Tii v Regina [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Mwanesalua DCJ)
COURT FILE NUMBER:	Criminal Appeal Case No. 14 of 2016 (On Appeal from High Court Criminal Case No. 351 of 2012)
DATE OF HEARING:	24 April 2017
DATE OF JUDGMENT:	5 May 2017
THE COURT:	Goldsbrough P Ward JA Wilson JA
PARTIES:	John Tii - V - Regina
ADVOCATES: APPELLANT: RESPONDENT:	MR H. LAWRY on 24 April 2017, MR H KAUSIMAE on 3 May 2017. MR R.B. TALASASA and MS O. RATU
KEY WORDS:	SENTENCE – MURDER – JUVENILE
EXTEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	ALLOWED
PAGES	1- 11

JUDGMENT OF THE COURT

1. The appellant was a juvenile when he took part in a fatal attack on Simon Fuo’o (“the deceased”). He pleaded guilty to murder and was sentenced to nine years imprisonment commencing on the date of the sentence. He appeals against the severity of the sentence, having been given leave to appeal on 3 October 2016.
   
2. The offending took place on 21 April 2012. The appellant was taken into custody that day. On 9 May 2014 he pleaded guilty, but he was not sentenced until 21 August 2015 (that is, more than 15 months later). By then, he had spent three years and four months in pre-sentence custody.
   
3. The appellant is presently aged 19 years and one month. He has now spent five years and two weeks in custody.
   

Grounds of appeal

4. The appellant relied on these grounds of appeal:
   
   1. as he was a juvenile at the time of the offending the sentence was manifestly excessive in the circumstances;
   2. the Judge failed to make any allowance for the mitigating factors which included remorse, an apology and a guilty plea 15 months prior to sentence;
   100. the sentence ought to have commenced from when he was taken into custody.
        

The facts

5. A fight broke out in Honiara between 2 groups of young men. The appellant was part of one of those groups. That group later assaulted the deceased at a bus stop adjacent to the Central Market, inflicting slash wounds, stab wounds, lacerations, bruises and abrasions. A slash wound 24 x 3 x 19mm deep fractured his skull. He died from bleeding in the brain and other wounds to his body. In the opinion of a pathologist, the slash and stab wounds were inflicted by the use of a knife or other sharp objects by the assailants.
   

Sentencing remarks

6. The sentencing judge recognised that the appellant was a juvenile. However, following an incorrect factual submission by defence counsel, he regarded him as aged 17 years at the time of the offending. That was apparently what he told police when he was interviewed. Be that as it may, he was in fact 14 years and one month, having been born on 19 March 1998.
   
7. His Lordship observed (correctly) –
   

Murder is a very serious offence in Solomon Islands carrying a mandatory sentence of life imprisonment. However, there is a provision in law here in Solomon Islands that where a defendant committed murder while still a juvenile that person ought not to be sentenced to mandatory life imprisonment as an adult. As pointed out by the defence this principle arose out of the interpretation of section 13 of the Juvenile Offenders Act [Cap. 26] [sic] in Pese v Regina [2008] SBCA 10; CA-CRAC 4 of 2008.

8. His Lordship took notice of these agreed facts:
   1. the appellant was originally from a village in North Malaita. He had formal education to Form 1, and was living and working in Honiara at the time of the offending. He was residing with his uncle who was also working in Honiara. He also lived in various other places in Honiara;
   2. the appellant had been drinking beer before the incident;
   100. he took part in the attack on the deceased, which was unplanned;
   4. he had no previous convictions.
      
9. He continued –
   

5. The Crown and the defence made written and verbal sentencing submissions. The Crown sought lengthy sentences for murder committed by juveniles because they may use youth as an excuse to commit homicide. On the other hand the defence submitted that the Defendant was drunk, had no previous conviction and expressed regrets for his action. He apologised to the deceased’s family members and he was a juvenile at the date when the deceased was injured to death with a weapon.

6. Counsel for the Defendant submits that the starting point to consider the appropriate sentence for the Defendant should be 7 years with some time to be served in the community. Unfortunately this court would not consider making an order for the Defendant to serve part of his custodial sentence in any community outside the prison. This is because the community and the person to be responsible for the wellbeing of the Defendant have never been identified to the court.

7. The nature and extent of the slashed, lacerated, and the other wounds inflicted on the deceased’s body demonstrated the severity of mob violence. Such attack must be discouraged by the imposition of appropriate sentences.

