Tariani v Reginam [1989] SBCA 3; [1988-1989] SILR 7 (11 December 1989)

[1988-1989] SILR 7

IN THE SOLOMON ISLANDS COURT OF APPEAL

Criminal Appeal Case No. 1 of 1989

TARIANI

v

REGINAM

Solomon Islands Court of Appeal
(Connolly P, Sir Marl Kapi and Savage JJA)
Criminal Appeal Case No.1 of 1989

Application for leave and bail pending appeal: 1 February 1989

Hearing of appeal: 7 August 1989
Judgment: 11 December 1989

Sentence - attempted murder - whether life imprisonment appropriate - guidelines for imposing discretionary life sentence.

Facts:

The appellant was convicted of attempted murder. The victim, the wife of an expatriate medical officer, was walking along the road with her child when the appellant violently attacked her without warning with a bush knife. The appellant was a prisoner at the time, and was working near the road as part of a prisoners' work party. The victim suffered very serious injuries which the court found were likely to result in permanent disfigurement. At his trial before the High Court the accused pleaded guilty. A psychiatric report was tendered which showed that the appellant suffered from recurrent episodes of paranoid schizophrenia and there was a real risk that he would further assault another person. The learned Chief Justice imposed a sentence of life imprisonment. The appellant was granted leave to appeal against the severity of the sentence.

Held:

Per Connolly P. and Savage JA:

(1) A discretionary sentence of life imprisonment may properly be imposed where each of the following conditions are satisfied -

(i) where the offence or offences are in themselves grave enough to require a very long sentence;

(ii) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and

(iii) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.

R v. Hodgson (1967) 52 Cr. App. R. 113 followed. In the present case the conditions were clearly satisfied and the sentence of life imprisonment was amply justified.

Per Kapi JA:

(2) The English approach to sentencing should not be adopted entirely. The basic principle is that the punishment should be strictly proportionate to the gravity of the offence. Some of the factors which may be considered in assessing the seriousness of a case are -

(i) the nature of the offence;

(ii) the potential dangerousness of the offender to the community;

(iii) the nature of the injuries received and the nature of injuries that may be committed in the future.

Acting Public Prosecutor v. Uname Aumane &: Other [1980] PNGLR 510, Avia Aihi v. The State (No.3) [1982] PNGLR 92 and Goli Golu v. the State [1979] PNGLR 653 followed. In the circumstances of the present case a sentence of life imprisonment was justified.

Appeal dismissed.

Cases referred to:

Acting Public Prosecutor v. Uname Aumane & Other [1980] PNGLR 510
Aria Aihi v. The State (No.3) [1982] PNGLR 92
Goli Golu v. the State [1979] PNGLR 653
R v. Anderson [1977] Crim.L.R. 489
R v. Ashdown [1974] 1 W.L.R. 270; (1973) 58 Cr.App.R. 339; [1974] 1 All E.R. 800; [1974] Crim.L.R. 130
R v. Bibi (1980) 71 Cr.App.R. 360
R v. Blogg (1981) 3 Cr.App.R.(S.) 114
R v. Chaplin [1976] Crim.L.R. 320
R v. Hercules (1980) 2 Cr.App.R.(S.) 291; [1980] Crim.L.R. 596
R v. Hodgson (1967) 52 Cr.App.R. 113; [1968] Crim.L.R. 46
R v. Hutchinson [1979] Crim.L.R. 190
R v. Nell [1969] 2 N.S.W.R. 563
R v. Picker (1970) 54 Cr.App.R. 330
R v. Pither (1979) 1 Cr.App.R.(S.) 209
R v. Short [1979] Crim.L.R. 262
R v. Turemko [1965] Crim.L.R. 319
R v. Thornton [1975] Crim.L.R. 51
R v. Watson (1979) 1 Cr.App.R.(S.) 344
R v. Wilkinson (1983) 5 Cr.App.R.(S.) 105
Saukoroa v. R. [1983] SILR 275
Veen v. The Oueen [1979] HCA 7; [1978] 143 CLR 458
Veen v. The Oueen (No.2) [1988] HCA 14; [1988] 164 CLR 465

