Fo'oka v Regina [2014] SBCA 10; SICOA-CRAC 11 of 2014 (9 May 2014)

	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of Solomon Islands

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Pallaras J.)
COURT FILE NUMBER:	Criminal Appeal Case No. 11 of 2014 (On Appeal from High Court Criminal Case No.250 of 2012)
DATE OF HEARING:	29 APRIL 2014
DATE OF JUDGMENT:	9 MAY 2014
THE COURT:	Justice Goldsbrough JA, President Justice Williams JA Sir Gordon Ward JA,
PARTIES:	Peter David Fo'oka Appellant -V – Regina Respondent
Advocates: Appellants: Respondent:	Mr. A. Kesaka, Public Solicitor Office Appellant Mr. J. Naigulevu, DPP Office Respondent
Key words	Totality of Sentence: Provocation
EX TEMPORE/RESERVE:	RESERVED
ALLOWED/DISMISSED	APPEAL AGAINST CONVICTION DISMISSED AGAINST SENTENCE ALLOWED IN PART
PAGES	1- 10

[1] The appellant was charged with the murder of his wife on 29 May, 2012 in East Honiara. He pleaded not guilty and was convicted on 13th of December 2013. At the time of committing the offence, he was 17 years and 5 months of age and was sentenced as a young person under the Juvenile Offenders Act, 1972, to 9 years imprisonment.

[2] He appeals against conviction on the single ground that the learned trial judge erred when he found that a reasonable person would not have acted in the manner the accused did when he caused the death of the deceased, specifically he failed to take into account the accused's youth as a relevant factor.

[4] The appellant admitted that he had killed his wife by striking her on the top and side of her head with the blunt side of an axe resulting in fractures to her skull causing severe blood loss and death. A post-mortem examination of the deceased also revealed numerous bruises and abrasions on her body which the accused explained, in answer to questions by the judge, had been caused when he dragged her body into some long grass in order to conceal it. In his sentencing judgment, the judge rejected that explanation as "absurd" but gave no indication of how he considered they had arisen or their relevance to the killing.

[5] Whilst the defendant admitted killing his wife by the two blows to the head, his defence was that he did so after she had provoked him by swearing at him.

[6] The prosecution case depended on the account of the incident given to the police by the appellant in an interview under caution. At the trial, the appellant elected to give sworn evidence in which he maintained his earlier account.

[7] He told the police he had been married about six months and he and his wife were staying with his mother. On the day in question he, his wife and some relatives ate some food in the house. After resting, he told his wife to wash the cooking pot, cutlery and plates. She suggested that he should tell a young niece to do it but the appellant told her the small girl was sick. His wife retorted, "You go and fuck your small niece". Her response annoyed the appellant and he told her that she was talking nonsense.

[8] The appellant wished to go and collect firewood. He and his wife left the house together; he carrying a small axe and his wife a bag for the firewood. After walking a short way, they sat under a tree to rest and his wife took the opportunity to complain about the amount of work expected of people in his mother's house. He responded by suggesting she tell her father to return the red shell money and go back home to her mother. His account to the police continued:

"While I was saying this I was holding a small axe and cutting the root of a tree. When I finished saying this, she spoke to me and said if your dad wants to take these red money back, tell your dad to go and take these red money in the toilet in town and also ate this toilet. I heard [her] swear then I stayed quiet and she also quiet, then she said to me again, I think if I stayed with my old ex-(boyfriend), I will not do hard work. So I heard her words and said to her, words that you're saying is really prohibited because we already married. It is difficult to you to say these things to me. When you were young you could go with your boyfriend it's okay. She turned towards me and said, "You go back to your house and you fuck your mother and your sister". I did not like you anymore.

So there I was very angry and said to her, you are very smart, aren't you, so there I hold on to the axe while she was sitting down and whipped her with the axe on her head two times then she fell down.

Then I saw her head was crack and blood run down from her head, she even did not scream or cry at that time. So there I saw the blood running down from her head so I was worried she have died. So I carried inside the long grasses from the road and turned her lay her down on her belly."

[9] He told the police how he was frightened for his safety if the body was found so he ran away and left her there. He went to his house, changed his clothes and went into hiding. Two days later, having spoken to his relatives on the telephone, he went with an uncle to the police station for safety.

[10] His sworn evidence at the trial was similar. Under cross-examination, he maintained that he had not been angry when his wife swore at him in the house but that he was very angry after she swore at him on the way to the garden. He agreed with prosecuting counsel that he had the axe in his right hand and hit her with it on the head. Counsel asked no more about his anger, the presence of the other injuries to her body or his actions after he had hit her. The cross examination was subject to repeated interruptions by the judge which may account for its brevity.

