Damusia v R [2021] SBCA 7; SICOA-CRAC 46 of 2019 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Damusia v R
Citation:
Decision date:	1 February 2021
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
Court File Number(s):	46 of 2019
Parties:	Joseph Damusia v Regina
Hearing date(s):	Paper Hearing October 2021 sitting
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Karani T S for Appellant Kelesi E A for Respondent
Catchwords:	Pres-Sentence
Words and phrases:
Legislation cited:	Penal Code S 199 (1) [Cap 133]
Cases cited:	Tii v R [2017] SBCA 6.
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-5

JUDGMENT OF THE COURT

1. This appeal against sentence, brought with leave, follows a conviction entered against Joseph Midaei Damusia, hereinafter called the appellant, on 18th of July 2019. The appellant pleaded guilty to the offence of manslaughter country to section 199 (1) of the Penal Code [Cap 133]. Following an adjournment to allow counsel to produce submissions on sentencing the appellant was on 29 November 2019 sentenced to a term of imprisonment of three years for the offence of manslaughter.
2. The offence occurred in May 2016 at Oibola Market, Central Kwara’ae District, Malaita. The appellant, under the influence of alcohol, came across the deceased who he believed owed his brother money. The appellant confronted the deceased about this debt and an argument ensued. During the course of the argument the appellant kicked and punched the deceased on his back and around his rib cage. The deceased was taken quickly to a local clinic but was pronounced dead on arrival. Two days later the appellant was arrested and, after interview, charged with the offence of murder. Thereafter he was remanded in custody and remained in custody until trial and sentence.
3. Two grounds of appeal are set out in the notice of appeal. Firstly, that the court erred in failing to take into account the period of three years and three months spent in pre-sentence custody and secondly that the court failed to give reasons for not taking that into account.
4. At the conclusion of his remarks on sentencing, the learned trial judge said:-
   • “He had spent three years 3 months in custody. He is according (sic) sentenced to three years imprisonment for his crime. Order accordingly.”
5. From only those remarks, it is apparent that the sentencing judge was aware of the pre-sentence custody and gave no reason as to why that period of time should not be taken into account and credit given for it. It has been said on many previous occasions by this court that a period of pre-sentence custody prima facie deserves credit or in the alternative an explanation as to why credit should not be given. In that regard see Tii v R [2017] SBCA 6.
6. It is further apparent that the sentencing judge gave no indication as to what factors were regarded by the court as going towards aggravation of the offence, mitigation of the offence or of the offenders’ personal circumstances. There is brief mention of delay, but not of the effect or reason for that delay and a reference to the saving of time and resources from a guilty plea.
7. In the circumstances this court on appeal can do nothing other than to allow the appeal, set aside the sentence and impose a sentence for the offence by way of substitution. Such a course is, in our view, properly conceded by the respondent to this appeal.
8. Helpfully in this regard there appears a statement of agreed facts. On Saturday 28th May 2016 the deceased was going about his usual activity of selling market produce. While selling his market produce the appellant came to the marketplace. The appellant was under the influence of alcohol when he approached the deceased. The appellant confronted the deceased about his debt owed to the appellant's brother and asked why he the deceased had not paid off his debt. An argument began.
9. As a result of the argument the appellant kicked and punched the deceased on the back and ribs. The deceased was rushed to a local clinic shortly after falling down. Attempts to resuscitate the deceased along the way were not successful. The deceased was pronounced dead by a medical officer on the deceased arrival at the clinic. The appellant was approached by the police interviewed and later charged with manslaughter.
10. Whilst the agreed facts indicate a charge of manslaughter, the original charge was one of murder. It was not until the appellant had been committed for trial to the High Court on a charge of murder that eventually the Respondent filed a lesser charge of manslaughter.
11. The appellant pleaded guilty to that lesser charge. The guilty plea, although several years after the offence, followed shortly the filing of the lesser charge and the appellant is therefore entitled to some credit for an early guilty plea.
12. The offence itself did not involve the use of a weapon or weapons and appears to have been over in a short period of time. There is no evidence of premeditation. This court regards those matters as going towards mitigation.
13. The use of alcohol by the appellant this court regards as neither going towards mitigation or aggravation of the offence.
14. Causing the death over another person will always be regarded as a serious criminal offence and this case is no exception. The maximum prescribed penalty for the offence of manslaughter remains life imprisonment. It will not normally result in a sentence of life imprisonment unless it is of the most serious kind. This is not an example of the most serious type of manslaughter.
15. Taking account of the circumstances of this offence we consider a starting point of seven years appropriate. Credit should be given, in our view, for the early guilty plea and the appellants’ lack of previous criminal convictions. In addition, credit should also be available given the inexplicable delay in the conduct of these proceedings. In particular we note that the intervening period between committal for trial and the filing of an information was excessive, more than one year, and remains unexplained.
16. We therefore regard an appropriate final sentence for this offence to be five years imprisonment. The matter is however academic. Credit must be given to the appellant in full for the time he has spent in custody pending trial and sentence. That period began on 30 May 2016 and continued uninterrupted until the present day. It was in respect of this offence alone.
17. The sentence of five years imprisonment is deemed to have commenced on that same day, 30 May 2016. Having regard to credit available to well behaved prisoners serving sentences of imprisonment, the appellant is entitled to be released immediately, having already served an effective term of six years.
18. This appeal against sentence is allowed and the original sentence quashed. A sentence of imprisonment of five years is imposed, such sentence deemed to have commenced on 30 May 2016.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member