R v Benson [2022] SBCA 22; SICOA-CRAC 15 of 2022 (4 November 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	R v Danny Benson
Citation:
Decision date:	4 November 2022
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Bird, J)
Court File Number(s):	15 of 2022
Parties:	Rex v Danny Benson
Hearing date(s):	By circulation of papers
Place of delivery:
Judge(s):	Goldsbrough, P Palmer, CJ Gavara-Nanu, JA
Representation:	Kelesi, A and Tonowane, N for Appellant Kausimae, H for Respondent
Catchwords:	Sentence range-Manslaughter Starting Point
Words and phrases:
Legislation cited:	Penal Code S 199 [cap 26], Traffic Act [cap 131] S 43
Cases cited:	R v Lavender [2005] 222 CLR, Wilson v The Queen [1992] 174 CLR, Stuart [1979] 1 Cr App, R v Shelton [1979] 1 Cr App, Saukoroa v R [1983] SILR 275, Berekame v DPP[1985-1986] SILR 272, Nuttal [1908] 1 Cr App R 180, Gumbs [1926] 19 Cr App R 4, Bade v The Queen [1988] SBHC 10, Angitalo v Regina [2005] SBCA 5, Rongodala v Regina [2006] SBCA 2, Qoloni v Regina [2005] SBHC 73, Gerea v Regina [2005] SBHC 34, Talifai v Regina [2011] SBHC 16, R v Asuana [1990] SBHC 52, Soni v Reginam [2013] SBCA 6
Ex Tempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-16

JUDGMENT OF THE COURT

1. This is an appeal against sentence by the Crown against the orders of the Court below dated 10^th June 2022. The learned Judge had imposed sentences as follows:
   1. The defendant Mr. Benson Danny is hereby convicted of 5 counts of manslaughter contrary to section 199 of the Penal Code (cap. 26).
   2. Count 1 – The defendant is sentenced to 6 ½ years’ imprisonment.
   3. Count 2 – The defendant is sentenced to 6 ½ years’ imprisonment.
   4. Count 3 – The defendant is sentenced to 6 ½ years’ imprisonment.
   5. Count 4 – The defendant is sentenced to 6 ½ years’ imprisonment.
   6. Count 5 – The defendant is sentenced to 6 ½ years’ imprisonment.
   7. The sentences in orders 2 to 6 are to be served concurrently.
   8. I direct that the time spent in pre-trial custody to be deducted from the total sentence.
   9. Right of appeal.
2. Two grounds of appeal were relied on as follows:
   • (a) That the learned trial Judge erred in law when she failed to correctly apply the totality principle rule; and
   • (b) That the sentence imposed is manifestly inadequate.

Brief facts of the case.

3. The facts are more fully set out in the reasons for sentence published by the learned judge in her sentence of 10^th June 2022.
4. The Respondent had been charged with 5 counts of manslaughter contrary to section 199 of the Penal Code (cap. 26). He pleaded guilty to all the charges on the 6^th April 2022 and was convicted accordingly.
5. He is from Obo’obo Village, Central Guadalcanal and was 19 years old at the time of the commission of the offence.
6. The victims (five) of the offence who died as a result of his dangerous and reckless driving were:
   1. Nicholas Tavake, a 30 years old male from Temotu Province,
   2. Caspar Nadu, a 16 year-old male person from Temotu Province,
   3. Richard Kuluweo, a 26 year old male from Temotu Province,
   4. Daniel Maeke, a 20 year old male from Guadalcanal Province, and
   5. John Lavi, a 20 year old male from Malaita Province.
7. The tragic incident occurred on the night of the 7^th July 2021 between the hours of 8:00 – 9:00 pm. The Defendant was driving a white Toyota Land Cruiser at that time. He was spotted by a Police Patrol Team taking off from the northern road at the KGVI cross-road and was observed to be driving erratically, overtaking a vehicle in front of him and then turning in front of an incoming bus that was about to stop at the Uncle Alick shop bus stop, at the KGVI area.
8. At that time, there was a traffic jam from Lee Kwok Kuen area, to the Lungga area. The Police Patrol team signalled to him to stop but instead he sought to escape by driving through the middle of the single lane road without indicating lights to other vehicle users on the road.
9. His off-sider told him to slow down and stop on the side of the road but he told him to shut up and wind the windows up. He then accelerated his speed.
10. It is not disputed that he was intoxicated at that time. The Police gave signal to him to stop but he continued on at very high speed. They followed as he drove towards the Lungga Community rough and bumpy road. At the Lungga Cross Road area, the police patrol could only see his rear tail light at about 60 or so metres out. From the Cross Road area, he further accelerated and increased the distance to about 90 or so metres away. He was travelling so fast that the police patrol lost sight of him at some stage.
11. He then turned into the domestic airport terminal bus stop area and continued to drive at very high speed towards the Tenaru Bridge area, the scene of the crash. As he approached the single lane bridge, an oncoming vehicle had entered the bridge from the eastern end. This meant the Respondent had to stop to give way for the oncoming vehicle, but did not.
12. At that time, there was a fundraising activity being held at the western end of the old Tenaru bridge and there was a crowd of people attending the event.
13. The facts in the court below showed that in an attempt to evade the police patrol, the Respondent switched off his head lights and veered the vehicle directly towards the crowd of people attending the fundraising event. He collided with the five victims and killed them almost instantly. He was later arrested at the scene and taken into police custody.