J. Muria for the appellant
F. Mwanesalua, DPP, for the respondent

1 February 1989

CONNOLLY P.: The applicant was convicted before the High Court on 24 November 1988 of attempted murder and was sentenced to the maximum punishment provided for the offence, namely imprisonment for life. He seeks leave to appeal on the grounds that the sentence imposed was manifestly excessive in all the circumstances including the fact that he pleaded guilty, that the sentencing was out of line with the level of sentencing for this offence and to the fact that the learned Chief Justice in sentencing him observed that a determinate sentence would result in his release without regard to his psychiatric condition which, it is said was an assumption not supported by evidence. The learned Chief Justice described the attack as violent in the extreme and totally unprovoked, the victim being an unarmed and defenceless woman. His Lordship noted that at the time of this offence he was serving a sentence of three years imprisonment for an attack with a bush knife on his stepfather. So far as his psychiatric condition is) concerned His Lordship had before him the report of an eminent psychiatrist which reveals that the applicant suffers from recurrent episodes of paranoid schizophrenia.

I am asked to grant leave to appeal pursuant to section 34 of the Court of Appeal Act 1978. In my opinion leave ought to be granted if only because, when the maximum sentence of life imprisonment is imposed in circumstances where it is not mandatory, there is usually at least an arguable case.

There is a further reason. In this case, as it seems to me, a question of law of general importance is likely to arise and that is whether the Court should follow the decision of the High Court of Australia Veen v. The Queen [1979] HCA 7; [1978] 143 CLR 458 in which a majority of the Court held that the protection of the community, though an important factor in determining sentences in the State of New South Wales, is not of itself a justification for a sentence of preventive detention. It is to be noted that in Veen the High Court reduced from life to twelve years a sentence for manslaughter by stabbing. Veen was released on licence after eight years and nine months later committed a further manslaughter by stabbing. The trial Judge sentenced him to life imprisonment and on this occasion the High Court did not interfere. See Veen v. The Queen (No.2) [1988] HCA 14; [1988] 164 CLR 465. It is, I think, right to say that the High Court would seem, in effect, to have modified some at least of the views expressed in the earlier decision. A point of principle is however involved and for that reason as well I grant leave to appeal against sentence.

Whatever the outcome of the appeal may be, a heavy custodial sentence is obviously involved and there can be no question of bail pending appeal.

11 December 1989

CONNOLLY P. AND SAVAGE JA: On 24 November, 1988 the appellant was convicted, on his own confession, of attempted murder before the Chief Justice and sentenced to life imprisonment. The sentence imposed was the maximum provided by law, but it was not mandatory. He sought leave to appeal against sentence on the grounds that the sentence was manifestly excessive, having regard to his plea of guilty and the effect that such a sentence would have on him; and that it was out of line with the previous sentencing practice in the High Court for this offence. The Chief Justice had observed that any determinate sentence, even if for a very long period would result in the appellant's release without regard to his psychiatric condition. This statement was said to involve an assumption not supported by evidence before the court. In our opinion, this ground of appeal may be put to one side, for the statement by his Lordship is no more than a statement of the obvious. The provisions of the Mental Health Act can be invoked in a proper case whether the person concerned is or is not a prisoner. What his Lordship was concerned with was the effect of the sentence of the Court of itself.

The President gave leave to appeal because the imposition of a discretionary life sentence will almost always be open to argument but particularly having regard to the view expressed by the High Court of Australia in Veen v. The Queen [1979] HCA 7; [1978] 143 CLR 458, that the protection of the community, though an important factor in determining sentences, is not of itself a justification for a sentence of preventive detention. It is, in our judgment, plainly important to determine whether that doctrine ought to be applied in the Solomon Islands and, indeed, what the attitude of the Courts should be in this country when faced with a situation in which the person to be sentenced is perceived to be a danger to the community.

The circumstances of the offence may be shortly stated. Between 9.00 and 9.30 a.m. on 10th December, 1987 the victim, the wife of the Chief Medical Officer for Makira Province, was returning along the main road from the shopping centre at Kira Kira, walking towards the Solair Office with her child in a stroller. She continued past the Solair Office and Post Office and was approaching a bridge by the police station when she was seen by the appellant. The latter was an inmate of Kira Kira Prison and was working on a drain using a bush knife. She was not known to the appellant, who insists that he has no ill will towards women or white people. What happened next was that, without any sort of provocation and for no discernible reason, he made an attack on her which the Chief Justice has properly described as violent in the extreme. It is sufficient for present purposes to describe it in his Lordship's language: -

"In a totally unprovoked attack on an unarmed and defenceless woman four dreadful blows were struck. Two of those blows can only be seen as aimed at cutting off the victim's head and another was of sufficient force completely to cut through the bone of the upper arm. The fact the victim is still alive owes nothing to the accused and is solely the result of the skill of the medical profession and presumably the victim's strength."

