Isa v Regina [2015] SBCA 3; SICAO-CRAC 38 of 2014 (24 April 2015)

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. 038 of 2015 (On Appeal from High Court Criminal Case No. 407of 2008)
DATE OF HEARING:	15 April 2015
DATE OF JUDGMENT:	24 April 2015
THE COURT:	Goldsbrough P Ward JA Wilson JA
PARTIES:	Gedly Isa - V - Regina
ADVOCATES: Appellant: Respondent:	Mr. Holara assisted by Mr Valenitabua (Public Solicitor's Office) for the Appellant Ms Manata assisted by Mr Talasasa (Office of the DPP) for the Respondent
KEY WORDS:	Manslaughter – Appeal against sentence – offence committed in course of retributive attack on village during the Tension – comparatively low level of injury sustained by victim.
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	1. Appeal against sentence allowed. 2. Term of 25 years imprisonment set aside, and term of 12 years imprisonment substituted. 3. Sentence otherwise confirmed
PAGES	1- 6

JUDGMENT OF THE COURT

1. On 25 May 2003 the appellant deliberately shot at a young person named Josiah Fredrick ("the victim"). Almost nine years later, he was charged with the offence of attempted murder. On 13 October 2014 he pleaded guilty and four days later was sentenced to a long term of imprisonment.
   
2. This is an appeal against the sentence.
   

The sentence

3. The maximum penalty which might have been imposed for the attempted murder was life imprisonment.
   
4. The appellant was sentenced to 25 years imprisonment, to be served concurrently with a sentence of life imprisonment he was then serving, but only to the extent that should he be released on parole in respect of the life sentence before the expiration of the sentence for attempted murder, the remainder of the sentence of 25 years should be served before his release.
   

Grounds of appeal

5. There are two grounds of appeal: that the learned sentencing judge applied a wrong principle and that the sentence was manifestly excessive.
   

The offence

6. The offence was committed during the period of turmoil described as "The Tension". The appellant was a commander of the militant group known as GLF. He led members of the group to Vasavolavola village on the Weathercoast of Guadalcanal Province in the early hours of the morning, intending to punish individuals and the village generally for what they regarded as collaboration with the Joint Operation Group sent by the National Government to capture Harold Keke.
   
7. The GLF attacked the village, burning down many huts and firing many shots. Hearing the gunshots, the victim left his hut and went to his father's hut. On the way, he heard someone shout, "Shoot that evil man." The appellant was standing nearby, armed with a powerful rifle, which he aimed at the victim. Seeing this, the victim turned to run, and as he did so, the appellant fired the rifle at him hitting him in the arm. He fell to the ground, rolled away from where he was shot and managed to escape into the bush. He hid in the bush for some time, and then walked all night to Mbabanakira, where his wound was treated at the clinic. He was referred to the National Referral Hospital in Honiara for further treatment.
   
8. The victim was too frightened to return to his village and stayed away for several months. At the time of sentence he was a manual labourer, who still suffered significantly from the effects of the gunshot wound, particularly when doing heavy work.
   
9. The sentencing judge rejected a submission by the appellant's counsel that this was not a particularly serious crime of its type because the injury caused was not particularly serious. His Lordship described the offending this way –
   

"12. I find this to be a particularly heinous offence indeed. There is no issuehere of a sudden loss of temper or a fight that became heated and out ofcontrol. This is an unprovoked, cold-blooded shooting at a defenceless humanbeing with a powerful weapon for no good reason whatsoever and is a crime ofthe most serious gravity. The prisoner intended to kill the victim and it is through nothing more than good luck that the victim is not dead. Thisterrifying experience has left its mark on the victim and as a manual labourer, he will struggle for the rest of his life with the constant reminder of thatnight of terror."

Antecedents

10. The appellant was from Tamanu Village on the Weathercoast in Guadacanal Province. There were some inconsistencies in the antecedents related to the sentencing judge by the prosecutor and those related by his own counsel. According to his own counsel, he was aged 38 years when he committed the offence. He was married with three children, and provided for his family by subsistence gardening. While on the run after this offence, he committed a murder in June 2003, for which he was serving life imprisonment by the time he was dealt with for this offence.
    

