Burenikarawa v Regina [2006] SBCA 4; CA-CRAC 010 of 2006 (25 May 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	Appeal from a judgment of The High Court of Solomon Islands (Palmer, CJ.)
COURT FILE NO.	Criminal Appeal Case No. 10 of 2006
DATE OF HEARING:	Wednesday 17th May 2006
DATE OF DELIVERY OF JUDGMENT:	Thursday 25th May 2006
THE COURT:	Lord Slynn of Hadley, P Williams JA Ward JA.
PARTIES:	BURENIKARAWA -V- REGINA
ADVOCATES: Appellant: Respondent:	M Swift for Appellant R Talasasa for respondent
KEY WORDS:	Where the appellant was sentenced to 7 years imprisonment after pleading guilty to manslaughter – whether the sentence was manifestly excessive in all the circumstances – whether the sentencing judge properly took into account all mitigating factors.
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:	Dismissed
PAGES:	( 1-6 )

JUDGMENT OF THE COURT

The appellant was charged with manslaughter of Teuribaba Tiriwetere on 2 September 2004. He appeared before the learned Chief Justice on 21 February 2006 and pleaded guilty. He was sentenced to seven years imprisonment and now appeals against that sentence. The appellant had been in custody since the date of the offence and the court directed that the time in custody be taken into account. It appears to be accepted that means his sentence is deemed to have commenced on the day he was first taken into custody.

The facts of the case can be taken from the judgment:

'A fundraising was held in the ... maneaba by the Kiribati community at Canaan village on 2nd September 2004. Tenoa was sitting in the maneaba, a raised timber floor building with others. The deceased went to where Tenoa was sitting and lit his cigarette using a bottle kerosene lamp. Tenoa then said to him ... 'kun (can’t) say ologeta young boy nao save smoke cigarette'. The deceased was an elderly man, not a young man and the connotation was that by smoking cigarette he was acting like a young man.

It was not in dispute that the deceased was known to have some mental imbalance which requires a certain amount of tolerance from the community. It appears the joke was not taken kindly by the deceased because he responded angrily by saying, ... 'kind ia RAMSI, save punchem nose and mouth blong man and blood hem come out.' Tenoa was offended by this response and challenged the deceased to a fight. An altercation occurred with those around at that time intervening and separating the parties. The deceased was taken out of the maneaba but Tenoa somehow managed to seize a coconut scraper nearby, about 2 feet in length with a serrated metal tip at one end and threw it at the deceased. It landed on the right rear part of the deceased’s head just below his right ear and caused the fatal injury ...'

The statement of facts submitted to the High Court included details of a much more aggressive reaction from the appellant to the deceased before he was taken out of the maneaba. However, the judge’s notes record that Ms Swift for the appellant made some (unrecorded) comments when asked if the facts were admitted and so we shall proceed on the basis of the outline above which was stated by the Chief Justice to have been agreed.

We have had the benefit of detailed and helpful submissions from Ms Swift which include an extensive list of previous sentences passed in manslaughter cases in Solomon Islands. A similar list was placed before the Chief Justice and he referred to many of them when passing sentence. Having done so he concluded:

'The maximum sentence which can be imposed for manslaughter is life imprisonment. Had a not guilty plea been entered, the starting point for this case would have been 10 years, well in the level of seriousness of William Erieri, [R v William Erieri; Case No3 of 1993, 11 February 1994] where an argument erupted over some family swamp taro which the deceased, the wife had dug up, became heated, got out of control, some swearing followed and eventually the attack on the deceased with a piece of stick on her neck area which killed her.

This is a serious case of manslaughter. Balancing all relevant factors and giving full credit for all mitigating factors ... I am satisfied ... the appropriate sentence is ... seven years.'

The principal thrust of the appellant’s submissions is that the weapon used by the appellant was not one he had in his possession previously. It was lying nearby and he simply picked it up as the nearest thing to hand. Counsel seeks to differentiate the present case from that of Erieri. In that case, the weapon was apparently a stick which was also fortuitously to hand but the medical evidence spoke of repeated blows of 'tremendous force' which ruptured the windpipe and the major blood vessels in the neck. The accused also tried to make the death appear to be a suicide by hanging.