10. His Lordship considered 12 years imprisonment as the appropriate starting point. He deducted three years on account of time spent in remand and imposed a sentence of nine years commencing on the date of sentence (21 August 2015). He declined to consider making an order for the appellant to serve part of his custodial sentence in any community outside the prison, because the community and the person to be responsible for his well-being had not been identified to the court.\
    
11. Counsel for the appellant submitted that his Lordship erred in a number of respects -
    
    1. in order for the sentencing process to be transparent, his Lordship ought to have fixed a starting point for the sentence, then provided an uplift if appropriate to take account of aggravating factors, and then determined the discount for the mitigating factors;
    2. his Lordship ought to have left open the possibility of the appellant serving part of his sentence in the community;
    100. while his Lordship referred to mitigating factors, he gave no indication what, if any, allowance he made for those factors;
    4. he made no express allowance for the plea of guilty;
    5. the delay of 15 months from plea to sentence was a further mitigating factor that was not considered;
    6. there should have been a discount of up to one-third for the guilty plea and other mitigating factors;
    7. the manner in which his Lordship allowed for pre-sentence custody resulted in inequities in relation to remission (under the Correctional Services Act 2007 s. 37). Assuming remission for good behaviour at one-third of the sentence, a sentence of 12 years from the date the appellant was taken into custody (21 August 2012) would have resulted in release on 20 April 2020 (after 8 years), while a sentence of nine years from the date of sentence (21 August 2015) would result in release on 20 August 2021 (after 6 years). Accordingly, in counsel for the appellant’s submission, the sentence imposed was effectively 13½ years, which was manifestly excessive having regard to comparative sentences.
       
12. Counsel for the appellant submitted that there was little consistency in decided cases as to when a sentence should commence, and urged this court to give the lower courts guidance on this issue.
    
13. He submitted that this court should set aside the sentence, and impose an appropriate sentence that includes a period in the community in the care of a responsible adult. He submitted that the appellant has been in custody long enough, and that he should now be released into the community under the supervision of his father Charles Mani.
    

The respondent’s submissions on appeal

14. Counsel for the respondent submitted that in the circumstances of this case imprisonment was the only appropriate sentence, and that the sentence imposed was not manifestly excessive. Referring to what his Lordship said in paragraph 7 of his sentencing remarks, he described the offending as a grave crime with circumstances of aggravation, and said his Lordship had properly pointed to the need for a sentence with deterrent effect.
    
15. He referred this court to the sentencing remarks in Regina v Tiko [2010] SBCA 7, submitting that what was said there about placing the offender in the community was applicable to the present case. In that case there was a street dispute between two groups of youths near a night club in the early hours of the morning. Tiko, who was then aged 16, fatally stabbed a youth in the chest with a screw-driver he had obtained shortly before from a security guard at the club. Approximately 14 months later, he was tried for murder and found guilty. The sentencing judge took account of the relevant sentencing options under the Juvenile Offenders Act, and said –
    

The Court has considered all alternative methods of dealing with you and, in particular, the Court has considered whether you should be committed to the care of your parents or your brother as guardian. That does not seem as if it would be a useful thing to do because...you were in the care of your parents and your brother when this offence was committed. It seems that neither your parents nor your brother had any concerns about a 16 year old [being] out all night visiting clubs and drinking beer. ... Putting you back into their care is not going to achieve a great deal. So the Court is going to sentence you to a period of imprisonment.

He imposed a sentence of four years’ imprisonment. The Crown’s appeal against the sentence on the ground it was manifestly inadequate was dismissed.

16. Counsel for the respondent agreed that sentencing courts should adopt a consistent approach to allowance for pre-sentence custody where possible.
    

Discussion

Maximum penalty

17. By s. 200 of the Penal Code [Cap. 5], there is only one sentence which can be imposed for murder – life imprisonment.
    
18. However, life imprisonment is not mandatory where the offender was not an adult at the time the offence was committed.
    
19. Sections 13 and 16 of the Juvenile Offenders Act [cap. 14] provide –
    

13. Notwithstanding anything in this Act to the contrary, when a child or young person is convicted of a grave crime, the court may sentence the offender to be detained for such period as may be specified in the sentence; and where such a sentence is passed the child or young person shall, during that period, notwithstanding anything in the provisions of this Act be liable to be detained in such place and on such conditions as the Minister may in his discretion direct, and whilst so detained shall be deemed to be in legal custody.

16. 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 -

(a) .......................................

(b) .......... ...........................

(c) .......... ...........................

(d) by committing the offender to the care of a relative or other fit person; or

(e) .......... ...........................

(f) .......... ...........................

(g) .......... ...........................

(h) .......... ...........................

(i) by committing the offender to custody in a place of detention; or

(j) where the offender is a young person, by sentencing him to imprisonment; or

(k)......... ...........................