The plea

11. The appellant did not indicate that he would plead guilty to the attempted murder charge until the first day of trial, in October 2014. The sentencing judge rightly declined to treat his plea as an early one indicating remorse.
    

Wrong principle

12. The sentencing judge referred to the decision of the Chief Justice inR v Ludawane [2010] SBHC 128. In that case the learned Chief Justice sentenced an offender for murder. His Lordship imposed the mandatory sentence of life imprisonment and then turned to the question of what recommendation he should make about the minimum term that should be served before release on parole. In discussing the latter, His Lordship cited with approval the decision of the English Court of Appeal in R v Sullivan [2005] 1 Cr App R (S) 67, saying –
    

"The English Court of Appeal noted that in a mandatory sentence of life imprisonment, there are two periods. The first one is known as the minimum term, this is the period to be served by an offender as a punishment and a deterrent. The second is the period during which the offender could, but might not, be released on licence by the Parole Board if it decided that the safety of the public did not require that the offender remain in prison.

The Court noted three starting points for seriousness of the murder committed; if it was exceptionally high in seriousness, then the appropriate sentence would be one for life. If the level of seriousness is categorised as particularly high then the starting point would be 30 years. In the average, normal or unexceptional circumstances, it would be around 14-15 years. The Court also noted that the starting point can be as low as 12 years in situations where the killing arose from a quarrel or loss of temper, where the element of premeditation, planning etc were absent and that it occurred on the spur of the moment. The period could increase or be reduced further depending on the aggravating or mitigating factors."

13. In the present case, the sentencing judge referred to Ludawane and Sullivan. His Lordship appears not to have appreciated that those cases concerned the categorisation of offences of murder for the purposes of making a recommendation for the minimum term which should be served before release on parole. Rather, after describing the present case of attempted murder as "a particularly heinous offence indeed", he referred to the adoption of "three categories of seriousness in relation to such cases" which, he said, were –
    
    • (a) those of an exceptionally high level of seriousness, where the sentence would be one for life;
      
    • (b) those of a particularly high of seriousness, where the starting point would be 30 years; and
      
    • (c) thosewhich could be described as average, normal or unexceptional circumstances, where sentences would start around 14-15 years.
      

His Lordship went on –

"15. While the Court of Appeal described these categories of seriousness as a guide and for the purpose of assisting sentencing courts, it is not always easy to differentiate between 'particularly high' and 'exceptionally high' seriousness. Furthermore, it is not easy to justify why a lesser penalty should be imposed on a man who intends to kill another, but only through lack of skill fails to achieve his purpose.

16. Looking at all of the facts of the offence, had the prisoner been convicted after trial, I would have had no hesitation in judging the circumstances to be 'exceptionally high in seriousness' and would have sentenced him to life imprisonment. Due to the largely non-functional parole process operating in the Solomon Islands currently, once that sentence is imposed, a plea of guilty cannot be recognised and rewarded in a meaningful way. However, even although his plea of guilty came at the very last moment, the court must recognise and acknowledge the plea as an admission of guilt and convey what benefit is appropriate to the prisoner as a result of his plea. In the circumstances of this case, the only benefit that the prisoner can be given is to adopt a view of the seriousness of the offence that is more beneficial to him than the 'exceptionally high' categorisation and then deduct an appropriate amount from that sentence to reflect the plea.

17. I have concluded that the appropriate starting point should be 30 years imprisonment. That sentence is reduced by 5 years to reflect the plea of guilty."

14. In our respectful view, the sentencing judge erred in his application of the categorisation of offending adopted in Sullivan to the circumstances of this case. Even if the three categories of seriousness might be of some general application, what the Court in Sullivan propounded were appropriate periods of actual incarceration before release on parole, and not appropriate sentences for attempted murder.
    

Manifestly excessive

15. The second ground of appeal is that the sentence imposed was manifestly excessive.
    
16. The sentencing judge adopted 30 years as the starting point for the sentence, and reduced it to 25 years in recognition of the plea of guilty.
    