Discussion and analysis.

14. The offence of manslaughter is set out in section 199 as follows:
    • “199. (1) Any person who by an unlawful act or omission causes the death of another person is guilty of the felony known as manslaughter. An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.
    • (2) Any person who commits the felony of manslaughter shall he liable to imprisonment for life.”
15. The crime of manslaughter falls into two classes. The first is voluntary manslaughter where death or grievous bodily harm is intended. The second is involuntary manslaughter where neither death or grievous bodily harm is intended. Involuntary manslaughter is by unlawful and dangerous act, or by criminal negligence. This case falls within the second class, of involuntary manslaughter.
16. In R. v. Lavender^[1], their Honours state:
    • “As this court held in Wilson v. The Queen [1992] HCA 31; [1992] 174 CLR 313 at 333, there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder.”
17. In Blackstone’s Criminal Practice^[2], the learned Author states:
    • “... there now appear to be two main categories of killing without malice aforethought which are regarded as unlawful and hence amount to manslaughter:
    • (a) Killing by an unlawful act likely to cause bodily harm – often called ‘unlawful act manslaughter’ or ‘constructive manslaughter’; and
    • (b) killing grossly negligently, or rather, as it seems increasingly to be regarded, killing recklessly.”
18. The crime of manslaughter which has occurred in this instance falls within the second category of killing by gross negligence or recklessly.
19. It is important to understand this distinction of the manslaughter charges with which the Respondent was dealt with in the court below.
20. The offence of manslaughter is a serious offence and is reflected in the maximum sentence of a life imprisonment which the court can impose in extreme cases of seriousness, depending on the circumstances of each case and the presence of aggravating and mitigating features.
21. It is accepted that offences of manslaughter can vary widely in culpability and circumstances.
22. In the case of Stuart [1979]^[3], Cumming-Bruce LJ states:
    • “English law has always regarded causing of the death of a man as an offence of great gravity, although the circumstances in which death is caused are manifestly relevant to assessing the degree of criminal responsibility and wickedness.”
23. There are obviously varying degrees of manslaughter, which the courts have dealt with and imposed varying sentences ranging from 2 – 10 years and longer in the more serious of cases, depending on the facts of each case and level of culpability.
24. In R. v. Shelton^[4], Roskill LJ said, “..., the offence of manslaughter, almost more than any other offence, varies in degree, from near murder at one extreme to almost an accident on the other.” In our considered view, this case falls more within the former category.
25. The principles governing the appellate court’s jurisdiction to review sentences imposed by a trial judge are well settled in this jurisdiction as set out in Saukoroa v. R [1983] SILR 275 and Berekame v DPP [1985-1986] SILR 272.
26. The principle set out in those cases is that the appellate court will not interfere with the sentence imposed by the trial judge in the exercise of his discretion unless it is shown to be:
    • “manifestly excessive or manifestly inadequate either because the judge has acted on wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence. The question therefore is not whether this court would have imposed a different sentence to the one given but rather whether there was an error in the exercise of the sentencing discretion in the court below.”^[5]
27. This means that the Court of Appeal will not interfere merely because the sentence imposed is below or above that which the court would have imposed. The appellant must be able to show that the way the case was dealt with was outside the broad range of penalties or other dispositions appropriate to the case.
28. In Nuttal^[6], Channell J said, “This court will ... be reluctant to interfere with sentences which do not seem to it to be wrong in principle, though they may appear heavy to individual judges”.
29. In Gumbs^[7], Lord Hewart CJ stated:
    • “... this court never interferes with the discretion of the court below merely on the ground that this court might have passed a somewhat different sentence; for this court to revise a sentence there must be some error in principle.”
30. In more recent cases, words additional or alternative to “wrong in principle” such as “excessive” or “manifestly excessive” have been used. This means according to the dictum of Channell J that a sentence will not be reduced merely because it was on the severe side – an appeal will only succeed if the sentence was excessive in the sense of being outside the appropriate range for the offence and offender in question.
31. This Court will intervene if it is satisfied that the sentence in this instance is “manifestly inadequate”.
32. In the Court of Appeal case of Rongodala v Regina^[8], the Court noted:
    • “It can be said that there are many grades of seriousness when it comes to the offence of manslaughter. In determining the appropriate penalty, many factors have to be taken into account. Without suggesting that these are the only considerations, ordinarily a Court would have regard to the age of the offender, previous criminal history of the offender particularly whether there are previous convictions involving violence, provocation, intoxication, type of weapon if any used, persistence of the attack, vulnerability of the victim, and the relationship between the parties.”
33. We now turn to the grounds of appeal.