When interviewed by the police he said that he did not feel sorry for her at the time of the attack, but in the cell afterwards he regretted what had been done. He said he had not meant to cut any particular part of her body, or to kill her, but he had meant to cut her.

At the time of this offence he was serving a sentence of three years imprisonment for an attack on his stepfather with a bush knife. He was examined by a specialist psychiatrist, Dr Williams, who was Director of Post-graduate Studies in Psychiatry at Royal Prince Alfred Hospital, Sydney. According to what he told Dr. Williams, the attack on his stepfather involved the use of two knives and his stated reason for the attack was that he had become very angry with him over marital arrangements for his sister. He admitted meaning to harm him and expressed no contrition for what he had done. Dr. Williams' conclusions may be summarised as follows. He was fit to plead, knew what he was doing and knew that he ought not to do it. He appeared, however, to be suffering from recurrent episodes of paranoid schizophrenia and impressed as being a man who, since early adolescence, has had poor control over his aggressive feelings, particularly when angry. Dr. Williams' concluding observations were as follows: -

"I believe there is a risk he may further assault another person, and the outlook as far as this tendency to go away is poor in the short term. In view of his past history suggestive of schizophrenia, would recommend he be given a trial of a long acting tranquillising drug by regular injection. There is a possibility this may also help control his aggressive outbursts. Together with his taking medication, he should undergo regular medical review."

Against this background the learned Chief Justice observed that Dr. Williams' report pointed to a sentence which would protect the public for a long time. His Lordship then made the observation that a determinate sentence would, of its nature, result in release without regard to his psychiatric condition. This is plainly correct for, unless the authorities invoked other legislation, a prisoner who has served the sentence imposed on him by law has an absolute right to release. His Lordship continued,

"On the other hand a sentence of life imprisonment is an indeterminate sentence. When and how he will be released will be subject to the Commission for the Prerogative of Mercy who will, no doubt, consider reports from the medical and prison authorities and only release him when they feel it is proper in all the circumstances at the time."

His Lordship then imposed the sentence against which this appeal is brought, but recommended that the relevant papers be sent to the prison authorities for use in determining the appropriate method of treating him while in custody and in assessing the manner of his confinement. This, of course, will also have the effect that the Commission for the Prerogative of Mercy will be fully apprised of the facts of his case when it comes before them for consideration.

It is not really contended that the conclusion was not open that the appellant is a risk to the public in that he may further assault another person and that the prospect of this tendency going away is poor in the short term, the only prospect of improvement in his condition lying in regular injections of some long acting tranquillising drug. The proper approach to sentencing in a situation such as this is, in our opinion, to be found in Hodgson (1967) 52 Cr.App.R. 113, a decision of the Criminal Division of the Court of Appeal constituted by Lord Denning M.R. and Widgery and Mackenna JJ. In that case the offender was sentenced to life imprisonment on each of two counts of rape and one of buggery, committed on two women whom the appellant attacked late at night in public places; and sentences of two years for an assault on one of the two women occasioning actually bodily harm and four years for an assault on a third woman with intent to rob. The learned sentencing Judge had plainly proceeded on the basis that the public and, in particular, women and girls, needed to be protected against him. The appellant was 23 and had been convicted twice of various assaults on women, one for wounding with intent to cause grievous bodily harm and the other for assault occasioning actual bodily harm. The judgment of the Court was delivered by Mackenna J. who said:

"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence, (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence. We think that these conditions are satisfied in the present case and that they justify an indeterminate life sentence. The Home Secretary has of course the power to release the appellant on licence when it is thought safe to release him, if that time comes."

The present case meets each of the three criteria in Hodgson. As to the first, one is accustomed to the submission that the maximum sentence should only be used for the very worst example of offence. The learned Chief Justice was satisfied that this case was indeed within that category, but it is useful to remind oneself of the following observation in the majority judgment in Veen v. The Queen (No.2) [1988] HCA 14; [1988] 164 CLR 465 at p. 478 about the principle that the maximum sentence should be reserved for cases within the worst category:

"That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case, ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category."

