Iroga v Regina [2014] SBCA 11; SICOA-CRAC 24 of 2013 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Pallaras J.)
COURT FILE NUMBER:	Criminal Appeal Case No. 24 of 2013 (On Appeal from High Court Civil Case No. 139 of 2013)
DATE OF HEARING:	1 MAY 2014
DATE OF JUDGMENT:	9 MAY 2014
THE COURT:	Justice Goldsbrough JA, President Justice Williams JA Sir Gordon Ward JA,
PARTIES:	Kelly Iroga Appellant -V – Regina Respondent
Advocates: Appellants: Respondent:	Ms. H. Blundell, Public Solicitor Appellant Mr. A Kelesi, DPP Office Respondent
Key words
EX TEMPORE/RESERVED
ALLOWED/DISMISSED
PAGES	1- 4

JUDGMENT OF THE COURT

1. This appeal against sentence arises following the imposition of a sentence of nine and one half years imprisonment following conviction for manslaughter. That sentence is expressed to run consecutively to a sentence previously imposed of twelve years for an attempted murder.
   
2. In February 2013 in the Burns Creek settlement in East Honiara, following a brief exchange, Kevin Faukona was fatally assaulted by the appellant. No weapon was used, the assault not sustained but nevertheless fatal. Following trial for murder, the appellant was convicted of manslaughter.
   
3. The assault was without provocation. Having been asked by the appellant if he was responsible for damage to a tree, the deceased replied that he was not. Seeing trouble ahead the young victim tried to get away from the scene. He was at the time 14 years and the appellant 22 or 23 years. It was a kick aimed by the appellant to the deceased's neck, which caused his death.
   
4. The grounds of appeal are three in number. One goes to whether the offence itself can properly be categorized as being at the higher end of the scale for offences of manslaughter, a second being whether the sentence is manifestly excessive and finally whether taken together with a previously imposed sentence of 12 years this consecutive term of imprisonment offends the totality principle.
   
5. It is well settled that an appellate court should not interfere with a sentence imposed unless there has been error leading to a manifestly excessive or lenient sentence, when matters that should not have been taken into account have been taken into account or where matters that should have been taken into account have not been so taken into account. Such is clear from Berekame v DPP SICA 2 of 1986 following Skinner v The King [1936] 16 CLR 336 as applied in Saukoroa v R [1983] SILR 275
   
6. To that end, it is useful to consider cases where sentences have been imposed for the same crime and identify whether they are sufficient in number to establish a sentencing pattern or a range of sentences within which a sentencer may safely say the offending falls.
   
7. Although the sentencing court did not have available to it a large number of authorities, it seems clear that the material referred to by counsel identified a range of between 2 and seven years imprisonment, and that no comprehensive guideline had been laid down by the Court of Appeal in similar cases.
   
8. It appears equally clear that each authority when considering the range of sentences notes the possibility of a sentence higher than the more oft used range. That, in our view, must be correct. Over time when a range of sentence may be identified there will and should be cases which fall outside the range either below or above the 'norm'.
   
9. This sentence falls outside the range identified and above the 'norm'. The identified range from the limited material before the Court was between 2 and 7 years imprisonment. It will be a most exceptional case that does not attract immediate imprisonment where a death is part of the facts of the case. At the other end of the scale are those cases where the culpability reaches almost to that of a murder.
   
10. There are matters that may be put forward in this case of mitigation. No weapon was used. The attack did not last long in time. Consumption of alcohol did not seem to be a factor. Equally, there are a number of matters that could be said to aggravate this offence. The two males were family, the degree of violence used in the kick was severe, the victim tried to retreat, and certainly had not acted in a way to attract such violence. The victim was much younger than his attacker.
    
11. Taking those matters into account it is not difficult to see why the sentencing judge determined that this offence should be categorized at the higher end of the scale in terms of sentence. It was a most brutal and unprovoked attack in circumstances where the offender could easily have backed down without fear of losing face. His victim tried to withdraw but was kept by force to suffer at the hands and feet of his attacker. The attacker used his overwhelming advantage in terms of strength and size to overcome his victim, who was not more than fourteen years of age.
    