[11] We pause to mention that the transcript shows numerous and repeated interruptions of counsel by the judge, particularly of counsel for the prosecution. In her opening and closing speeches, there are pages of transcript which resemble cross examination of counsel by the judge. The trial judge should keep in mind that, in this jurisdiction, he is the judge of fact and his decision is to be based on the evidence the parties place before the court. It is not his role to seek out evidence or to challenge it when produced. We do not say that it affected the result in this case but such conduct does not help the attainment of a fair trial.

"204. Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be of murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely-

(a) that he was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in the next succeeding section ...

205. Where on a charge of murder there is evidence on which the court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the court; and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man."

[13] In any charge of murder, if the defence raises provocation, the trial judge must consider it in accordance with the provisions of sections 204 (a) and 205. As with all matters in a criminal case, once it is raised, the onus is on the prosecution to prove that there was no such provocation.

[14] Section 204 (a) provides that, where it is proved that an intentional and unlawful act causes the death of another and the evidence shows that provocation by the person killed was so extreme that the accused was deprived his power of self-control as a result of that provocation, the offence will be manslaughter and not murder.

[15] Section 205 provides the test by which the court should determine, when the evidence shows that the accused lost his self-control as a result of provocation, whether the provocation was sufficient to make a reasonable man do as the accused did.

[16] The result is that the decision for the court has two components. The first must be the subjective consideration of whether or not the accused was provoked to the extent that he lost his self-control and, the second, the objective determination of whether a reasonable man subjected to the same provocation would react in the same way. The trial judge directed himself correctly on the twofold test and considered a number of authorities from England, Australia and Solomon Islands as to how he should determine what amounts to a reasonable man in the circumstances of the case before him.

[17] Section 205 mirrors the provisions of section 3 of the Homicide Act, 1957, apart from references to the jury in the English section. That section has been the subject of numerous cases in England and Australia. It was also considered by this Court in Loumia v DPP [1986] SBCA 1 in which Connolly JA giving the majority decision adopted with approval the form of direction to the jury suggested by Lord Diplock in the House of Lords in DPP v Camplin [1978] UKHL 2; [1978] AC 705, 718:

"The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did."

[18] That is still the law in Solomon Islands and the appeal ground upon which the appellant challenges the conviction suggests the trial judge failed properly to direct himself on that aspect of the case, particularly in reference to the youth of the appellant. We do not agree.

[19] It is not necessary to use the precise terms suggested by Lord Diplock. The question for this Court is whether, on a consideration of the whole judgment, the trial judge has approached the question correctly and adequately.

[20] Mr Kesaka for the appellant relies on the following passage from the judgment:

"42. The effect of these words on a reasonable 16-year-old Malaitan, might well be to cause him to be offended, angered, even outraged. He may be provoked into swearing back at, arguing with or even fighting with the deceased. But the accused's reaction of using an axe to strike the deceased twice on the head, with the only possible intention being to cause death or grievous bodily harm to the deceased is, in my view, unreasonable. To find otherwise would be to elevate the extenuation in this case beyond that which is tolerable in civilised community.

43. In this case, the question remains whether the provocation was sufficient so as to deprive an ordinary man of the power of self-control to such an extent as to cause such a person to take an axe and forcefully strike the swearer twice on the skull with that axe. In my respectful view, this question must be answered in the negative."

[21] That passage, counsel suggests, fails to deal adequately or at all with the objective test required by section 205 and this Court must consider the judgment as a whole and decide whether the overall effect of the direction of the trial judge is adequate to satisfy the requirements of section 205.

[22] The judge considered the words used by the deceased to the accused and, having done so, concluded:

"In the present case, it has been asserted from the Bar table that the words used by the deceased are especially offensive to persons from Malaita. I would consider the words to be offensive to members of any community, indeed offensive to persons of any island in Solomon Islands or indeed of any nation. No evidence has been put before me nor has any material been offered of which it is said that judicial notice may be taken that such words are uniquely offensive or more offensive to Malaitans than to any other Solomon Islander. However, it is abundantly plain from the nature of the words used that they are insulting and offensive. It is also abundantly plain that the accused found them to be (at least) insulting and offensive and caused him to react to them."

"I am conscious of the fact that some words may be regarded by one culture as more offensive than when those same words are used in another culture. In that regard, ethnicity is a factor to be taken into account in assessing the gravity of the conduct said to constitute the provocation."

