Regina v Tungale - Sentence [1999] SBHC 124; HC-CRC 012 of 1997 (7 May 1999)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 12 of 1997

REGINA

-V-

BEN TUNGALE, BROWN BEU, NELSON OMA, JAMES SALA, LOUIS LIPA, CHARLES MEAIO AND JOHN TETI

High Court of Solomon Islands
(LUNGOLE-AWICH, J)

Hearing: 13 July 1998
Sentence: 7 May 1999

SENTENCE

(LUNGOLE-AWICH, J): The 7 accused were charged and tried for the offence of murder under s: 193 of the Penal Code (now s:200 in the 1996 Revised Edition). They were all acquitted of the offence of murder. Ben Tungale, Brown Beu, Nelson Oma, and James Sala were convicted of manslaughter under s: 192 of the Penal Code (now s:199 in the 1996 Revised Edition). The remaining 3, Louis Lipa, Charles Meaio and John Teti were convicted of common assault under s:237 of the Penal Code (now s:244 in the 1996 Revised Edition).

The four convicted of manslaughter have different domestic circumstances, but the weight to be given to those different domestic facts, in my view, is the same. An important consideration for all of them is that they did not use potentially lethal weapon. I warn that this Court will in future impose heavier punishment where lethal weapon such as a knife is used.

As far as Sala and Oma are concerned, I take into account that they were called upon and in a way pushed into acting by words of swear, which according to evidence, suggest substantial urging in custom. The three convicted of common assault were similarly pushed. They are entitled to some reduction from the punishment appropriate for their acts resulting in the offence. They must, however, note that being asked to do something wrong is not excuse in law.

Brown Beu is also entitled to some reduction. He was pained at the adultery of the deceased with Lama, Brown’s wife, although that again is not excuse in law for doing something wrong. The Court has been informed that Beu’s wife has since gone away with another man.

I have taken into account the personal material losses of Ben Tungale and the fact that he is now very sorry, and has paid money in custom for settlement, but for that, the punishment herein would have been greater. His part in the incident was that of the leader. He urged the others into action.

On the other hand, I have to warn that the Court has a duty to punish appropriately according to how serious the offence and the circumstances are. Judges, like everyone, do have sense of mercy, but they have a duty to reflect how serious the law would like an offence to be regarded and punished for. I think offences resulting into loss of life are serious, courts must not allow punishment in them to descend to levels comparable to punishments for offences involving property, such as theft, burglary etc.

I have compared the circumstances in this case with those in the cases that counsel cited. I have taken them into consideration. I am grateful to counsel for citing cases from this jurisdiction. I, however, observe that punishment in one case usually cannot be matched exactly with punishment in another. Circumstances usually differ even if only in details. Public view about how serious an offence is regarded also changes. Prevalence or otherwise of an offence during particular periods also counts. It is, in my view, not useful to compare punishments in cases from different jurisdictions.

The punishments that I order in each of the convictions for the manslaughter in this case are:

1. Ben Tungale: 5 years imprisonment.

2. Brown Beu: 4 years imprisonment.

3. Nelson Oma: 3½ years imprisonment.

4. James Sala: 3½ years imprisonment.

Each of the 4 terms of imprisonment is back-dated to the respective dates when the accused was first taken into custody.

The punishments that I order in each of the convictions for common assault are:

1. Louis Lipa: 1 (One) year imprisonment.

2. Charles Meaio: 1 (one) year imprisonment.

3. John Teti: 1 (one) year imprisonment.

The three have been in custody on remand for more than 1 year. It is to be regarded that they have served the terms of imprisonment herein. I order that they be released forthwith.

All accused have right of appeal and may note appeal within 30 days.

Pronounced this Friday the 7th day of May 1999
At the High Court
Honiara

Sam Lungole-Awich
Judge