12. At the time of this offence, the Appellant was already on bail for other offences. That cannot be said to mitigate this crime, it must surely be regarded as aggravating the offence.
    
13. Departing from any range of sentence may attract criticism for the departure but may be justified given the circumstances of the offending. Even where clear guidelines exist, this Court has said that departure from such guidelines requires no more than explanation from the sentencer to justify such a departure. This is quite different from accepting that disparate sentencing is encouraged. Provided that the departure from the guideline or identified range is justified not only because of the circumstances but also because the sentencing judge has set out why the departure is necessary then the disparity, if any, is justified,
    
14. This sentence of nine and nine and one half years is neither manifestly excessive nor unjustifiably outside of the range of sentences for manslaughter.
    
15. At this time this sentence was passed, the same Appellant was already the subject of a twelve year sentence imposed by the same judge for other offending involving violence. It is accepted by the Appellant that the previous offending was more serious than this matter and that sentence of twelve years was not the subject of an appeal. This present sentence was ordered to be served consecutive to the sentence of twelve years.
    
16. At the sentencing hearing, the judge was asked to consider the total effect of the sentences when taken together. In some jurisdictions, this principle of sentencing is referred to as the totality principle. The authorities on that principle most often refer to a spate or series of similar offending taking place over a relatively short period of time involving the same or similar offences and possible the same or similar victims. See in particular Mill v R [1988] HCA 70.
    
17. At first glance this offending does not fit within that category of offending. It is removed in time and victims, although both sets of offending involve violence. That, in our view, should not preclude the sentencer from considering the totality of the sentence. Provision exists within the Criminal Procedure Code for sentences to be consecutive unless the Court orders that such sentences be served concurrently. That provision itself requires the Court to consider the question of concurrency.
    
18. It is also necessary to consider the effect of the sentence on the offender in terms of how he or she is expected to respond to the sentence in rehabilitative form. This offender was at the time of sentence 22 years of age. He will at some point be released from prison. It is to be hoped that by that time he will have resolved his behaviour issues in particular his regular resort to the use of violence. A total sentence which serves to remove the will to rehabilitate is to be reserved for only the most hopeless of cases. This does not appear to be one of those cases.
    
19. Having been asked to consider the question of totality it was, in our view, incumbent on the sentencing judge to make some determination thereon. He was not required to accede to such a request but once made the question merited consideration either way. Given that no reference to totality appears in the sentencing remarks it is not possible to ascertain whether the issue was considered and rejected or merely overlooked. From the sentence itself it is apparent that if it had been considered it did not find favour.
    
20. The sentence of twelve years itself was accompanied by a concurrent sentence of six years for unlawful wounding. The total period of imprisonment with the addition of this present sentence came to twenty one and one half years. It is not difficult to arrive at the conclusion that for a man of twenty two years such a total is indeed significant.
    
21. Any additional sentence of imprisonment may be ordered to be served consecutively, concurrently or any combination thereof which, in our view, permits the sentencing court to order partially concurrent sentences. In this case, given the sentence of six years the option of making the present sentence consecutive to that six year sentence but concurrent with the balance of the twelve year sentence is available.
    
22. These two sentences were imposed within four weeks of each other. It is not clear from the record whether there was any reason for the two sentences being separated in time as they were both imposed by the same judge. In any event we consider that the total imposed amounts to a manifestly excessive total and for that reason are prepared to mitigate its effect by ordering that the nine and a half years be served consecutive only to the six year sentence presently being served, making a total period of imprisonment of fifteen and one half years imprisonment. Given that the offender spent five hundred and seventy five days in pre-trial custody we order that that period be taken into account in calculating the time to be served.
    

...........................
Goldsbrough JA
President of the Court of Appeal

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

...........................
Sir Ward JA
Member of the Court of Appeal