Hou v Reginam [2015] SBCA 23; SICOA-CRAC 9 of 2014 (9 October 2015)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Palmer CJ.)
COURT FILE NUMBER:	Criminal Appeal Case No. 09 of 2014 (On Appeal from High Court Criminal Case No. 122 of 2014)
DATE OF HEARING:	28 September 2015
DATE OF JUDGMENT:	09 October 2015
THE COURT:	Goldsbrough P Ward JA Lunabek JA
PARTIES:	EDIE PWIE HOU - V - REGINAM
ADVOCATES: Appellant: Respondent:	Mr Henry Kausimae, Public Solicitor Ms. Florence Joel, Director of Public Prosecution
KEY WORDS:	Manslaughter – Diminished Responsibility Offence committed when offender suffered disease of mind. Life imprisonment – No minimum non-parole period given but one be set if conviction improves.
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	Dismissed
PAGES	1- 10

1. On 27th October 2013 the Appellant caused the death of one Nelson Rahe ("victim/Deceased") in Honiara. He was initially charged with the murder of the victim. The nature of the charge was later reduced to manslaughter on the basis of diminished responsibility. On 2nd March 2015, he pleaded guilty to manslaughter. On 23rd March 2015 the learned Chief Justice sentenced him to life imprisonment.

3. The maximum penalty which might have been imposed for manslaughter was life imprisonment.

4. The Appellant was sentenced to life imprisonment and, although, no minimum non-parole period is stated, taking the peculiar circumstances of this case, one will be set depending on the success of any treatment prescribed while the appellant is in custody, the report of the Commissioner of Corrections and his rehabilitation.

5. On 17 April 2015, the Appellant filed joint applications, one for extension of time to appeal and the other for leave to appeal his sentence. Both applications were granted on 22nd May 2015. The Appellant later filed an amended ground of appeal on 24 June 2015 by adding a new ground of appeal.

6. It is noted that before the hearing of the appeal against the sentence, there is no new application for leave to appeal sought. A new application for leave to appeal was made. It was granted before the Appellant could advance the grounds of his appeal against his sentence.

8. The first is that the learned Chief Justice erred in law in sentencing the Appellant to life imprisonment primarily on the basis of the Appellant's mental status of diminished responsibility and for the purpose of protecting the community; and the second, is that the sentence of life imprisonment is manifestly excessive.

9. The offence was committed in the evening of the 27th of October 2013 at Warren Haumane's House at Town House Ground, Honiara. The deceased visited Mr. Haumane's home as he is one of their relatives.

10. On that particular evening, the Appellant, the deceased and others were having dinner and telling stories at the extension of the house.

11. After dinner, the Appellant, the deceased and others stayed awake and were telling stories until midnight.

12. The deceased was telling others custom stories while others were listening. The Appellant at some point went outside the house and sat by himself.

13. Not long after the Appellant came in and intervened. He told the deceased to stop telling those stories because he was already aware of them. The deceased did not bother to hear him and continued.

14. The Appellant walked into the house and ran outside with two knifes. On his right hand he held a metal knife and on his left hand a short bush knife. He then raised his hands in a position to attack.

15. Others managed to run away while the deceased fell down. The Appellant grabbed the deceased, pointed the knife to him and stabbed the deceased on his chest. The Appellant stabbed him several times on his head, back and front chest with the knife.

16. Upon seeing this, others threw rocks at the Appellant to prevent further attacks. The Appellant moved away. Some people ran and took the body of the deceased outside. Police attended the scene and managed to restrain the Appellant. The Appellant and the deceased were both taken to the Central Hospital for medical attention.

17. The post mortem report of Dr. Roy Maraka dated 20th November 2013, revealed a of number of stab wounds were inflicted, a stab wound to the head, five stab wounds to the front chest area and another five stab wounds to the back. There were numerous slash and laceration wounds that were noted on the body of the deceased. The stab wounds in particular would have caused grievous injuries, notably injuries to his internal organs including the heart, stomach, lungs, and liver. The cause of death was exsanguination, as a direct result of the injuries sustained.

..."that this violent episode occurred while you were in the care of the very people who would help you; it was sudden, without any pre-warning with tragic consequences. You were in the company of your relatives (your carers) and no one anticipated your violent reaction or behaviour that night. When you attacked them, all they could do and tried to do was to escape from you because you were armed with dangerous weapons, two knives and extremely aggressive.

The circumstances therefore surrounding the commission of the offence cannot be brushed aside lightly by this court, especially when there was no explanation for the sudden change of behaviour or suggestion on what may have triggered your behaviour. The attack was spontaneous but intense and deadly, giving little time for the deceased to escape. There was no time for anyone to intervene and be able to try and calm you down... I note you were suffering from some disease of mind when the offence was committed and therefore your sense of responsibility was grossly impaired..."

19. The Appellant is from Western Province where he lived with his family before he came over to Honiara. He was 28 years old when he committed the offence. He is married and has one child.

