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R v Kouarosi [2023] SBHC 132; HCSI-CRC 277 of 2023 (28 July 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 277 of 2023

REX

V

CLETUS KOUAROSI

Date of Hearing: 14th July 2023.
Date of Sentence: 28th July 2023.

Counsel; Ms Olutimayin (DPP) for the Crown.
Counsel; Mr Limeniala for the Defendant.

KENIAPISIA; PJ:

SENTENCE

Introduction

1. Mr Cletus Kouarosi, the defendant comes from Kopo village, Waisisi harbour, West Are'Are, Malaita Province. Mr Kouarosi is charged with manslaughter contrary to the Penal Code Act (Cap 26). Manslaughter is a serious offence because a human life was taken away and the punishment is a maximum of life imprisonment^.[1]
2. Court arraigned Mr Kouarosi on the charge of manslaughter together with amended summary of facts that the DPP read out. The charge of manslaughter is contained in the information that Crown filed on 2/6/2023. The particulars of offence briefly state that Mr Kouarosi at Kopo village, West Are'Are, Malaita Province, on 14^th January 2022 unlawfully caused the death of John Maimahi.
3. Mr Kouarosi pleaded guilty to the charge of manslaughter premised on amended summary of facts, which resulted from negotiations between the DPP and defence counsel, with input from the Court. Court's input came about because the Judge comes from Are'Are region and has local knowledge on facts like correct names of villages, correct local name for the homemade tobacco, missing fact on what time the deceased died and missing fact about close blood relationship between the deceased and defendant as the original summary of facts suggested a family conversation about outstanding bride price payment. Court's input resulted in an amended summary of facts read out to the defendant on the day of arraignment (14/7/2023).
4. Based on the defendant entering an early guilty plea to the charge, premised on amended summary of facts, the Court convicted the defendant of manslaughter straight after arraignment on 14/7/2023. Now I have to determine the appropriate punishment to impose on the defendant.

Amended summary of facts filed on 14/07/2023

5. The amended summary of facts is adopted in full as follows: -

5.1 The deceased is John Maimahi, the autopsy report shows that he was 40 years old at the time of his death.
5.2 The offending occurred sometime between 9 am and 11:00 am on Friday 14^th January 2022 at the house of Andrew Ra'ata at Kopo village, West Are'Are Malaita Province.
5.3 The defendant, his small son, Lesly Maeiuhana stayed at the house with his nephew Christopher Keniwara'a. They were looking after his son Sensly Ho'ohahia who was sick at the house.
5.4 The entry to the house had an area with wooden seating around the side. There was a small timber ladder into the main room of the house. Under the wooden seating in the entry was firewood.
5.5 On 14^th January 2022, between 9 am to 10 am, while the defendant was taking care of his sick son in a house at Kopo village, West Are'Are, the deceased approached him to buy some homemade tobacco (locally known as Apaeto or Mapuru) from a woman who was selling apaeto or mapuru in the same area. Upon his arrival the defendant told the deceased that the woman was away. The defendant then gave the deceased some apaeto/mapuru and told him to have it while waiting for the woman's return. They continue to have apaeto on the veranda of the house used for cooking and storage of kitchen utensils.
5.6 While they were smoking, the defendant made a joke to the deceased translated as, "Why do you always want to stay with the people from your wife's side?" The deceased replied and said, "Do you think I do not have shell money; I will buy my woman this year." The defendant then told him that their family would hold a meeting to discuss it and contribute money to pay the bride price.
5.7 The deceased told the defendant that he has no shell money and that he should not be boastful. He further pointed in his face and said that he was a trouble maker and that his sick son would die because he and Peter Mane are crooks who steal land. At that time the deceased moved and went to stand at the place used for cooking.
5.8 The deceased and defendant are close relatives, they are first cousins.
5.9 Upon hearing the words, the deceased said about his son and seeing the deceased's actions, the defendant become very angry. He told the deceased to go away but the deceased was reluctant to leave.
5.10 Consequently, he picked up a piece of firewood in his right hand and shot the deceased. He did not know where the firewood landed because the plates and the dishes blocked his view. The defendant meant to make the deceased run away but the deceased jumped and hit his head on the extension part of the building where he was standing. He also hit his back on top and rolled on top of his belly area. He got up and held the same firewood used by the defendant. When the defendant saw him doing that, he picked another firewood and turned to face him, but the deceased ran out with the firewood in his hands.
5.11 The defendant chased him until the deceased stopped and faced him. He then dropped the firewood he was holding. The defendant saw that and dropped the firewood he was holding. They reached and tackled each other and tried to take each other down. Their nephew Tasposka Oauru intervened and stopped the fighting.
5.12 After the fighting, the deceased ran up to a house where Patricia Waomisi was staying. The deceased fell onto the ground and Patricia and her son lifted him up. The deceased told Patricia that the defendant had attacked him. The deceased fell to the ground again. Patricia called out to others for help. They put the deceased in a canoe and paddled to Heraipai village. He was transferred to an outboard motor at Surairo village, when they arrived, the deceased was taken to Rohinari clinic.
5.13 The deceased died between 11.00am and 12.00pm on 14^th January 2022, at Waisisi Malaita.
5.14 A copy of the autopsy report prepared by Dr Maraka, dated 2^nd May 2022, is produced as part of Crown's amended summary of facts.
5.15 On Saturday 15^th January 2022, police from Auki travelled by outboard motor to Waisisi area in West Are' Are. They attended the crime scene, took statements from witnesses and also assisted with the post mortem the following day.
5.16 An autopsy was performed on Sunday the 16^th January 2022. The cause of death was noted as haem peritoneum, which is the build-up of blood in the space between the inner lining of the abdominal wall and the internal abdominal organs. It was caused by a raptured enlarged spleen resulting from blunt trauma to the left side of the back.
5.17 On external examinations, there were several abrasions on the left side of the back (mid and lower parts of the back). There was also a bruise (125x50mm) and reddened lesion on the left side of the back. There were three abrasions each on the elbows and left thigh. A laceration was present on the lower hip and swelling on the left side of the neck. The injuries were noted as being consistent with blunt trauma to the abdomen or left side of the back.
5.18 On Tuesday 18^th January 2022, the defendant participated in a record of interview with Police. He admitted that he threw a piece of wood at the deceased.