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

Murder is a “grave crime” and a person aged between 14 and 18 years is a “young person” within the meaning of these sections: see the definitions in s 1.

20. In Kelly v Regina [2006] SBCA 17 the Court of Appeal (constituted by Lord Slynn of Hadley P and McPherson and Morris JJA) held unanimously that s. 13 qualifies s. 200 of the Penal Code. Their Lordships said –

It is apparent that the introductory words in s.13 “Notwithstanding anything in this Act to the contrary,” are directed principally if not exclusively to s.16 of the Act. As we have seen, the powers s.16 confers are expressly made subject to the provisions of this or any other Act. To that extent, mandatory life imprisonment imposed by s. 200 of the Penal Code is preserved. But in making s. 16 subject to the provision of “this Act,” s. 16 is in terms expressly made subservient to s. 13 of the Juvenile Offenders Act. Section 13 is directed specifically to the class of child or young offenders who have been convicted of a “grave crime”, which is defined in s. 2 of the Act, in the Schedule so as to comprehend a series of six major forms of offences, of which murder is one. In dealing under s. 13 with a child or a young person who is convicted of murder, the Court “may” sentence the offender to a period of detention (rather than imprisonment) under conditions that the Minister may determine.

There can be little doubt that, approached in this way, s. 13 qualifies not only s. 16 of the Act but also s. 200 of the Penal Code in imposing mandatory life imprisonment for a murder committed by a child or young person. Section 13 of the Act deals specifically with particular class of individual, namely those under 18 years of age who commit a murder. It is later legislation enacted after and subsequently to the Penal Code. On ordinary principles of interpretation, and for each of these reasons, s. 13 therefore takes precedence over s. 200 of the Code. To the limited extent prescribed in s. 13, the mandatory sentencing rule in s. 200 is impliedly repealed or confirmed or required by s. 5(1)(g) of the Constitution, and, if need be, also by international treaties and conventions on the subject. Indeed, if s. 13 of the Act is not given the interpretation adopted here, it serves no purpose at all, and might as well not have been enacted. Some meaning and effect must be given to it, and in our view it is to be read as qualifying the mandatory terms of s. 200 of the Penal Code as regards life imprisonment in the case of the grave crime of murder committed by a child or young person.

Approach to sentencing

21. A sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation.
    
22. The starting point should be consideration of the facts of the offence and of the appropriate range of penalty for the offence constituted by those facts. Then any aggravating circumstances should be identified.
    
23. The sentencing judge’s attention should then turn to facts relating to the offender – his antecedents (including personal circumstances and criminal history, if any) and mitigating factors such as youth, remorse, or plea of guilty (including the circumstances in which the plea was entered). Intoxication may be an explanation for an offender’s conduct, but not an excuse for it: in other words, it should not be treated as a mitigating factor.
    
24. Rehabilitation and reintegration into the community are particularly important in the case of young offenders. It is in the public interest as well as in the interest of the offender that a young offender become a law abiding and contributing member of his community.
    
25. In determining an appeal against a sentence imposed on a juvenile for murder in Fo’oka v Regina [2014] SBCA 10, the Court of Appeal (constituted by Goldsbrough P and Williams and Ward JJA) said –

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.

26. As Palmer CJ observed in Regina v K [2006] SBHC 53 –

The sentence for young persons is made up of time in prison and also supervised time in the community after the prison sentence is served. ..... The time in prison addresses the issue of accountability and sanctions whilst the time under supervision in the community relates to reintegration.

27. There may be other matters to be taken into account in arriving at the sentence ultimately imposed. For example, if an offender has been in pre-sentence custody, the sentencing judge should consider making an appropriate allowance for that.
    
28. In the normal course, pre-sentence custody should be taken into account in an offender’s favour. If a sentencing judge decides not to do so, he should say so expressly and explain why he is not doing so.
    
29. There is no prescribed way for making allowance for pre-sentence custody. It is important that a sentencing judge take account of all the likely consequences of the way in which he does so. It is reasonable to expect the prosecutor and defence counsel to make any relevant submissions.
    
30. In a case like the present, where the offender was in pre-sentence custody solely on account of the offence for which he was being sentenced and where the period of pre-sentence custody was continuous (that is, unbroken by periods out of prison on bail), this should be done simply and effectively by ordering that the sentence be deemed to have commenced on the date he was taken into custody. See Penal Code s. 24(5). It would be necessary to make such an order as part of the sentence to ensure that the date he was first taken into custody was used as the starting point in calculating one-third of the sentence for remission purposes.
    