The report of that case does not specify what, if any, mitigating factors were considered. The accused pleaded not guilty to murder, was convicted of manslaughter and sentenced to 10 years imprisonment.

We agree that the present case is not as serious. However comparisons with previous cases are not always helpful in determining the exact sentence appropriate in any particular case. It is clear that the sentences passed in manslaughter cases have varied considerably in Solomon Islands. The cases cited to us appear to show an overall trend to lower sentences over the last decade and there have undoubtedly been a number of sentences passed well below the level in this case. Counsel for the appellant suggests that raising the general level is unfair to the appellant.

The Chief Justice in his sentencing remarks referred to a number of authorities indicating a range from two to ten years imprisonment for manslaughter. This Court in the matter of Rongodala (No 8 of 2006) has referred to the broad range of factors which impact upon the level of sentence for this offence. Those factors will not be repeated here but it must be emphasised that there can be no rigid tariff for an offence such as manslaughter. Each case must be decided on its own particular facts and this Court will only interfere with a sentence if it is manifestly excessive or wrong in principle or in law.

This was a nasty case where the whole incident was initiated by the comment of the appellant. It was common knowledge that the deceased had some mental problems and, when the appellant realised his remark had caused offence, he could and should have attempted to defuse the situation he had caused. Instead, he took offence himself and ensured the situation escalated by challenging the older man to a fight. Even after the intervention of others to try and stop any further trouble, he maintained his aggressive stance and picked up what he could not have failed to appreciate was a very dangerous weapon and threw it at the other man with both accuracy and force.

Two aspects require further comment.

The first is the reference by the Chief Justice to the fact that, had there not been a plea of guilty, the starting point would have been ten years.

If a starting point is to be used, it should be determined before any matters of mitigation or aggravation are identified. If that was the appropriate starting point, the court should have proceeded to assess the appropriate level of sentence from that.

However, we consider that the selection of the actual sentence passed in Erieri as the starting point in the present case was too high. The accused’s conduct in that case demanded a higher starting point than in the present case and we consider a starting point of eight years would have been more appropriate here.

The second matter relates to the reduction of sentence which is given for a plea of guilty. That a plea of guilty should result in a reduced sentence is a well established principle. It may reflect genuine remorse and, possibly, true concern for the victim. It saves a great deal of court time and expense and avoids the victim having to relive the previous trauma in the witness box. Counsel suggested that the normal reduction which can be expected from a plea of guilty is between one quarter and one third.

When a sentencing court is considering a plea of guilty, it should look to the nature of the evidence which would have been produced on a plea of not guilty. Where the evidence is so overwhelming that the accused could not realistically hope to avoid conviction, the amount of credit will be considerably less than in a case where the evidence is thin or the plea has clearly been entered to avoid causing additional distress to the victim. Where the evidence is strong, the appropriate reduction may be considerably less than a quarter and may even be withheld; R v Henry [1996] 1 Cr App R(S) 167.

In the present case, the whole incident occurred in front of the community and the case against him, in those circumstances, would have been overwhelming. He would have had no realistic chance of acquittal and the reduction for his plea should be reduced accordingly.

Taking the starting point of eight years we would add the two years for the aggravating factors that the incident was initiated by the appellant’s remarks to a man whom he knew was likely to react badly because of his mental condition, that the appellant continued his aggression after others had intervened, a weapon was used and his victim was a much older man.

For his plea of guilty, his lack of previous convictions, the fact the weapon had not been in his possession previously, his personal circumstances including his exemplary conduct in prison and his attempts to reconcile with the victim’s family, we would reduce the sentence by three years.

Although we have suggested a lower starting point, it is clear that the sentence passed by the Chief Justice was not manifestly excessive or wrong in principle.

The appeal against sentence is dismissed and the sentence of seven years imprisonment is confirmed.

Lord Slynn of Hadley, P
Williams JA
Ward JA