GROUND 1 OF THE APPEAL: That the learned trial Judge erred in law when she failed to correctly apply the totality principle rule.

34. This appeal ground raises the question whether the five counts should be made concurrent or consecutive.
35. This point has been addressed by the Courts on numerous occasions. In Angitalo v. Regina^[9], this court reiterated the position on accumulation of sentences as set out by Ward CJ in Bade v The Queen [1988] SBHC 10; [1988-1989] SILR 121; (21 December 1988) as follows –
    • “When considering sentence for a number of offences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. However, there are two modifications, namely -
    • (a) where a number of offences arises out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences; and
    • (b) where the aggregate of the sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case.”
36. The primary issue that arises in this appeal is whether the sentences imposed should be made concurrent or consecutive, when multiple counts of manslaughter have been charged that essentially arose from one incident or transaction.
37. In Angitalo, when addressing this issue, this court said:
    • “Where the arithmetical total of consecutive sentences results in an effective sentence that is inappropriately harsh, the sentencing court can properly make the necessary adjustment by reducing one or more of the accumulated sentences so that the total term is not excessive.
    • In some cases, for example, thefts that occur over an extended period of time, where each theft is a distinct crime (so that they do not form part of a single transaction) but where giving a consecutive sentence for each offence would lead to an aggregate sentence that is too harsh having regard to the total criminality, the Court might well think it appropriate to pass a number of consecutive sentences but order that the sentences imposed for the remainder should be served concurrently. Again, the crucial question will be whether, looking at the criminality of the offender as a whole, the overall sentence that is imposed is not inappropriately heavy or lenient.
    • When either of these courses is followed, it is essential that the sentencing Court explain what has occurred, so that there will be no misunderstanding about the way in which the sentences have been arrived at.”
38. The questions of proportionality and totality would only arise where there are obvious considerations of distinctive crimes of manslaughter that have been committed but not from where one transaction or incident has occurred and resulting in multiple persons being killed as is the case here.
39. We are satisfied the learned judge did not commit any error of law in her exercise of discretion and analysis of the law as it applied to the one transaction case or separate and distinct crimes. We find no basis in which to have the five counts charged to be ordered to run consecutive or to consider some of them to be ordered to run consecutive to reflect the criminality of the offending in this tragic case. We dismiss this appeal ground.