20. The report of Dr. Paul Orataloa, at the National Referral Hospital dated 8 November 2013 stated that he noted the Appellant became aware of the symptoms of paranoid psychosis after drinking some so-called custom medicine in July 2013 for protection against curses and misfortunes. There was a manifest change in his behaviour which demonstrated he was labouring under some mental, psychological or psychiatric problem. This came to the knowledge of his relatives in Honiara who arranged for him to travel to Honiara so that they could look after him and tried to help him.

21. He arrived in Honiara on 23 October 2013 where he continued to suffer from the above experiences.

22. On 27 October 2013, in the evening, he acted upon his psychological experiences and killed the decease. He was apprehended and kept in custody. He was diagnosed as suffering from psychological condition paranoid psychosis.

24. The first ground of appeal is that the learned sentencing judge erred in law in sentencing the Appellant to life imprisonment primarily on the basis of the Appellant's mental status of diminished responsibility and for the purpose of protecting the community.

25. In his sentencing remarks, the learned Chief Justice referred to the case of R –v- Chambers (1983) 5 Cr. App. R (s) 190 which is the leading authority on sentencing manslaughter, on diminished responsibility, where Leonard J said:

"In diminished responsibility cases there are various courses open to a judge. His choice of the right course will depend on the state of the evidence and the material before him. If the psychiatric reports recommend and justify it, and there are not contrary indications, he will make a hospital order. Where a hospital order is not recommended, or is not appropriate, and the defendant constitutes a danger to the public for an unpredictable period of time, the right sentence will, in all probability, be one of life imprisonment.

In cases where the evidence indicates that the accused's responsibility for his acts was so grossly impaired that his degree of responsibility for them was minimal, then a lenient course will be open to the judge. Provided there is no danger of repetition of violence, it will usually be possible to make such an order and will give the accused his freedom possibly with some supervision.

There will however be cases in which there is no proper basis for a hospital order; but in which the accused's degree of responsibility is not minimal. In such cases the Judge should pass a determinate sentence of imprisonment, the length of which will depend on two factors: his assessment of the degree of the accused's responsibility and his view as to the period of time, if any, for which the accused will continue to be a danger to the public..."

26. It is submitted on behalf of the Appellant that there has been an error of law in his Lordship's sentencing. The error is that his Lordship sentenced the Appellant to life imprisonment with no non-parole period on the ground that the Appellant was dangerous to the Community. It is also submitted that his Lordship did not sentence the Appellant on the basis of the criminality of the offence (here manslaughter) which the Appellant committed.

27. In our respectful view we do not agree with these submissions. In this case, the learned Chief Justice recognised that "there are varying degrees of seriousness depending on the circumstances of each case, the offence, offender and the presence of aggravating and mitigating factors. Each case is to be considered on its own merits to arrive at as appropriate sentence".

28. The learned Chief Justice noted the Appellant's guilty plea taken at the earliest opportunity and gave credit for that. He noted also that there were, however serious aggravating factors in the case which are of concern.

29. In this case, the Appellant had a mental deficiency when he committed the offence. His sense of responsibility was grossly impaired. At the time of sentencing there was no psychiatric report as to how long the deficiency will continue and how it may develop or reduce. The Appellant was not on medication, there was no report on whether he would be referred to a psychiatrist, nor was any report on the progress of his condition offered. The nature of the offence and the make-up of the Appellant are such that the public require protection from him. No assurance by way of medical evidence was provided to the court that there will be no repetition of his violent behaviour, the Appellant came before his Lordship as highly unpredictable. In these circumstances, it is right and proper for the court to keep a hold over him by sentencing him to life imprisonment until his condition changes and it is safe to release him. This is clearly what the learned Chief Justice did in this case.

There is no recommendation for a hospital order in this case and so that does not apply in this case. I note you were suffering from some disease of the mind when the offence was committed and therefore your sense of responsibility was grossly impaired. What is of concern however is that I am not satisfied you will no longer be a danger to the public. No treatment has been prescribed and you are in much the same position you were in prior to the fatal attack on the deceased. The elements of unpredictability and uncertainty remain live issues in your case; there is no assurance or guarantee there will be no repetition of violence, a fortiori, when the attack was unexpected and directed at the very people who were trying to help him. This element of unpredictability is too high a risk for the public to be exposed to.

While in prison however, there should be further diagnosis with the view to accessing medical help as well as spiritual help.

Taking all factors into account, I form the view that a sentence of life imprisonment is appropriate in this case. I should also point out that depending on how successful any treatment that may be prescribed and subject to the report of the Commissioner of Corrections, you may in due time be considered for parole. In the peculiar circumstances of this case therefore, I am not prepared to state any minimum non-parole period but will leave that open to and depend on the reports on the success and outcome of any treatment that may be prescribed and your rehabilitation"...

31. In the circumstances of this case, we are of the view that there is no error of law in His Lordship's reasoning leading to his sentence of life imprisonment as a hold over type regime in the punishment and assistance to the Appellant.

