Regina v Pude [1995] SBHC 103; HC-CRC 037 of 1994 (27 April 1995)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 37 of 1994

REGINA

-V-

BANDU PUDE

High Court of Solomon Islands
(Palmer J.)

Hearing: 27/4/95
Sentence: 27/4/95

F. Mwanesalua for Prosecution
P. Tegavota for the Defendant

PALMER J: The ‘Accused’ has pleaded guilty to a very serious charge under the Penal Code; that of manslaughter, which carries a maximum penalty of life imprisonment. However, that does not necessarily mean that the maximum sentence would be imposed. Obviously, there are categories of seriousness. The circumstances surrounding the commission of the offence and the cause of death must be taken into account.

The facts as read are undisputed. It is clear that the offence arose as a result of the aggression of the deceased. The facts indicated clearly that the ‘Accused’ was not angry and had no reason to fight. He was dragged into the fight by the deceased. Even after the first exchange of blows and struggle, the ‘Accused’ demonstrated a very responsible and mature attitude by agreeing when asked by those who had intervened, to shake hands with the deceased.

It was the clearly provocative action of the deceased, in punching the ‘Accused’ and causing bleeding to his nose, which made the ‘Accused’ angry and react in the manner that he did.

It seems to me that had the blow landed in any other part of the body of the deceased, no serious injury would have resulted and no subsequent death.

The report of the Doctor performing the post-mortem noted that the spleen which had been damaged was enlarged and that made it susceptible to injury even with minimal force as where the deceased was kicked or the knees used on the spleen area. The principle of ‘egg shell skull’ therefore would also be relevant here.

I note also the learned submissions of Counsel for the ‘Accused’ that the ‘Accused’ did not have any intent to cause the death or serious injury to the deceased.

I accept that a guilty plea has been entered and therefore due credit must be given.

I also take into account that the ‘Accused’ is a foreigner here on temporary work permit and that the deceased is also a fellow country-man.

I take into account that the ‘Accused’ has been incarcerated since the 15th of July, 1994 until the present. Being a foreigner in a foreign prison will have its own difficulties and hardships, especially where this ‘Accused’ hardly speaks English and maybe a little pidgin.

I note that little communication has been made with his family and that these all would add to the severity of the term of remand in prison that this ‘Accused’ has encountered.

I also bear in mind that this ‘Accused’ has behaved well in prison and that his Counsel has been able to pass the comments of the Prison Authorities in his favour, and I take that into account.

A similar case for comparison is the case of Regina -v- Garunu [1985-1986] SILR 192, in which the ‘Accused’ was sentenced to prison for 3 years. However, the facts in that case are sufficiently distinguishable to this. The ‘Accused’ in that case had kicked the deceased when he was on the ground and therefore it was not justifiable or warranted.

The unlawful force in contrast in this case was applied during the struggle and after a clear provocation from the deceased.

Taking all factors into account I am satisfied that a sentence of 12 months imprisonment is proper, with effect from 15/7/94. The ‘Accused’ is convicted and so sentenced.

The ‘Accused’ having served a substantial part of it, I accordingly order that he be released forthwith.

A. R. PALMER
JUDGE