GROUND 2 OF THE APPEAL: That the sentence imposed is manifestly inadequate.

40. The seriousness in offending in the circumstances of this case in our considered view should place it well in the upper range of sentences to be imposed. We note the starting point taken by the learned judge was 7 years. Whilst she was correct in saying that this was in the upper range, that is still well below the range of sentences for manslaughter that should reflect the criminality in offending in this particular instance.
41. The range of 2 – 10 years for sentences of manslaughter imposed by the High Court did not specify what the upper range was, only the range of sentences that had been imposed for the numerous cases that had been dealt with. No doubt there will be cases of manslaughter, which would justify a higher starting point, and others still that are very serious or of exceptional seriousness, which would justify the imposition of a life sentence at the other extreme.
42. We are satisfied this case falls within the category of very serious cases of manslaughter as reflected in the extreme circumstances of offending which were present in this case.
43. We note on numerous occasions when told or directed to stop, he blatantly ignored them and continued to drive in a manner that was not only reckless but also intentional and deliberate.
44. He deliberately ignored his co-passenger who warned him to pull aside and stop several times. He deliberately ignored police instructions to pull over and stop throughout, even when he was under hot pursuit. The effect of a hot pursuit by the police is a warning to any driver to pull over and stop immediately, but he chose not to. A hot pursuit occurs when an offence has been committed or about to be committed and there exists a grave risk that the person being pursued may cause harm or be a danger to others. There is no doubt the hot pursuit was justified in the circumstances, which persisted that night in the manner of driving of the Respondent.
45. We note he was driving at excessive speed to the point at one stage of the pursuit the police patrol team could not keep up with him and completely lost sight of him. This is unacceptable and blatant irresponsible driving on the road.
46. He also deliberately ignored the heavy traffic conditions, which persisted that evening, comprising of a traffic jam, and continued to drive on in an extremely dangerous and reckless manner putting vehicles and other users of the road at grave risk.
47. When he approached the one-way bridge at Tenaru, he was supposed to give way if an oncoming vehicle was approaching the bridge. He knew he was required to stop but again deliberately and blatantly refused to stop. Instead, he drove his vehicle straight into an innocent gathering of people at the side of the bridge, killing five persons who were at an event celebrating. This is blatant and callous behaviour, which not only put lives at grave risk but tragically resulted in the loss of 5 innocent lives.
48. We note that he was under the influence of alcohol when driving. This is clearly an aggravating feature. This is a separate offence that is recognised under the Traffic Act and includes the offence of “Driving or being in charge, when under the influence of drink or drugs” contrary to section 43 of the Traffic Act (cap. 131). It carries a penalty of a fine of two thousand dollars or imprisonment for two years, or both fine and imprisonment.
49. We note too that the offence occurred at night time when there was very heavy traffic on the road but he also ignored this.
50. Finally, we note the high number of lives (five) that were lost as a consequence of his extreme reckless driving. The injuries sustained, according to the statement set out in the “Summary of Facts” filed in the High Court on 25 May 2021, at page 3, were consistent with injuries caused as a consequence of high speed impact on the victims. Death would have occurred almost instantaneously or soon after the deadly impacts.
51. From start to finish, it was not only reckless, but deliberate and intentional behaviour, which resulted in the terrible tragedy of the loss of five innocent lives that night. The courts have a duty to send out a clear message of deterrence to the community that those who commit this type of offences can expect an immediate and lengthy custodial sentence to be imposed.
52. We form the view that the starting point in this case of 7 years was manifestly inadequate and the learned judge erred on this point. We are satisfied the starting point noting the maximum penalty to be imposed, the features and aggravation of the offence, should be 21 years imprisonment.
53. On the other hand, we bear in mind the mitigating factors highlighted in this case, in particular the guilty plea, which had not only saved court time and resources, but also witnesses from the trauma in having to relive the tragic consequences, which occurred that night. It is also consistent with remorse and coming to terms with the consequences of his actions that fateful day. An early guilty plea warrants a reduction in this case. In the case of Soni v Reginam,^[10] this court said at paragraphs 16 and 17:
    • “16. All the cases referred to above make particular mention that the effect a guilty plea should have on the sentencing decision. In each case emphasis has been put on the particular effect on the victim of having to give evidence at trial and the importance, where appropriate, of a reduction in the length of custodial sentence available from an early indication of a guilty plea. The starting points set out above assume a contested trial. In addition to sparing the victim the ordeal of giving evidence at the trial and possibly reliving the experience, a guilty plea also demonstrates that the offender appreciates how wrong his conduct was and regrets it.
    • 17. It is principally for these two reasons that the sentencing judge should consider an appropriate discount to the applicable sentence arrived at following the guidelines. Previous discussions as to the available discount for a guilty plea can be found in Qoloni v Regina [2005] SBHC 73; HCSI-CRC 076 of 2005 (21 June 2005), Gerea v Regina [2005] SBHC 34; HCSI-CRAC 243 of 2004 (4 February 2005) and Talifai v Regina [2011] SBHC 16; HCSI-CRC 85 of 2010 (30 March 2011). It is worth noting that the reference to a maximum discount of 25% referred to from Australian authorities refers only to the utilitarian value of a guilty plea, whereas the English authorities on the same point, particularly in dealing with sexual offences, stress the value of a guilty plea to the victim. A maximum discount of one third may well be considered appropriate in some circumstances.
54. While the guilty plea may have been given at an earliest opportunity, we also bear in mind the utilitarian value noting that a conviction would have been certain without his admission in the circumstances of this case. We are satisfied a discount of 25% should be given for his guilty plea.
55. We note his youthfulness, which were adequately taken into account by the learned judge, that he is a Form 4 student at St. John School in Honiara and that his prospects of rehabilitation are good. As well, we note his lack of previous convictions and that this is his first time to be in trouble with the law.
56. The court below also took into account that reconciliation had occurred and compensation paid. As pointed out in R. v. Asuana^[11] by his Lordship, Ward CJ., that while any custom compensation may be considered as going towards mitigation, it is limited in value. “The Court must avoid attaching such to it that it appears to be a means of subsequently buying yourself out of trouble.” Primarily it allows reconciliation to take place and peace and harmony to be restored amongst the parties and families of the victims and the Respondent.
57. Taking the discount of 25% together with those other mitigating factors, we are satisfied the sentence of 21 years should be reduced by 6 years to 15 years.

