Regina v Wesley [2005] SBCA 12; CA-CRAC 001 of 2005 (4 August 2005)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Brown J)

COURT FILE NUMBER: Criminal Appeal No 1 of 2005 (On Appeal from High Court Criminal Case No. 29 of 2004)

DATE OF HEARING: Tuesday 19^th July 2005

DATE OF JUDGMENT: Thursday 4^th August 2005

THE COURT: Lord Slynn of Hadley P, Palmer CJ, and Adams JA.

PARTIES: REGINA

(Appellant)

-V-

WESLEY, KATALAENA, KILI BEJILI and OTHERS

(Respondent)

ADVOCATES: Appellant: Peter Little and Ricky Iomea

Respondents: Emma Garo, Lorraine Kershaw, Maelyn Bird

ALLOWED/DISMISSED: Appeal Dismissed.

PAGES: 1-8

JUDGMENT

On 9^th February 2005 the respondents, Esley Wesley, Charlton Katalaena, Clearance Kili Bijili, Armstrong Kitu and Katalaena Kihi, pleaded guilty to one charge of doing grievous harm to David Borauvea Tekei on 27^th July 2002, an offence under s226 of the Penal Code.

The agreed facts were to the following effect. On the night of 26 July 2002 the respondents were drinking together when Armstrong Kitu approached the deceased and punched him. A fight started which involved Wesley. The deceased left and returned with a stick. He hit Katalaena Kitu and left. The respondents went looking for the deceased, shouting threats. The deceased ran to a house. The respondents chased him. Katalaena Kitu was carrying a stick but an occupant of the house took it from him. Bijili took up a piece of 4” x 2” timber about 10 feet along and struck the deceased, who was trapped in a corner. The deceased almost fell. The presence of the other respondents prevented his escape. At one point a coffee table was broken which had been used to attack the deceased. He used a broken part of the table and threw bottles in an attempt to defend himself. Armstrong Kitu and the deceased then struggled together. Armstrong suffered a laceration to the head, about 8 cm x 6.5 cm. He and the deceased fell into the sea. Some of the respondents threw bottles at the deceased. No attempt was made to rescue him. Some time later (not specified in the facts) the deceased was removed from the water. He was dead. On examination he had suffered an 8 cm laceration to his forehead and scalp and a minor laceration to the ear. He was also bleeding inside the ear. He had bruising on the neck with associated swelling and some bruises on the trunk. The certificate of a registered nurse said that “death [was] probably due to internal bleeding or faint while fell in the sea and nobody help him”.

As is obvious from both the charge and the agreed facts, it is important to note that it was no part of the prosecution case that the respondents were responsible for the deceased’s tragic death. However, the respondents were initially charged with murder and this was the offence on which they were arraigned on 25 January 2005. They pleaded not guilty. On 9 February 2005 a fresh indictment for the offence under s226 was presented, and (as mentioned above) the respondent pleaded guilty to that charge.

The appellants were arrested on 27 July 2002. Following their pleas they were sentenced on 11 February 2005. Katalaena, Kilibijili and Armstrong Kitu had spent the whole of the intervening period in custody. Katalaena Kitu and Wesley had been on bail from 23 December 2003 to 7 October 2004. We consider that it is a very important aspect of this case, not only that there was a very substantial delay between the date of the offence and the date of sentence, but also that, after charge, there was a very long delay before sentence for all or much of which time the respondents were in prison.

The learned sentencing judge, Brown J, sentenced all appellants to the rising of the Court on 11 February 2005, resulting in their immediate release. The result of this order was that Katalaena Kitu and Wesley suffered imprisonment that was about nine months 2 weeks less than the other appellants. Brown J’s comprehensive judgment dealt with the history of the prosecution, the seriousness of the offences, the importance of general deterrence, the utilitarian value of the pleas, the evidence of rehabilitation and other matters in mitigation. In the result Wesley and Katalaena Kitu served a sentence of about 1 year 9 months and 2 weeks, the others’ sentences were 2 years 6 months and some days. The Director of Public Prosecutions appeals on the ground of manifest inadequacy.

The prosecution points essentially to three matters, apart from sentences themselves. The first is that the effect of the sentences was that Wesley and Katalaena Kitu served approximately 9 months less than the three other respondents. It seems that, taking a broad view of the matter, all offenders were equally involved on the attack on the victim, although the substantial injury was inflicted by Clearance Kilibijili. The prosecution submits that, there being no significant differences between the respondents in point either of their involvement in the offence or their subjective circumstances, the learned sentencing judge’s sentences were contrived and arbitrary.

We do not consider that the argument based on parity is valid. There may well be cases where disparity of sentences between offenders might give rise to a justifiable sense of grievance in the offender subjected to the heavier sentence. But disparity alone does not indicate that a sentence is either too heavy or too lenient. Each sentence must be looked at, from the point of manifest inadequacy, on its on merits.