[24] He cites the following passage from the Australian case of Mungatopi v The Queen [1991] NTCCA 9; [1991] 2 NTLR 1 where Kearney J was considering how to assess the ordinary man in relation to a case where the provocation was directed at an aboriginal male from a remote settlement:

"He is neither drunk nor affected by intoxicating liquor, does not possess a particularly bad temper, is not unusually excitable or pugnacious, and possesses such powers of self-control as everyone is entitled to expect an ordinary person of that culture and environment to have. He possesses such of the appellant's general cultural characteristics as might affect [his] reaction to the [insult]."

[25] Mr Naigulevu for the respondent also drew our attention to a passage from the transcript of the closing speeches when reference was made to the accused's age. The judge commented:

"Yes, the reasonable person test has got to be more specific doesn't it? The reasonable person of the particular accused's age, background, capacities and that sort of thing. It's not just the reasonable man who is walking down the street in Melbourne or something. It has to be more specific."

[26] It is clear that the judge had the terms of the Camplin test well in mind and directed himself correctly. On that basis he did not find that the provocation was or may have been sufficient to deprive a reasonable man of the age, characteristics and ethnicity of the appellant of his power of self-control and, on the evidence before him, did not so deprive the appellant. There was evidence upon which he could properly reach that decision and we see no reason to intervene.

[28] The appellant was seventeen and a half years of age at the time of the offence and was therefore a young person in terms of section 2 of the Juvenile Offenders Act, 1972. The Act provides special procedures for dealing with such offenders which, inter alia, protected this appellant from the mandatory sentence of life imprisonment to which an adult convicted of murder would be liable.

"Having been convicted of the offence of murder, a crime which is included in the Schedule to the [Juvenile Offenders] Act as a "grave crime", the Court has the discretion to sentence you to a specified period of detention or imprisonment. I have carefully considered that the Act provides a special regime for dealing with offenders such as you and requires that you be treated differently from an adult who has committed the same crime. Rehabilitation and the interests of the offender are considerations to be given considerable weight."

[30] He then dealt briefly with mitigating and aggravating factors and concluded:

"Considering all the circumstances of the case, including your relative youth and the sentencing philosophy contained in the Act, I find that a sentence of imprisonment is the only appropriate penalty. You do not need reminding that, but for the fact that you were just a few months from your eighteenth birthday when you killed your wife, you would be facing a sentence of life imprisonment."

[31] In opening his first ground of appeal against sentence, Mr Kesaka stated that, at the resumed hearing, the judge simply read out a written sentencing judgment without giving counsel the opportunity to address the court in mitigation. Counsel for the Crown, whilst agreeing that the judge did nothing other than read out his pre-prepared sentencing remarks, suggested that this arose because, at the earlier hearing, the judge had called for written submissions on sentencing. He pointed out that the Crown had filed submissions on sentencing on 23 December 2013. Those submissions were available to this Court.

[32] It may well be that Mr Kesaka had misunderstood the judge's order for he had his written submissions with him at the resumed hearing on 3 February. We consider that this is the most likely explanation for the differing recollections. In the circumstances, we consider that it was incumbent on Mr Kesaka to raise the question of his submissions with the judge. We consider it was equally incumbent on the judge to ask about the failure of defence counsel to file submissions in accordance with his order if that was the case. Either way the sentencing process should not have proceeded in the absence of those submissions if the defence sought to make them. However the uncertainty between counsel and the court arose, it could not be said to be the fault of the defendant himself and the presentation of his case should not suffer as a result. We have looked at the matters considered by the judge in his written reasons for sentence and it is clear he took into account both mitigating and aggravated circumstances. He was not, however, aware of the suitability of a suitable supervisor, a point to which we will return.

[33] The second ground is that the sentence passed is manifestly excessive. As the judge pointed out, the provisions of the Juvenile Offenders Act protected the appellant from the mandatory adult penalty of life imprisonment but, as a seventeen and a half year old, he was only months from it. Although the Act draws a sharp line at the age when a young person becomes an adult in terms of liability for criminal acts, the court is entitled to look at a young offender and take note of his relative maturity when assessing the appropriate sentence. It would be facile to treat every young person whether just fourteen or nearly eighteen as being similarly mature. The judge had before him a seventeen and half year old who was married and admitted killing his wife in circumstances which, apart from possible provocation, amounted to murder and took place very shortly before the time when the court would have had no discretion regarding sentence.

