IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name: 	Tamaika v R 	
		
Citation:		
		
Decision date: 	1 August 2024	
		
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Keniapisia PJ)	
		
Court File Number(s):	7 of 2023	
		
Parties: 	Kevis Tamaika v Regina 	
		
Hearing date(s): 	29 May 2024	
		
Place of delivery: 		
		
Judge(s): 	Muria P
Palmer CJ
Gavara-Nanu JA	
		
Representation: 	B Ifuto’o for the Appellant 
P Waisanau for Respondent 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Correctional Services (Parole) Regulation 2014	
		
Cases cited:	R v Ome [1980] SBFJCA 3, Kaboa v R [1980] SBFJCA 1, Ludawane v Regina [2017] SBCA 23, R v Chambers [1983] 5 Cr App. R (S) 190, Hou v Reginam [2015] SBCA 23	
		
ExTempore/Reserved:	Reserved 	
		
Allowed/Dismissed:	Allowed	
		
Pages:	1-6	

JUDGMENT OF THE COURT 
1. 	The appellant was originally charged with murder but subsequently reduced to manslaughter on the basis of diminished responsibility. He also faced four (4) other charges: Unlawful Wounding (2 Counts), Grievous Harm (1 count) and Assault Causing Actual Bodily Harm (1 count). The appellant pleaded guilty to all the charges. The High Court sentenced him to life imprisonment for manslaughter; two (2) years imprisonment for each of the counts of unlawful wounding; one (1) year imprisonment for grievous harm; and one (1) year imprisonment for assault causing actual bodily. The sentences are to be served concurrently. The appellant is to serve 20 years of imprisonment before he is entitled to parole.
Brief Background
2. 	It is not necessary to set out the detailed factual background of this case. Suffice to say that this is a very serious case involving the use of a weapon (bush knife). There were 5 victims, including the deceased who was 9 years old, and they are all very close family members and relatives of the appellant. The appellant’s action was described as a “cutting spree” incident at Nukuma’anu village, Bellona Island. The 9 year old deceased sustained multiple wounds from the appellant’s bush knife resulting in her death.
The Grounds of Appeal
3. 	The appellant raised three grounds of appeal namely:
1.	That the learned Sentencing Judge erred in fact and in law in sentencing the appellant to life imprisonment for manslaughter after the appellant had raised the defence of diminished responsibility.
2.	That the learned Sentencing Judge erred in fact and in law in failing to specify a starting point for the minimum term in this case.
3.	That the learned Sentencing Judge erred in fact and in law in fixing a high minimum term to be served by the appellant, before the appellant is eligible for parole resulting in a minimum term that was manifestly excessive in the circumstances.
4. 	However, Mr. Ifuto’o of Counsel for the appellant, only pressed upon the Court to consider ground 1, that the sentence of life imprisonment is manifestly excessive in the circumstances of this case. Counsel submitted that the proper sentence should be in the range of 12 to 15 years imprisonment.
5. 	The sentences on the other counts are to be left untouched. This is because those sentences would be left to run concurrent with whatever the sentence this Court imposes on the manslaughter charge.
Concession by the respondent
6. 	At the hearing of the appeal before this Court, Ms. Waisanau of Counsel for the respondent conceded the appellant’s submission that the sentence of life imprisonment on the charge of manslaughter is manifestly excessive. Counsel, however, suggested that in the circumstances of this case, a proper sentence should be in the range of 15 to 18 years.
Determination
7. 	Since the central issues in this appeal is conceded by the respondent, the only question for this Court to determine is: what is the proper term of imprisonment for the appellant to serve in the light of the facts of this case. The appellant submitted that it should be in the range of 12 to 15 years, while the respondent says that it should be in the range of 15 to 18 years. Both Counsel find support for the range of sentences they suggested from the cases decided by the High Court, as well as, by this Court in previous cases.
8. 	We are mindful of the valuable guidance derived from sentences passed by the Courts in previous cases. There is, however, a need to point out the difficulty the Court faces in simply comparing the present case with previous cases unless the factual circumstances of those cases are similar to the present case. See R v Ome [1980] SBFCA 3; [1980 -1981] SILR 27 (27 June 1980). It must be remembered that each case must be considered under its own factual circumstances and to take heed of the caution expressed in Kaboa v R [1980] SBFJCA 1; [1980 – 1981] SILR 43 (27 June 1980) that sentencing is not a “mathematical exercise” whereby the parties to the case are attempting to resolve the “one size fits all” conundrum. What counsel should be doing is to assist the Court in exercising its discretion so as to achieve the fundamental requirement of consistency in approach to sentencing as alluded to by Justice Sir Bruce Robertson, his sentencing Address, Conference Paper, Journal of South Pacific Law volume 2023.
9. 	We wish also to reiterate that the Court’s discretionary power remains fundamental in sentencing. This is because, sentencing is a balancing exercise. In the present appeal the justice of the case cannot be simply achieved by comparing the sentences in the previous cases to that passed by the Judge in the Court below for manslaughter in the present case, for the purpose of determining what is the appropriate sentence. In this regard it is important to bear in mind the basis upon which the Court’s discretion is exercised.
10. 	Having said all that, in this case, we feel that as a result of the concession made by the respondent, this case can be taken out from the Ludawane v R [2017] SBCA 23; SICOA – CRAC 27 of 2027 (13 October 2017) scenario. Both Counsel submitted that the guidelines in that case ought to be used in this case which would justify a starting point of 15/16 years imprisonment.
11. 	Not only that present case is one of manslaughter, but we feel that the facts of this case do not sit well with those of Ludawane where the offender who is the father of the deceased, knowingly and mercilessly, with rage and brutal intent, beat his son to death. The facts of that case revealed nothing less than a torture done to a son in the name of discipline for stealing a water-melon. This Court very properly placed the Ludawane case in the range of 15/16 years as a starting point.
12. 	The present case is one of a manslaughter killing by a mentally deranged offender. Mental impairment is a factor, relevant to sentencing. It assisted the sentencing judge in assessing the culpability of the offender at the time of the offending. Depending on the evidence before the Court, the sentencing judge would have options open to him as to what would be the appropriate sentence to impose on the offender. See R v Chambers (1983) 5 Cr. App. R (S) 190; and Hou v Reginam [2015] SBCA 23; SICOA-CRAC 9 of 2014 (9 October 2014).
13. 	On the facts of the present case, although very serious in the circumstances described by the sentencing judge as a “human cutting spree,” our view is that this case falls within the category range of 12 years as a starting point as mentioned in the Guidelines referred to in Ludawane. Having considered that 12 years as a starting point in this case, we do not think that it is incumbent on us to proceed to fix a minimum term to be served before being eligible for parole. The Correctional Services (Parole) Regulations 2014 sets out the process to follow by those who are eligible for parole.
14. 	The learned sentencing judge heard the evidence and assessed the appellant’s culpability and formed the view that the gravity of the appellant’s offending was “beyond serious and of high magnitude.” We have no reason to disagree with His Lordship’s view. In the circumstances and with the starting point of 12 years, we give the appellant 25% reduction as mitigation benefit for his early guilty plea. This would result in deducting 3 years from the starting point of 12 years. However, with the aggravating features of his offending as described by the learned sentencing judge, we determine that a period of 6 years should be added to reflect those aggravating features.
15. 	For the above reasons, we are satisfied that the appropriate sentence in this case is one of 15 years imprisonment.
16. 	The appeal is allowed. The sentence imposed by the sentencing judge in the Court below is set aside. The new sentence to be served by the appellant is one of 15 years imprisonment with effect from the date he was taken into custody.
Muria P
Palmer CJ
Gavara-Nanu JA