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R v Ngelea [2023] SBHC 8; HCSI-CRC 423 of 2020 (31 March 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Appeal Case No. 423 of 2020

Rex

V

PATRICK NGELEA VASIHARA, PATTERSON SORA, PETER RANGIA, JOHN MARE, DEVENOLD TAGHOBOLA, RICHARD JEFFERY JOHI, GRAY RAI, JAMIN SAROA AND RISI SIROVIMATE

Date of Hearing: 15 March 2023
Date of Sentence: 31 March 2023

Counsel; Mr Taupongi and Ms Suifasia for the Crown.
Counsel; Mr Weago for Defendant Vasihara.
Counsel; Mr Kama for Defendant Sora.
Counsel; Mr Ifutoo for Defendant Rangia.
Counsel; Mr Kwalai for Defendant Mare.
Counsel; Mr Alasia for Defendant Taghobola.
Counsel; Mr Limeniala for Defendant Johi.
Counsel; Mr Tinoni for Defendant Rai.
Counsel; Mr Waroka for Defendant Saroa.
Counsel; Mr Pulekera for Defendant Sirovimate.

Conviction and Sentence

1. Committal hearing in the Court below was completed on or around 19/08/2020. On 10/09/2020, Director of Public Prosecution (“DPP”) filed information charging all the defendants with murder. DPP entered nolli prosequi notice to discontinue the initial murder charge on 30/11/2022. Simultaneously, the DPP filed amended information to charge only Vasiharo for a lesser charge of manslaughter. Simultaneously, DPP also charged the rest of the defendants for even far lesser charges of acts causing actual bodily harm.
2. On 10/12/2022, all the defendants were arraigned on the amended charges premised on summary of agreed facts. All the defendants except Vasiharo pleaded guilty to the amended charge of acts causing actual bodily harm. Vasiharo pleaded guilty to the amended charge of manslaughter.
3. Court will adopt the summary of agreed facts filed by Counsel as follows: -

Background

1. On the 12^th of December 2022, Patrick Ngelea Vasihara has pleaded guilty to an amended information on Manslaughter contrary to Section 199 (1) of the Penal Code.
2. On the 12^th of December 2022 Patterson Sora, Peter Rangia, John Mare, Devenold Taghogola, Richard Jeffery Johi, Gray Rai, Jamin Saroa and Risi Sirovimate pleaded guilty to an amended information on Acts causing actual bodily harm contrary to Section 245 of the Penal Code.

The Incident

3. In the evening of 19^th March 2020 between 8:00 – 9:00 pm, at Sughu Village, the deceased Chronical Koroni Tovoa and his wife was sitting at the veranda of the house of David Woa.
4. A group of more than 10 men arrived at Sughu Village looking for the deceased. The deceased was accused for practicing sorcery and to be responsible for the deaths of some people.
5. Among the group were the defendants, Patrick Ngelea Vasihara, Patterson Sora, Peter Rangia, John Mare, Devenold Taghobola, Richard Jeffery Johi, Gray Rai, Jamin Saroa, and Risi Sirovimate.
6. The defendants located the deceased at David Woa’s house. The defendants apprehended the deceased and led him to Malaisu Village.

Facts on offence of Acts Causing Actual Bodily Harm:

7. Defendant Gray Rai grabbed the deceased and hit his body using his right hand.
8. The defendants assaulted the deceased almost simultaneously. Patterson Sore slapped the deceased face with his right open palm and he punched the deceased on his left shoulder with his right closed fist.
9. The defendant Richard Jeffery Johi slapped the deceased cheeks three times.
10. The defendants Jamin Saroa, Devenold Taghobola and Risi Sirovimate punched and kicked the deceased body.
11. The defendant Peter Rangia kicked the deceased on his buttock and kicked him on his right hand/arm.
12. The defendants lead the deceased along the road. Defendant John Mare hit the deceased back using the back of small axe, as the deceased was walking. He left the group and went to his Aunty Farani’s house. Later he returned to the group.

Facts on offence of Manslaughter

13. The defendant Patrick Ngelea Vasihara at the time was holding a stalk knife used for cutting oil palm, shaped like a hook. The defendant used the stalk knife to hit the deceased on his head.
14. The defendants then lead the deceased from Malaisu Village to Veralenge Village on the sea side. At the sea side, under a Koiro/Koilo tree, the defendant Patrick Ngelea Vasihara kicked the body of the deceased and whipped him with the knife. The deceased could not walk and talk.
15. A chief by the name of Henry Pitu intervened and warned the men to stop assaulting the deceased.
16. The defendants Patrick Ngelea Vasihara, John Mare and other boys made a stretcher bed of bamboo and a bag, placed the deceased on it. They carried the deceased to Barainaho Village and then to Tiro Village. They continued on and reached Veravaolu Village and placed the deceased in a truck and took him to Avu Avu clinic.
17. They reached Avu Avu clinic around 3:00 am. The nurse present at the time confirmed the deceased had died.

The Cause of Death

18. The Autopsy Report by Doctor Roy Maraka dated 21^st March 2020 showed that the cause of death was right subdural haemorrhage, caused by blunt trauma to the head.
19. In his opinion, the deceased died from right subdural haemorrhage as a result of blunt trauma to the head.
20. Furthermore, he states the most likely fatal wound was the Y-shaped (45mm long) laceration on the right side of the forehead, although all the injuries on the head could also contribute to the intracranial injury.
21. The Autopsy report showed multiple injuries sustained on the mouth, chest, and abdomen of the deceased. See report attached.