Decision.

58. We are satisfied a sentence of 15 years imprisonment correctly reflects the criminality of offending in this case.
59. In the circumstances, we allow the appeal as it relates to the ground that the sentence imposed of six and half years was manifestly inadequate. The orders to have the time spent in pre-trial custody to be deducted from the total sentence imposed of 15 years, should not be disturbed. We direct that the sentence is to be effective from the date he was taken into custody.

Orders of the Court:

1. Allow the appeal.
2. Quash sentences of 6 ½ years imposed for each count (counts 1 – 5) and substitute with 15 years imprisonment for each count (counts 1 – 5).
3. Direct that the sentences imposed in counts 2 - 5 to be served concurrent to count 1.
4. Direct that the sentence is to be effective from the date he was taken into custody.

Goldsbrough (P)
Palmer (CJ)
Member
Gavara-Nanu (JA)
Member

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^[1] [2005] HCA 37; [2005] 222 CLR 67; 218 ALR 521; 155 A Crim R 458 Gleeson CJ, McHugh, Gummow and Hayne JJ at 70; 522; 461.
^[2] 1992, at page 107, paragraph B1.26
^[3] 1 Cr App R (S) 228 (at p. 230)
^[4] [1979] 1 Cr. App. R. (S) 202: Roskill LJ, Bristow and Michael Davies JJ.
^[5] Peter Sade Kaimanisi v. Reginam CRAC 3 of 1995 (23^rd February 1996).
^[6] [1908] 1 Cr App R 180,
^[7] [1926] 19 Cr App R 4,
^[8] Rongodala v Regina [2006] SBCA 2; CA-CRAC 008 of 2006 (25 May 2006)
^[9] [2005] SBCA 5; CA-CRAC 024 of 2004 (4 August 2005)
^[10] [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013)
^[11] [1990] SBHC 52, HCSI-CRC 34 of 1990