Regina v Tadakusu [1999] SBHC 111; HC-CRC 239 of 1999 (10 November 1999)

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HIGH COURT OF SOLOMON ISLANDS

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CRIMINAL CASE NUMBER 239 OF 1999

REGINA

v

> VICTOR TADAKUSU

HIGH COF SOLOMON ISLANDS
HEARD: PALMER J.
CRIMINAL CASE NUMBER 239 OF 1999

SENTENCE: 10 NOVEMBER 1999

DIRECTOR OF PUBLIC PROSECUTIONS

FRANCIS MWANESULUA FOR THE CROWN

PUBLIC SOLICITOR (PATRICK LAVERY) FOR THE ACCUSED

This Accused has been convicted after trial rial of counts (1) and (2) for possession of firearms and ammunition respectively, contrary to section 5(2)(a) of the Firearms and Ammunition Act (Cap.80).Count (3) for attempted murder had been with drawn and he was acquitted of said charge. He pleaded guilty to counts 4 and 5 for being a member of an unlawful society contrary to section 68 (a) of the Penal Code, and robbery contrary to section 293 (1) (a) of the Penal Code respectively. I have listened very carefully to the mitigating factors raised by the learned Public Solicitor on behalf of his client. These can be summed up as follows:

(1) He seeks the benefit of a guilty plea to counts (4) and (5) despite the fact trial had partly commenced in respect of those two charges. I accept this submission and treat this Accused as having entered a guilty plea in respect of those two charges.

(2) That this Accused is a first offender and has no previous convictions.

class="Mss="MsoNormal" style="text-indent: .55pt; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> (3) The age of this offender, a young man of twenty years.

(4) (4) That prior to the commission of said offences he was a school student at King George Sixth School and had just completed his sixth student form in November 1998, prior to his involvement with the unlawful criminal and activities of the GRA.

ass="Mss="MsoNormal" style="text-indent: .55pt; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> "> (5) That his future had been affected by his actions and his family as well.

(6) That the Accused has expressed his deep regret to those whose lives had been affected and also to his own family.

(7) That his breach of ball terms were riot done deliberately but due to unfortunate circumstances which occurred as a result of the heightening tension which developed from the activities of the GRA. He had intended all along to appear on the adjourned date despite having breached his bail terms but was arrested anyway before that date.

(8) The fear this Accused and others directly affected by the tension had experienced as well as the sufferings that they had had to endure.

(9) The trauma he had to live through in having bullets fired at him is something he would not easily forget.

lass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> I all those relevant factors tors into account, but must balance them with the following factors. First the offence of robbery. This Accused had been charged with and pleaded guilty, to a more serious charge of the offence of robbery under section 293(1) (a) of the Penal Code, which carries a maximum penalty of life imprisonment. The reasons being that weapons were used; these included firearms and knives. Also the Accused was with a group of men, who were members of the GRA and easily identifiable by their manner of dress; wearing “kabilato” (T bandage made of local tapa cloth from barks o f trees). The activities of this group had caused terror and much intimidation among members of the Malaita Community living around that area and some working at the Tambea Beach Resort. Many had fled voluntarily from their settlements out of fear for their own safety and well being, leaving behind properties, homes and possession built up over many years which had been acquired through valid customary and legal means. The security workers at the Tambea Beach Resort naturally were overwhelmed by the appearance and actions of the group the Accused was with on the night of the 29^th, and the fact they were armed. Virtually its seems ,the security officers at Tambea were paralysed with fear and terrified into submission, in allowing the Water Ski Boat and mariner engine to be removed .Fortunately no shot was fired that night and no one was injured. The circumstances however are very serious. Tambea Beach Resort is a well known local tourist company which seeks to promote tourism outside the country and thereby contribute to the economy of the country by its activities. It is located on a remote part of the island and thereby an easy target by the GRA in the pursuit of its unlawful activities; in particular taking advantage of its facilities, in this case the Ski Boat to further its own purposes. It is such vulnerable targets that this Court has a duty to protect to be reflected in the kinds of sentences it imposes. A prison sentence often years in the circumstances which this Accused was involved and taking into account the mitigating factors referred to would have been appropriate.