[34] The Act only allows a court to sentence a young person to imprisonment where there is no other suitable method of dealing with him; section 12(1). It does not proscribe a sentence of life imprisonment being imposed on a young person –it only overrides the mandatory requirement of such a sentence under section 200 of the Penal Code. Having reached the conclusion that imprisonment is the only suitable way of dealing with a young person, it is a matter for the court's discretion what is the appropriate term in the circumstances of his case.

[35] In the present case, the judge was perfectly entitled to consider the proximity of the appellant's eighteenth birthday and order a sentence which was closer to life imprisonment than it would have been for a younger person. He described the attack on the deceased as "extremely brutal and violent" and continued:

"The deceased was totally defenceless and alone when you attacked her in what I find to be a most cowardly and craven manner. Considering all the circumstances of the case, including your relative youth and the sentencing philosophy contained in the Juvenile Offenders Act, I find that a sentence of imprisonment is the only appropriate penalty. You do not need reminding that but for the fact that you were just a few months from your 18th birthday when you killed your wife, you would be facing a sentence of life imprisonment.

[36] Counsel for the appellant has drawn our attention to a number of cases of homicide committed by juveniles. We have considered them all and find that a sentence of nine years in this case is not manifestly excessive. However we note that, in many similar cases, the court has, in consideration of the possibility of rehabilitation, allowed part of the sentence to be served in the community; For example; R v K [2006 53; R v SK [2007] SBHC 141; R v Pese [2009] SBHC6; R v Voho [2012] SBHC 71.

"Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt the court shall take into consideration the manner in which, under the provisions of this or any other Act or law enabling the court to deal with the case, the case should be dealt with, and, subject to such provisions, may deal with the case in any of the following manners or combination thereof, namely _"(our emphasis)

The section then sets out eleven methods of dealing with juvenile offenders including committing the offender to the care of a relative or other fit person, section 16 (d); sentencing him to imprisonment, 16 (j); and dealing with the case in any other manner in which it may legally be dealt with,16(k). It concludes:

"Provided that nothing in this section shall be construed as authorising the court to deal with any case in any manner which it could not deal with the case apart from this section."

[38] The common feature which appears repeatedly in the previous sentences brought to our attention is the concern shown by the court for the rehabilitation and reintegration of the juvenile into the community. The sentence of any young person convicted of a grave crime such as murder must be imprisonment or detention but, even if the incarceration is for some years, he will still be relatively young on his release. The courts have tended to allow his release into the community as soon as possible in order to encourage effective rehabilitation and reintegration. This has been achieved by combining the order under 16 (j) with one under 16 (d). The younger the offender, the higher the proportion of the sentence which has been ordered to be spent in the care of another person.

[39] In the present case, as has been stated, the age of the appellant was such that he was close to having to receive a mandatory sentence of life imprisonment under section 200 of the Penal Code and his youth has already allowed the court to consider imprisonment for a lesser tem. As we have stated, we consider that the sentence of nine years is appropriate for the circumstances of this offence. However, in order to encourage his eventual rehabilitation, we consider he should be released into the community during part of that period.

[40] The mechanism by which this has been achieved in previous cases has been to direct that the young person shall be committed to the care of a relative or other fit person for some of the last part of the term of imprisonment. The words italicised in section 16 above would appear to support such a combination of orders and we consider that would be appropriate in this case, if a suitable person could be identified who was willing to take on that responsibility.

[41] We were advised by Mr Kesaka that he had arranged for an uncle of the appellant to be present at court throughout the trial. He is a Christian Brother of the Anglican Franciscan Brotherhood who had offered to supervise the appellant if he should be released into his custody. He had proposed to take the appellant to the headquarters of his Society next to Selwyn College where he could supervise his rehabilitation into the community. There is nothing in the record to suggest the judge considered anything but an immediate prison sentence and the failure by the defence to place the uncle's name before the court meant that the court has not had an opportunity to investigate his uncle's suitability.

[42] We consider that this penalty should be mitigated to a limited extent in the interests of rehabilitation and, therefore, we vary the sentence to order that the appellant shall serve the final two years of this sentence under the supervision and control of a suitable person. The determination of who would be a fit and willing person to do this must be ascertained for the Court and we give directions on how this might be achieved satisfactorily without delaying his release from prison.

...........................
Goldsbrough P
President of the Court of Appeal

...........................
Williams JA
Member of the Court of Appeal

Court of Appeal of Solomon Islands

Fo'oka v Regina [2014] SBCA 10; SICOA-CRAC 11 of 2014 (9 May 2014)