Consideration of appropriate sentence

6. I start the consideration of my sentence by reminding myself of the seriousness of this offence. I re-iterate again that this is a serious offence because a life has been taken prematurely at the hands of the defendant. The seriousness is also reflected in the maximum statutory penalty of life imprisonment.
7. I am guided by the sentencing tariffs counsel suggested to me, some of which are binding on me, because the tariffs cited as guidelines were set by the Court of Appeal. At the end of the day however, the appropriate sentence will be at my discretion, based on the circumstances of the case at hand. Relying on the Court of Appeal case of Rongodala^[2], the DPP pointed to me that each case must be decided on its own set of facts and highlighted that there is no rigid tariff for the tariff for the offence of manslaughter.

Starting point sentence and aggravating factors

8. The DPP cited to me two Court of Appeal cases, which say that the presence of weapon^[3] and or intoxication^[4] in a manslaughter offending, the appropriate starting point sentencing tariff should be "6 years or more". I would say yes to this and add that it should have a starting point of 6 years or more because of loss of life (very serious offending). When a life is taken away, I do not know, if "serious" is the better description. But for lack of better words, I will settle with serious.
9. In this case, the use of alcohol is absent but the use of weapon is present, because the defendant used a firewood to kill the deceased (repeat 5.10 and 5.11). Because of the use of a weapon and loss of life, I feel that a starting point sentence of 10 years is appropriate and consistent with the threshold or tariff of 6 years or more.

I will inflate that to 12 years because of the aggravating factor of the use of weapon and also that the accused was the first person who provoked the deceased jokingly by saying "You always stay on your wife's side that is a provoking joke to make in Are'Are culture. Deceased got angry (see how he reacted in 5.6 and 5.7 — evidence of provocation). The joke means that the deceased is not fit to get married. It means the deceased is being looked after by his wife's side rather than him looking after his wife. It means he is a woman and not man. It is culturally degrading and demeaning for a man to receive such comments from another man, let alone a brother. The firewood to have caused the death of an adult male person is not a small firewood but a deadly weapon indeed. The Use of a weapon and initial provocation are serious aggravating factors that justify an uplift of the starting point sentence to 12 years.

Mitigating factors to reduce

11. But then there are very good mitigating factors that will work in the defendant's favour to reduce the inflated/aggravated sentence. I consider the following pertinent mitigating factors first time offender with no previous conviction; early guilty plea and provocation and unplanned killing. I must also say that the words the deceased uttered to his defendant brother were equally provoking — "Your son will die and Peter and you are crooks These equally provoking words the defendant received from his deceased brother would have logically aroused such angry response (see paragraph 5.9, 5.10 and 5.11).
12. I will quickly explain why these four mitigating factors will attract a reduction to the 12 years head sentence I determine above in paragraph 10: -
    • (i) First time offender with no previous conviction. This is always a factor that must mitigate to reduce a sentence for first time offenders.
    • (ii) Early guilty plea - this saves the Court's time and shows remorse. I think this was sincere remorse because the defendant and the deceased are first cousin brothers. They were doing what cousins in the villages always do when visiting each other, talking about family matters and obligations (bride price for the deceased) and sharing in smoking cigarettes (homemade tobacco - mapuru). Unfortunately, their discussions as brothers turned sour because of unhealthy and provoking words uttered by the defendant initially and followed by the deceased later in response - "Your son will die because you and Peter are robbers of people's lands Considering that the defendant's son was very sick for some time, having to leave Honiara Senior High School and that the defendant was looking after him, I would imagine it was heartbreaking and very harmful to have consumed those provoking words from the deceased.
    • (iii)

Provocation and unplanned action - and so the consumption of those provoking words naturally and logically aroused the defendant's instinct and he acted out of the spur of the moment and threw a firewood stick that killed his deceased brother. I accept that the defendant had no prior planning and intention to kill his own brother. The defendant told the deceased to go away but the deceased would not go. He threw the firewood to make the deceased run away but instead caused the death of his brother (repeat 5.9 and 5.10).

Conclusion and Orders

13. For all the forgoing important mitigating factors combined, I will allow a one third reduction and sentenced the defendant, Mr Kouarosi to 8 years imprisonment. The 8 years term will start to run from 18^th January 2022, when the accused was remanded in custody. Order accordingly.

THE COURT
JUSTICE JOHN KENIAPISIA
PUISNE JUDGE

^[1] Section 199 (2) of the Penal Code Act (Cap 26)
^[2] 2 Rongodala v R [2006] SBCA 2
^[3] Popoe v R [2015] SBCA 20. see paragraph 79.
^[4] Tapa 'amae v R [2021] SBCA 12