class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Sly there was mention of thef the time, money sacrifice and sweat expended by the parents of this Accused to have him educated at one of the best national secondary schools in the country, at King George Sixth School, and the fact there was opportunity for him to go further in his studies. Unfortunately despite having gone through what can be described as an elite school and having his parents invest in him, the benefits of that education appeared not to have sunk in. One of the primary goals of education is to acquire knowledge so that a person like the Accused can use that knowledge to do good not only for himself but for his family, his community ,his village, his province and for the nation at large; otherwise one’s education is basically a waste of time, money and effort. It perhaps would have been better not to be educated, then one could plead ignorance and say I did not know, I was led and misled by people in the know who should have known better what to do. Education is a privilege in Solomon Islands. Not everyone has the opportunity to go to school, so much more to national secondary level. Being an educated young man, having reached the pinnacle of secondary education in the Country and on the verge of stepping out further into better and bigger things, carries a price attached to it; responsibility. The acquisition of knowledge surely must mean responsibility and accountability in ones actions. And if one fails there is a price tag attached, a penalty to be imposed. Education should help one to have a better understanding of his place in society and how things function .Unfortunately for all those six years spent in secondary education ,that had failed to instil in this young man a sense of respect for the law and for property ,life and people; not so much that the education system had failed, it can only do so much but that this Accused had not allowed his education to make him in to a better person in appreciating the value of his place and other people in society. Straight after completing his sixth form studies, he threw away his learning, (rather abused his learning), his knowledge and understanding, and joined up with the group, the “GRA” ,now known as the “IFF” (Isatabu Freedom Fighters), notorious for its criminal and unlawful activities. If this Accused and many others in his position would just the take time to think through the issues carefully, he would come to the conclusion that many people would agree with him, that yes, there maybe justifiable reasons and causes behind the existence and setup of the group. There is no law which forbids the formation and existence of any group which has legitimate claims and issues to raise provided that group works within the framework of the Constitution and our laws .If one wants to start a revolution (by that I mean a fundamental change) in Government for instance, there is nothing to stop one from doing that, provided one works out his or her revolution within the law. There are many instances of persons throughout history who have effected changes in Government without having to take the law into their own hands; just to name a few, Mahatma Gandhi in India well known for his non-violent peaceful protests, the same with Martin Luther King in the United States and Archbishop Desmond Tutu in South Africa. The greatest revolutionary that ever walked the face of this earth is some one all of us are familiar with, the Lord Jesus Christ. He lived under one of the harshest regimes of his time, the dreaded Roman Empire. Criminals and murderers were not executed, they were crucified, one of the most cruel forms of punishment there was. But he did not revolt against the establishment. He did not take up arms to figh t for his cause. He did not use violence and force .The only tools he used were words. He taught for three years and lived what he taught .His words not only affected his society but continued to affect and revolutionise society to the present generation. We take pride in our legal and judicial systems today, we owe it to his words. When one of his followers wanted to take up arms in his defence, he gave us his famous words “Put up again thy sword into his place for all they that take the sword shall perish with the sword” (King James Version Matthew 26:52). There are many ways of achieving change lawfully without having to take up arms, using force and violence and acting criminally. One can use their Members of Parliament to push for changes, one can use their Provincial Members, or Chiefs, Elders in the Community. One can use the Police and of course, the Courts, to have their grievances addressed. If one is not satisfied with these, one can join up interest groups, or pressure groups, to agitate their cause in the media; using the local newspapers and write articles ,or even write a book, some pray. Solomon Islands has been ble and and to that extent, very fortunate, generally speaking, to have laws that are based on principles of fairness, justice, mercy and truthave gone into some lengths explain the difference of achieachieving ones goal lawfully (with in the confines of the law) as opposed to the manner in which the goals of the GRA have sought to be achieved, through violence and lawlessness; a complete disregard and disrespect for the laws of this nation; remove the laws and you will have anarchy where only the strong rule.

Having said that, I t, I must give credit or the honesty and frankness of this Accused in seeking to come to terms with his actions and recognising the irreparable harm his involvement with the group, though for a short time, had had on persons affected. That honesty and sincerity is consistent with his expressions of regret for his actions. I also give particular credit, for the fact he is a young man and for his part in the commission of the offences; not as the main instigator. Those persons are still at large and I repeat my call that those persons must be sought, re-arrested and brought to this Court to account for their actions. To that extent the powerful mitigating factors in favour of this Accused require me to lower the custodial sentence for robbery from ten years to seven.

On the offeof possession of firearms arms and ammunition, the offences were committed in a non prohibited area. There has been no evidence or suggestion made that they were committed in a prohibited area. The maximum penalty for imprisonment therefore is five years. Taking into account the circumstances in which the offences were committed, that he was not the main person actually involved in having those firearms brought into the boat and his mitigating factors, a sentence of two years is imposed on each count.

For the offence of membership of an unlawful society, the maximum penalty is three years. I have pointed out this unlawful society, the GRA, now “IFF”, is notorious for its criminal and unlawful activities. There is nothing to be achieved and to be proud of in joining such group. I take into account the deterrence element in imposing sentence under this count; that all those who join this unlawful society must expect to be sent to prison when brought to this Court. I also take into account this Accused was not one of the ring leaders of GRA, though he acknowledges he was a leader of the group at Tamboko. Also his involvement, fortunately for him, was cut short on his arrest and re-arrest. In my respectful view, the maximum penalty of three years is appropriate in this case, even after those factors had been taken into account and mitigation considered.

If I am to total up the sentence s imposed, that would come to a total of fourteen (14) years. In my respectful view that is too long a sentence for this Accused when all factors are balanced out at the end of the day. The appropriate length giving credit to all mitigation points raised would be one for seven years. The sentences imposed therefore in respect of counts (1), (2), and (4) are to be made concurrent to count (5). The Accused has been convicted under counts (1)and (2), I convict him on counts (4) and(5) as well.

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SENTENCE:

1. SENTENCED UNDER COUNT (1) FOR POSSESSION OF FIREARMS, TO IMPRISONMENT FOR 2 YEARS; TO BE CONCURRENT TO COUNT (5).

2. SENTENCED UNDER COUNT (2) FOR POSSESSION OF AMMUNITION, T0 IMPRISONMENT FOR 2 YEARS; TO BE CONCURRENT TO COUNT (5).

3. SENTENCED UNDER COUNT (4) FOR BEING A MEMBER OF AN UNLAWFUL SOCIETY, TO IMPRISONMENT FOR 3 YEARS; TO BE CONCURRENT TO COUNT (5).

4. SENTENCED UNDER COUNT (5) FOR ROBBERY, TO IMPRISONMENT FOR 7 YEARS.

5. THE PERIOD SPENT IN CUSTODY IS TO BE TAKEN INTO ACCOUNT.

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