To avoid that danger, I accede to the submission of the defence that I should impose concurrent sentences.
    
33. The prisoner was charged under Section 293 (1)(b) of the Penal Code which provides that any person who robs another while using or threatening any personal violence shall be guilty of a felony and shall be liable to imprisonment for life.
    
34. Section 215(a) of the Penal Code provides that any person who attempts unlawfully to cause the death of another shall be guilty of a felony and shall be liable to imprisonment for life.
    
35. It is trite to say that the two offences of which the prisoner has been convicted, are two of the most serious crimes in the criminal calendar. The provision of a penalty of life imprisonment is a clear indication that the legislature regards them as such and as being liable to the most severe penalty available to the criminal law.
    
36. Where, as with these offences only maximum penalties are prescribed by legislation, the Courts have a very wide discretion in coming to an appropriate sentence. In doing so, all of the circumstances of the particular offending and of the offender have to be taken into account in reaching a just decision. I have carefully considered all of the aggravating and mitigating features of this offending together with the factors personal to the prisoner, particularly his relatively young age.
    
37. In my judgment, an appropriate sentence in relation to this offence of robbery is six years imprisonment.
    
38. In relation to the offence of attempted murder, I have been referred to a decision of this Court in Malefo v R Criminal Appeal Case No.34 of 2012. While I am guided by the decision in the Court of Appeal, which indicated a starting point of between 5-7 years imprisonment, the facts of the present case are manifestly worse than in Malefo.
    
39. In Malefo there was an absence of the cruel violence leading up to the attempt on the victim's life, which is associated with the present case, no weapon was used and the offence was not committed in company. For those reasons, I judge it appropriate in the present case to impose a sentence of 12 years imprisonment for the offence of attempted murder.
    

The Orders of the Court are as follows:

1. The prisoner is convicted of one count of robbery contrary to Section 293 (1)(b) of the Penal Code and sentenced to six years imprisonment.
   
2. The prisoner is convicted of one count of attempted murder contrary to Section 215 (a) of the Penal Code and sentenced to twelve years imprisonment.
   
3. The sentences are to be served concurrently.
   
4. The sentences are to be backdated so as to take into account time spent in custody solely for these offences.
   

......................................................
THE COURT

^[1] [2011] HCA 34
^[2] [2005] HCA 25; (2005) 228 CLR 357, 378
^[3] See too the discussion in Ross On Crime, David Ross QC, 3^rd Edition (2009) at 1048 ff [19.1145 ff]
^[4] Pearce v The Queen (1998) 194 CLR 610
^[5] Director of Public Prosecutions v Grabovac [1998] 1 VR 664
^[6] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, at 341