17. Intent to kill, not merely intent to do grievous bodily harm, is an essential element of the offence of attempted murder. It is of its nature a dreadful offence for which condign punishment is to be imposed. But a sentence of life imprisonment is not mandatory, and in sentencing an offender all of the circumstances of a particular case must be taken into account, including the extent of the damage caused by the offending conduct.
    
18. This is consistent with the approach adopted by this Court in Tariani v R [1989] SBCA 3, where itconsidered circumstances in which a discretionary sentence of life imprisonment mightproperly be imposed. That was a case of attempted murder. It involved a particularly vicious attack on a member of the public by an offender who suffered from recurrent episodes of paranoid schizophrenia with poor control over his aggressive feelings particularly when angry. Nevertheless, he was not of unsound mind at the time of the offending and was fit to plead. The Court dismissed an appeal against the imposition of life imprisonment in the circumstances of that case. Following R v Hodgson (1967) 52 Cr. App. R 113, Connolly P and Savage JA held that a discretionary sentence of life imprisonment might properly be imposed if each of the following conditions were satisfied –
    
    • (i) the offence or offences were in themselves grave enough to require a very long sentence;
      
    • (ii) it appeared from the nature of the offences or from the defendant's history that he was a person of unstable character likely to commit such offences in the future; and
      
    • (iii) if the offences were committed the consequences to others might be specially injurious, as in the case of sexual offences or crimes of violence.
      

Kapi JA adopted a different formulation. In his Lordship's view the basic principle was that the punishment should be strictly proportionate to the gravity of the offence. Some of the factors which might be considered in assessing the seriousness of a case were –

(i) the nature of the offence;
(ii) the potential dangerousness of the offender to the community;
(iii) the nature of the injuries received and the nature of injuries that might be committed in the future.

19. This case is indeed a very serious example of attempted murder. The offence was committed in the context of a pre-meditated attack on the village in retribution for collaboration with a group sent by the government to capture a notorious rebel leader. Even if the fact that the victim was not killed was merely a function of the appellant's lack of skill as a shooter, the comparatively low level of injury sustained by the victim was still a relevant factor in the sentencing.
    
20. Gitoa v Regina [2014] SBCA 27 was another case that arose out of The Tension. A group of armed men arrived at a village on a retributive mission. A number of shots were fired. One person was killed, and another was the victim of an attempted murder. Gitoa was convicted of murder on the basis he was part of a joint criminal enterprise pursuant to s 22 of the Penal Code. He was convicted of attempted murder as the person who fired the relevant shot. In what this Court described as the fortuitously innocuous outcome of the attempted murder, the victim escaped without injury. This Court considered that the sentencing judge had failed to give effect to the principle that generally a blow which by good luck caused little damage despite a risk of catastrophic results will attract a lower penalty than it would if more actual harm were done. It reduced the sentence for attempted murder from life imprisonment to 10 years imprisonment to be served concurrently with the life term for murder.
    
21. Sentencing is an integrated process, and in jurisdictions with established, functioning parole systems a recommendation as to the minimum term to be served before release on parole is considered part of the sentence. The making of a recommendation for early release on parole can be a way of acknowledging a timely plea of guilty. Here the sentencing judge was correct in taking account of what he described as "the largely non-functional parole system in the Solomon Islands currently". His Lordship nevertheless recognised and acknowledged the plea as an admission of guilt, by reducing the term of imprisonment he would otherwise have imposed by five years.
    
22. Having regard to the circumstances of the offending and the level of harm suffered by the victim, we consider that the sentence of 25 years imprisonment was manifestly excessive. In our view, the appropriate starting point for the sentence should have been 15 years, which should have been reduced to 12 years to reflect the plea of guilty.
    

The orders of the Court are as follows –

1. Appeal against sentence allowed.
2. Term of 25 years imprisonment set aside, and term of 12 years imprisonment substituted.
3. Sentence otherwise confirmed.
   

Goldsbrough P
President of the Court of Appeal

Ward JA
Member of the Court of Appeal

Wilson JA
Member of the Court of Appeal