So far as the principle adopted by the High Court of Australia in Veen (No.1) is concerned, we do not consider that it ought to be followed in Solomon Islands. The principle is put starkly in the dissenting judgment of Wilson J. in Veen (No. 2) at p. 484 as being that the protection of the public did not, alone, justify an increase in the length of a sentence. The argument had been put, somewhat emotively, by the Court of Criminal Appeal of New South Wales in Nell [1969] 2 N.S.W.R. 563 that to increase the sentence for the protection of the public amounted to imprisonment for crimes likely to be, but not, committed. It is this thinking which would seem to have led the majority in Veen (No.1) to the view that the factor of proportionality must not be sacrificed in favour of the protection of the community. See e.g. per Stephen J. at p. 467, Jacobs J. at p. 490 and Murphy J. at pp. 494-5. The result of Veen (No. 1) was that the prisoner, who had committed two homicidal attacks on human beings, as well as an attempted suicide, had his life sentence reduced to twelve years and somewhat patronising remarks were made about the conclusion of Rath J. at his trial, that it was probable that, on release, he would again commit a crime of serious violence. He was in fact released after eight years and promptly did what Rath J. had predicted. He inflicted some 25 wounds with a knife, killing the victim and was acquitted of murder, either on the ground of provocation or of diminished responsibility, or both. A sentence of life imprisonment was on this occasion sustained by the High Court on the footing that the probability of his re-offending had, by then, become apparent. We can only say that it was apparent to Rath J. at his first trial.

The present state of the law as enunciated by the High Court of Australia is less than satisfactory for adoption in this country. It may shortly be stated as being that the proper sentence should not be extended with a view to the protection of the public, but that the protection of the public is a serious factor to be taken into account in determining what is the proper sentence.

For present purposes it is sufficient to say that Hodgson sets out the appropriate criteria and that the application of those criteria amply justifies the sentence passed by the learned Chief Justice in this case. For what it is worth, Hodgson was accepted in Veen (No. 1) by Mason J. at p. 471 as correct in the course of reasoning which was in turn accepted, in the majority judgment in Veen (No. 2), as correctly stating the law.

We would dismiss this appeal.

KAPI JA: The appellant was convicted on a charge of attempted murder contrary to section 208(a) of the Penal Code.

At the time of commission of this offence, the appellant was serving a term of imprisonment at the Kira Kira Prison from another offence. On the day in question, the appellant was working on a drain not fat from the police station. He was working with a bush knife. There is a bridge over this drain.

The victim, Mrs Cross, was returning from shopping with her small daughter. The appellant is alleged to have stated to Dr. Williams that he did not see the victim coming. The appellant said that when the victim crossed the bridge and came closer to him, he got a surprise, and when the victim did not greet him, he became very angry and chopped the victim several times with the bush knife. All of this was a surprise to the victim. There is no evidence to suggest that the victim did anything which might have provoked the appellant.

The injuries received as a result of the attack are as follows: -

1. Right upper arm was almost severed from the body, the cut completely sectioning right humerus and a large proportion of the soft tissues, muscles and nerves.

2. The right shoulder was deeply lacerated and part of the bead of the humerus and clavicle were damaged.

3. A very deep full-thickness facial wound affecting all the right cheek; this included the removal of three upper teeth, splitting of the outer plate of the body of the mandible on the right side and causing a fracture of the mandible between the right second premolar and the right first molar teeth. In addition, the facial laceration included destruction of a portion of the parotid duct and cutting of some of the branches of the facial nerve. There was a minor laceration involving the tip of the nose on the right side.

4. A long very deep laceration extending from the ear on the left side causing the lobe and part of the cartilage of the left ear to be sectioned. This laceration then extended diagonally across the neck on the left side and across the back as far as the mid-line.

All these lacerations were deep and serious, resulting in loss of a large volume of blood, and laceration of vital structures in the arm and face which probably will result in permanent disability.

The learned Chief Justice imposed the maximum penalty of life sentence.

The Appellant has appealed against the severity of the sentence under section 20(c) of the Court of Appeal Act. Counsel for the appellant has submitted that even though this was a serious case of attempted murder which would attract a long determinate sentence, life imprisonment was excessive and not appropriate.

It is now well settled law in this jurisdiction that this Court will only interfere with the sentence if the trial judge fell into error in acting on a wrong principle of law or has misdirected or wrongly assessed the facts of the case. See Saukoroa v. R. [1983] SILR 275.

The penalty provided for attempted murder is a maximum of life imprisonment. Under section 24(2) of the Penal Code, the Court may impose any shorter term of imprisonment.