Time of Arrest and Pre-custody period

22. The defendants were arrested on the 24^th March 2020 and remanded on 25^th March 2020.

Compensation

23. The family of the defendants gave compensation for the deceased in the sum of $100, 000.00 cash. Twenty-seven (27) live pigs and four (4) Guadalcanal shell money.

Charge of “Acts causing actual bodily harm” contrary to Section 245 read with 21 (a) of the Penal Code against – Mr Sora; Mr Rangia; Mr Mare; Mr Taghobola; Mr Johi; Mr Rai; Mr Saroa and Mr Sirovimate

4. By amended information filed 30/11/2022, the rest of the defendants – Sora, Rangia, Mare, Taghobola, Johi, Rai, Saroa and Sirovimate were all charged for acts causing actual bodily harm. They all pleaded guilty on 10/12/2022. Accordingly, Court will convict the rest of the defendants as charged. Now I have to determine the appropriate sentence.
5. Court noted that this is a misdemeanor offence and the maximum penalty is 5 years imprisonment. But a life has been taken away. That is the serious face of this misdemeanor offence. Cases cited to me as guidelines for comparative sentence in similar offending have imposed sentences between 6 months – 2 years. Because of the serious face of this offence I will impose a sentence of 3 years. Defendants have already spent 3 years in custody awaiting the trial of their matters. Without saying much more, 3 years is already a heavy punishment in excess of the comparative sentence guidelines given to me. So, I will impose a sentence of 3 years. And noting that defendants have spent 3 years in pre-trial custody, I will release the rest of the defendants at the rising of the Court. They have been punished long enough, through delays.
   • Charge of “Manslaughter” contrary to Section 199 (1) of the Penal Code against – Mr. Vasihara
6. By amended information filed 30/11/2022, defendant Mr Vasihara was charged for manslaughter. Mr Vasihara pleaded guilty. Court noted that manslaughter is a serious crime having life imprisonment as the maximum punishment.
7. Defendant Mr Vasihara entered an early guilty plea to the charge of manslaughter on 10/12/2022. Full trial was vacated. Court is satisfied beyond reasonable doubt that Mr. Vasiharo caused the death of the deceased unlawfully. Court will convict Mr Vasihara of manslaughter on his entering of an early guilty plea premised on the summary of agreed facts. And move to determine the appropriate sentence.
8. Counsel have given me many case authorities on the comparative sentencing for similar manslaughter charges. I am most grateful to Counsel. The precedent comparative sentencing cases will guide me to determine the appropriate sentence. However, my uttermost considerations are – a life has been taken away and the merits of this case will tell me the appropriate sentence to impose.
9. The first thing I should settle is the starting point sentencing appropriate to the merits of this case. Using two Court of Appeal cases – Tapa’amae^[1] (drunkenness) and or Popoe^[2] (use of weapon/knife), I will set the starting point sentence at 8 years. Mr Vasiharo used a knife. Both Court of Appeal cases say the presence of weapon and or alcohol would attract a starting point sentence of 6 years and up. The knife used here I noted from my SIPL days in the 1990s is a very dangerous weapon (knife hook). Knife hook is made of metal, it is very heavy and whether sharpened or blunt, it can cause death once struck with heavy force in an angry mood, against the head of a person like what Mr Vasiharo did here (repeat agreed facts at paragraphs 3.13 and 3.14).
10. Court noted some aggravating features against you such as – deceased not armed, unprovoked attack, loss of life and use of knife. You went to look for the deceased with a group of boys while being very angry. You were armed with a dangerous weapon. You all found him sitting with his wife and you all abducted him and beat him to death. You were holding a deadly weapon, the knife hook. You struck the deceased’s head with the hook knife. On the doctor’s evidence and as agreed in the facts (repeat paragraphs 3.18, 3.19 and 3.20) and reflected in the dropped charge of manslaughter against you, I have to conclude that your hitting of the deceased’s head with the knife hook was the main cause of the death. And the other defendants contributing their acts causing actual bodily harm also contributed in some ways to the death. These facts tell me that your offending though is manslaughter was already bordering on murder – especially since you were very angry and armed and went hunting/looking for the deceased to kill him because he made some people die (mere rumours/allegations of sorcery). For these aggravating features I will add 5 years (13).
11. But then there are also mitigating factors in your favour – early guilty plea, first time offender with no previous conviction and that compensation was paid. I will deduct 3 years (10). You have already spent 3 years in pre-trial custody. I will deduct another 3 years (7). There are some delays since 2020 when you were committed from the Court below – breach of your constitutional right to fair hearing within a reasonable time (Section 10 (1) of the Constitution). I will further deduct 1 year (6).

Conviction, Sentence and Orders

12. Court will convict you of manslaughter, Mr Vasihara. And sentence you to 6 years in Rove Correctional Centre. This is a good deterrence for you and others. Anymore pre-trial custody entitlement not accounted for herein will be accounted for by the correctional authority. Court will also convict the rest of the defendants as charged for acts causing actual bodily harm. Court will impose 3 years sentence. Court will release the rest of the defendants at the rising of the Court. Order accordingly.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

^[1] Tapa’amae v R [2021] SBCA 12; SICOA-CRAC 3 of 2020 (1^st February 2021).
^[2] Popoe v Regina [2015] SBCA 20; SICOA-CRAC 42 of 2014 (9^th October 2015).