Brown J explained why he took the course he did and which resulted in the extending of leniency to Wesley and Katalaena Kitu. His Lordship said –

“The fact that differentiation in time actually served has occurred (by virtue of the time that Wesley and Katalaena [Kitu] were freed on bail) relates more to the interests of justice at the time of the grant of bail than to any need at this juncture to enforce an extended stay in prison for these two for another 10 months to maintain parity of sentences. Frankly, they are fortunate, they answered their bail and they shall be released with the others...[the] variance in these sentences may be attributed principally to two factors. The state of the prison in at Gizo, unsanitary and overcrowded, and the satisfaction in the mind of the court of the unlikelihood of re-offending. To exercise mercy in these circumstances is my prerogative.”

It is implicit that Brown J was of the view that the two named respondents had been sufficiently punished for their part in the offence which they had committed. His Lordship had assessed the appropriate sentence following a trial at 5 years and noted, rightly in our view, that matters of mitigation, including the fact that compensation had been paid in accordance with customary practice at an early stage, would “reduce it substantially”. The last sentence in the paragraph set out above merely expresses (in language perhaps a touch strong) the notion that there are cases, of which this was one, when the discretion allowed to sentencing courts permitted a degree of leniency outside the usual range in particular cases. In the case of Wesley and Katalaena Kitu it is clear that his Lordship took the view that the vindication of the criminal law did not require further punishment and that no good purpose would be served by extending their imprisonment. The fact that such a long period was spent in custody under a pending charge of murder, which would, if proved, have resulted in mandatory life sentences seems to us to provide (together with the other mitigatory matters) justification for the approach adopted by his Lordship. It was not neat but it was not unjust.

The second point taken by the Crown is that his Lordship took into account “that state of the prison at Gizo, unsanitary and overcrowded,” when there was no evidence before the Court about this matter. We do not think that a Judge could not give judicial notice to and take into account in a general and contextual way information about adverse conditions in prisons that came to him or her in the course of exercising his or her judicial functions or was otherwise in the public domain. Often, the facts will be notorious. Matters of particular relevance to the offenders out of the ordinary run or unusual conditions fall into a different category and it will usually be necessary to adduce these facts in the sentence proceeding. The general conditions in prison will always form part of the context in which a sentence of imprisonment is served and we see no error in a Court taking them into account in this way. We read Brown J’s remark in this case as no more than an emphatic way of expressing his Lordship’s view that it was unnecessary to subject the named respondent to further imprisonment, although they had – by virtue of obtaining bail for a period – served a lesser effective sentence than the other offenders. So considered, we are unpersuaded that his Lordship erred.

The third complaint is that Brown J paid insufficient regard to the need for general deterrence. The prosecution rely on the level of sentences and the following passage from this Lordship’s reasons –

“By speaking to the witnesses in Court, I sought to allay unreasonable or ignorant understanding of the sentencing function of the Court. I deal elsewhere with that I consider to be a general need to strengthen the educational function of the community in the ways of the criminal law, but the weight of that need should not rest on these prisoners.”

This passage does not suggest that his Lordship did not have or sufficient regard to the requirement of general deterrence; it implies simply that it is not the overwhelming or only consideration. In this respect, his Lordship was plainly right.

So far as the sentences themselves are concerned, it is important to note the effect of remissions under the Prisons Act. Usually, this will be irrelevant but, where an offender is being sentenced after having spent a substantial time in prison on remand, it is important to calculate the likely time in prison that would have been served had a sentence been imposed at the outset in order to make an appropriate allowance for the time served and ensure that the effect of the sentence will not be unduly harsh having regard to the time already spent in gaol. We are unpersuaded that his Lordship gave insufficient weight to the requirement of general deterrence.

The prosecution also submits that there was no evidence of regret aside from the pleas of guilty. His Lordship had available antecedent reports (which should have been part of the appeal book but were not) and, following submissions, was “satisfied...of their regret over this awful result of the violent altercation not just regret at their incarceration.” We are unable to accept a mere assertion from the bar table when the record is self-evidently incomplete.

We have already mentioned that it was no part of the Crown case that the death of the victim was due in any relevant sense to the respondents. The injuries that had been inflicted may have constituted grievous harm. Certainly by their pleas the appellants admitted this was so. But it was not suggested that the injuries were likely to have given rise to any significant disability or anything more than short term pain and inconvenience though there may well have been a potential for serious injury and probably a permanent scar. The circumstances in which they were inflicted were frightening; it was a malicious attack. But, in our view, the injuries were very much in the lower range of seriousness for offences under s.226 of the Penal Code.

In the result, the prosecution has failed to demonstrate that Brown J erred in any material respect.

We bear in mind also that the appellants were released on 11 February 2005. The Court would need to be persuaded that the sentences imposed were inadequate by a very considerable margin before it would exercise its discretion to return them to prison. We are not so persuaded.

Accordingly, the appeals are dismissed.

President, SI Court of Appeal
Judge of Appeal
Judge of Appeal