32. In his submissions, Counsel for the Appellant refers to the case of Veen –v- Queen [1979] HCA 7; (1979) 143 CLR 458 ALR, he argues and encourages this court to depart from this Court's judgment in Tariani –v- Reginam [1989] SBCA 3.

33. We see no compelling reasons for doing so. The decision of this Court in Tariani is good law for the Solomon Islands and is the authority for the proposition the principle adopted by the High Court of Australia in Veen (No. 1) ought not to be followed in Solomon Islands. In Tariani their Lordship's referred to Veen –v- Queen [1988] HCA 14; [1988] 164 CLR 465 (No.2) where the accused who was sentenced to 8 years imprisonment committed the offence of manslaughter after his release. The protection of the public is a serious factor to be taken into account in determining the proper sentence.

34. In the exercise of its sentencing discretion, the court must have regard to the protection of the society amongst other factors. In Tariani, Connolly P. and Savage JA discussed Veen (1) and said:

"...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 the 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 the proper sentence is.

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...".

"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".

36. In the present case, we are satisfied that the circumstances of this case justify all conditions specified in Hodgson (Supra) by the Appellant's offending, thereby justifying the sentence of life imprisonment imposed on the Appellant. Equally, all guidelines and conditions set out by Kapi, J. in Tariani are also met by the facts of this case.

37. The sentence of life imprisonment is justified in the circumstances of this case. There is no error of law committed by the sentencing Judge.

39. The second ground of appeal is that the sentence imposed was manifestly excessive.

40. The learned Chief Justice noted the Appellant's guilty plea taken at the earliest opportunity and gave credit for that. He noted however, serious aggravating features in this case are of concern.

..."12. Taking all factors into account, I form the view that a sentence of life imprisonment is appropriate in this case. I should also point out that depending on how successful any treatment that may be prescribed and subject to the report of the Commissioner of Corrections, you may in due time be considered for parole. In the peculiar circumstances of this case therefore, I am not prepared to state any minimum non-parole period but will leave that open to and dependant on the reports on the success and outcome of any treatment that may prescribed and your rehabilitation"...

42. It is submitted for the Appellant that the criminality of the Appellant's action of killing was not grave due to his diminished responsibility and he would have no malice at all.

43. This submission is not correct as the Appellant was given credit for that when the charge was reduced to manslaughter. It is not relevant when considering the excessiveness of the sentence because even though the Appellant was not of malice aforethought the seriousness of his action cannot be put aside. A life was taken and it can never be brought back. The offending itself is grave enough to require an appropriate sentence, which his Lordship assessed to be of life imprisonment after considering other factors including the protection of the public and the gravity of the offending.

44. In the present case, his Lordship has considered all options including the following: degrees of seriousness of this case; its circumstances; the nature of the offence, the offender; the presence of aggravating and mitigating factors; any information from Counsels (and in particular the Defence Counsel); medical information or assistance to the Appellant, any psychiatric offer or assistance before he arrived at his sentence of the Appellant in this case.

..."There is no recommendation for a hospital order in this case so that does not apply in this case. I note you were suffering from some disease of mind when the offence was committed and therefore your sense of responsibility was grossly impaired. What is of concern however is that I am not satisfied you will no longer be a danger to the public. No treatment has been prescribed and you are in such the same position you were in prior to the fatal attack on the deceased. The elements of unpredictability and uncertainty remain live issues in your case; there is no assurance there will be no repetition of violence, a fortiori, when the attack was unexpected and directed at the very people who were trying to help him. This element of unpredictability is too high a risk for the public to be exposed to"...

46. It is argued for the Appellant that the Court below ought to have considered that the Appellant's mental illness resulting in diminished responsibility was curable and could be cured in the future upon proper medication and care.

47. We are of the view that this submission is misplaced - his Lordship's sentencing remarks noted that the Appellant was not on any medication. There was no psychiatric report as to any improvement in his condition or any recommendation for hospital order. The obligation is on Counsel to provide this information to the court so that this Lordship may have option to consider. No recommendation or suggestions were made for his Lordship's consideration. As a result his Lordship formed the view that a hospital order did not apply in this case.

48. We finally note that while it is argued on behalf of the Appellant that his Lordship could not sentence the Appellant to life imprisonment without giving a minimum non-parole period in this case, however, the life imprisonment sentence imposed on the Appellant is not without parole. Parole is open to him at any time when his condition improves. His Lordship did not commit to any particular time frame without any information from the Defence Counsel or a Psychiatric Doctor as to any recommendation on the hospital order or the likelihood for his condition will improve.

49. In such circumstances, we are of the view that the only reasonable decision the court could make is life imprisonment with a possible parole if his condition improves.

50. We are of the view that there is no error in sentencing the Appellant to life imprisonment in these circumstances and the sentence is not manifestly excessive.

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Justice Goldsbrough
President of the Court of Appeal

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Justice Ward, JA
Member of the Court of Appeal

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Justice Lunabek JA
Member of the Court of Appeal

Court of Appeal of Solomon Islands

Hou v Reginam [2015] SBCA 23; SICOA-CRAC 9 of 2014 (9 October 2015)