Where the law simply provides a maximum sentence, the Courts are given a very wide discretion to determine the appropriate penalty in each case. The Courts have developed principles of sentence which guide the exercise of this discretion. The Courts have developed theories of sentence which may be described as deterrence, separation, rehabilitation and retribution. I have described these theories in the Papua New Guinea case of Acting Public Prosecutor v. Uname Aumane & Other [1980] PNGLR 537 - 538. At p. 538, I said: -

"The agonizing task for the sentencing judge is to evaluate which of these theories of sentencing should be achieved in the particular case he is dealing with. A judge is faced with a dilemma because if he chooses one theory of sentencing he is likely to frustrate the other theories. In some cases, a judge will need to give a balanced consideration to all the theories of sentencing. In others, a judge will want to emphasise or achieve one theory of sentencing more than the other in certain classes of offences."

Even if a judge applies the proper sentencing principles, how is he to arrive at the appropriate term of imprisonment? There is no mathematical or scientific method of arriving at the appropriate term. It is therefore important to bear in mind that a sentencing tribunal should aim to achieve consistency in the approach or principles of sentence, rather than to achieve consistency in the actual term of imprisonment. See Bibi (1980) 11 Cr.App.R. 360. However, sentencing in a particular class of offences over a number of years will lead to a range of sentence which may be a guide in determining appropriate terms of imprisonment.

What then is the proper approach to determining whether life imprisonment is appropriate for attempted murder? Counsel have submitted that there is no guidance in this jurisdiction and look to this Court to lay down some principles.

In England, where life imprisonment is the statutory maximum sentence for a class of offences, the Courts in the 1950's imposed life sentence sparingly. However, in the landmark case of Hodgson (1967) 52 Cr. App. R. 113, the Court of Appeal laid down the guidelines for life sentence:

1. Where the offence or offences are in themselves grave enough to require a very long sentence.

2 Where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character, likely to commit such offences in the future.

3. Where if offences are committed the consequences to others may be especially injurious, as in the case of sexual offences or crimes of violence.

It would appear that the English courts have not been consistent in the application of these guidelines. There is one line of authority which has treated the second guideline listed above as almost calling for life imprisonment despite the less serious nature of the offence. See Ashdown (1973) 58 Cr.App.R. 339, Turemko [1965] Crim.L.R. 319, Thornton [1975] Crim.L.R. 51, Chaplin [1976] Crim.L.R. 320, Anderson [1977] Crim.L.R. 489, Watson (1979) 1 Cr.App.R.(S.) 344, Blogg (1981) 3 Cr.App.R.(S.) 114, Wilkinson (1983) 5 Cr.App.R.(S.) 105.

There is another line of authority which seeks to restrict the imposition of life sentence. Pither (1979) 1 Cr.App.R.(S.) 209, Hutchinson [1979] Crim.L.R. 190, Short [1979] Crim.L.R. 262, Hercules [1980] Crim.L.R. 596.

It is clear from these cases that the potential danger of the offender plays a big part in determining the question of whether life sentence should be imposed.

In Papua New Guinea, the issue has been considered. In Goli Golu v. the State [1979] PNGLR 653, Raine D.C.J. followed the English position by simply adopting a passage from the principles of sentence by D.A. Thomas. Kearney J. (as he then was) considered the English position as well as in Australia and said at p. 660:

"In England, it appears from R. v. Hodgson and the citation from Thomas in my brother Raine's judgment, that this general principle of sentencing - the 'worst case' principle - no longer applies as a general guide to the imposition of a life sentence.

There is no such social 'back-u' in this community; and accordingly, in my opinion, no warrant to depart as in England, when considering whether a life sentence should be imposed, from the basic principle of proportion that a man be given the sentence appropriate to his offence, and no more.

The conclusion appears to accord with the view of the majority of the High Court in Veen v. The Queen. When considering whether the English approach to life sentences should apply in Australia; it was emphasised that the sentence should be strictly proportionate to the gravity of the offence. In that case a life sentence had been imposed, exclusively because of the trial judge's assessment of the probably future violent behaviour of the applicant; a fixed term of years was substituted by the High Court, on the basis that the particular circumstances of the crime, grave as it was, did not put it in the most grave category.

This of course is not to deny the importance of the protection of the community, in sentencing. It is one factor. It is not suggested that the appellant here is a mentally disordered and dangerous offender; so there was no scope in this case for the application of the English approach, and the learned trial judge did not purport to apply it."

Mr Justice Wilson, a third member of the Court, also made references to the English and the Australian practice. While the potential dangerousness of the offender is one of the factors taken into account, the principle of proportionality is emphasised in this case.