31. A sentencing judge should expose his reasoning, by indicating what matters he has taken into account at each step along the way to arriving at the sentence. Before imposing the sentence, he should review the allowances he has made along the way to ensure that the sentence he has provisionally decided upon is just and appropriate in the circumstances of the case.
    
32. In Regina v Tiko [2010] SBCA 7, the Court Appeal (constituted by Auld P and McPherson and Williams JJA) summarised the correct approach as follows -

In the balancing exercise for a sentencing judge between, on the one hand, the objective gravity of a case and, on the other, considerations of rehabilitation, reintegration into society and of securing reconciliation through compensation or otherwise, the younger the offender the more importance to be attached to the latter considerations. But the extent to which, in fixing the final disposal, they and other mitigating factors should be set off against the objective gravity of the offence depends on how bad it is. The balance is essentially a matter of a value or discretionary judgement of the sentencing judge on the facts and circumstances of the case as he or she knows them.

The present case

33. Ten years’ imprisonment is an appropriate starting point in sentencing a juvenile for murder committed in the course of a fight between two groups. As the sentencing judge observed, the nature and extent of the wounds inflicted on the deceased’s body demonstrated the severity of the mob violence in the present case. That aggravating feature justified 12 years before mitigating factors and pre-sentence custody were taken into account.
    
34. His Lordship erred in not saying which of the factors referred to by defence counsel he regarded as mitigating factors, and in not making an express allowance for mitigating factors.
    
35. His Lordship was wrong about the appellant’s age at the time of the offence. That the appellant was only 14 years old was a significant mitigating factor.
    
36. His Lordship made no express allowance for the plea of guilty. It was an indication of significant remorse, as was the appellant’s apology to the deceased’s family. While the allowance for a guilty plea is ultimately a matter for the sentencing judge, it is often as much as one-third of the sentence.
    
37. A delay of 15 months from plea to sentence is too long. An offender who has pleaded guilty to an offence is entitled to know his fate sooner than that. This is even more so when he is a juvenile awaiting sentence for murder, for which the maximum penalty is life imprisonment. As counsel for the appellant submitted, in the circumstances of this case that delay was a factor which ought to have been taken into account in mitigation of sentence.
    
38. In all the circumstances, it would have been appropriate to reduce the sentence by up to one half on account of these mitigating factors.
    
39. His Lordship cannot be criticised for not making provision for the appellant to serve part of the sentence in the community, given the absence of evidence of a suitable community or person.
    
40. Counsel for the appellant was rightly critical of the way in which his Lordship made allowance for pre-sentence custody, and its unintended effect on remission of sentence pursuant to s. 37 of the Correctional Services Act 2007.
    

Disposition

41. The sentence imposed by his Lordship should be set aside, and this court should resentence the appellant.
    
42. The appellant should be sentenced to six years’ imprisonment. That term should be deemed to have commenced when he was taken into custody on 21 April 2012.
    
43. The appellant has already served a substantial part of that term in prison.
    
44. This court received affidavit evidence from the appellant’s father Charles Mani. Mr Mani was previously working away from home, as a bulldozer operator for a logging company in Malaita, but he is presently living at home at Mbokonavera in Honiara. He would be prepared to provide guidance and care for his son. Counsel for the appellant submitted that Mr Mani would be a suitable person to care for his client the community.
    
45. A social enquiry report prepared by a social welfare officer in the Ministry of Health & Medical Services dated 26 April 2017 was provided to this court. Counsel for the appellant and the Director of Public Prosecutions were invited to make submissions on it. Counsel for the appellant did not wish to make any submissions on the report and the Director told the court that he affirmed his earlier submission about release into the community.
46. The social welfare officer interviewed the appellant’s parents in their home at Mbokonavera. They are law abiding citizens, aged 52 years and 49 years respectively, who want to be reunited with their son. They would take him back to their home village in Saua, North Malaita, where they would engage him in fishing projects, gardening and small entrepreneurship. The social welfare officer concluded that they are capable of providing guidance and supervision for their son, and recorded that the father is prepared to undertake the custody and supervision of him.
47. This court is satisfied that Charles Mani would be a fit person to care for the appellant in the community as provided for in s. 16(b) of the Juvenile Offenders Act.
48. The appellant should be released from prison forthwith to serve the balance of the sentence in the community, committed to the care of his father Charles Mani.

49. This court orders:

1. that the appeal be allowed;
2. that the sentence imposed by the High Court be set aside;
3. that the appellant be sentenced to six years’ imprisonment;
4. that the term of six years be deemed to have commenced on 21 April 2012;
5. that the appellant be released from prison forthwith to serve the balance of the term of six years in the community, committed to the care of his father Charles Mani.
   

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Goldsbrough P

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Ward JA

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Wilson JA