The issue was further considered again in the case of Avia Aihi v. The State (No 3) [1982] PNGLR 92. At p. 96 the Chief Justice reaffirmed the principle of proportionality that life imprisonment should be reserved for the worst as set out in Goli Golu v. The State. He then made reference to the English cases dealing with the dangerousness of the offender and at p. 97 continued:-

"I do not think that this Court ought to adopt such a principle. There are murderers of normal mental condition who deserve the maximum penalty of life imprisonment. For example, a man of normal mental capacity, who cold-bloodedly kills another man in order to marry his wife, in my opinion, would deserve the maximum penalty of life imprisonment. It should not be laid down categorically by this Court that only murderers with mental conditions making it probable that they will kill again deserve the maximum penalty of life imprisonment. If this Court were to pronounce such a principle, 'smart' murderers would receive lower penalties on proof that they would not commit murder again. Each murder case must be considered on its own facts. I consider, however, that a person who is shown to be unlikely to offend again should merit consideration more favourable than one thought to be likely to offend again."

Kearney D.C.J. after having referred to the English approach at p. 105 said: -

"However, I adhere to the opinion I expressed in Goli Golu v. The State at p. 660, for the reasons there stated, that there is no warrant in this country for requiring that a murderer must be regarded as dangerous to the public, before life imprisonment can be imposed on him. The proportionality principle should apply to all sentences, including life sentences. That also appears to be the view in Australia - see the majority of the High Court (Stephen, Jacobs and Murphy) in Veen v. The Queen. Further, I note that in England the 'dangerousness' principle is not applied to persons over eighteen years old convicted of murder. That offence there carries an automatic and non-appealable life sentence.

I therefore apply as the basic principle that the sentence must bear a just proportion to the offence, bearing in mind so far as wilful murder is concerned, the intrinsic seriousness of that particular offence and also bearing in mind the circumstances of the offender. It follows that, on conviction for wilful murder, a sentence of life imprisonment is only warranted where the circumstances of the crime and its nature render it wilful murder of the worst type, bearing in mind also the offender's circumstances. I also have in mind the principle that subjective materials - the circumstances of the offender - are weighed only to see whether a sentence otherwise merited because of the actual facts and nature of the crime, should be dealt with less severely. Many factors have to be weighed."

Andrew J. who dissented on sentence said at p. 109: -

"Before considering that question I think it is necessary to say that the contention that life imprisonment should be used only when the mental condition of the offender is such that he will probably commit grave offences in the future is inappropriate to the circumstances of the country. That may be a general practice in England (see R. v. Picker (1970) 54 Cr.App.R. 330), but this case alone illustrates the practice of 'payback' which is one of the greatest challenges to law and order and to the administration of justice in Papua New Guinea."

I agree with the judgment of Kearney D.C.J.

For the reasons set out in the Papua New Guinea cases, I would not adopt the English approach entirely in the Solomon Islands. The circumstances in Solomon Islands are not different from those in Papua New Guinea. I would lay down the following guidelines for consideration when considering the appropriateness of life imprisonment: -

1. The maximum penalty of life imprisonment should be reserved for the most serious. The basic principle to be observed is that the punishment should be strictly proportionate to the gravity of the offence.

2. In assessing the seriousness of a case, it is not possible to give a precise analysis. This must be worked out in the particular facts of the case. Some of the factors which may be considered are: -

(a) The nature of the offence or offences, whether the nature of the offence/offences are in themselves grave enough to warrant a very long sentence.

(b) The potential dangerousness to the community. This is only one of many considerations to be taken into account. All the circumstances and all other factors must be taken into account.

(c) The nature of injuries received and the nature of injuries that may be committed in the future.

After having considered the aggregate effect of all the considerations, the Court may then determine the appropriate term of imprisonment.

Applying these principles to the facts of this case, I find that this was a very serious case. The offence was committed in prison. The weapon used was lethal and there was no provocation for the attack. The victim was completely surprised and had no opportunity to protect herself from this attack. Added to this is the fact that the appellant has had a background of violent behaviour, and according to the doctor's report, is dangerous and is likely to offend again in the future. I find that the learned Chief Justice weighed all these matters and come to the view that life imprisonment was the appropriate penalty. I find that the appellant has failed to show any error in the exercise of discretion by the learned Chief Justice. I would therefore dismiss the appeal and confirm the sentence of life imprisonment.