Regina v Bela - Sentence [2004] SBHC 36; HC-CRC 100 of 2002 (4 May 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 100 of 2002

REGINA

-v-

KENNEDY BELA

HIGH COURT OF SOLOMON ISLANDS
F.O. KABUI

Date of Hearing: 3 May, 2004 at Gizo.
Date of Judgment: 4 May, 2004.

J. Cauchi and H. Kausimae for the Crown.
E. Garo for the Prisoner.

SENTENCE

Kabui, J.: You were charged with attempted murder, contrary to section 215 (a) of the Code to which you pleaded not guilty. After your trial, I convicted you of that offence of attempted murder. The offence of attempted murder is a serious one carrying the maximum penalty of life imprisonment. However, section 24 (2) of the Code says that a person convicted of an offence for which the maximum penalty is imprisonment for life may be sentenced to a shorter terms of years, being a custodial sentence for that matter. The exact number of years in custody is for me to determine in your case. This is not an easy thing to do in your case. Attempted murder is not a prevalent offence in Solomon Islands and so any sentencing guide that one may look for does not exist. Each case has to be considered on its own facts. In R v. David O’ofania, Criminal Case No. 14 of 1975 which I cited in my judgment, Bodily, C.J. sentenced the prisoner to 6 years imprisonment for attempted murder committed on his wife. That case arose from a family problem unlike in your case where the problem was one between neighbours in the same community. In your case, the problem was a petty one in the beginning in that you perceived the victim’s conduct as being intentional towards you demonstrating an arrogant disposition. You said in evidence that the sago palm tree could have been made to fall elsewhere than into the river and the fact that it fell into the river blocking it was intentional on the part of the victim to hurt you and to disrupt your plan to sell your copra. You perceived that as being the victim’s motive for disregarding the need to remove the sago palm tree from the river having been made aware of that need in the morning before he left to play volley-ball. You perceived that attitude as provoking and intentional.

However, you are the older of the two of you. The victim was then 17 years, a teenager who was immature and did not see and appreciate your situation as you saw it. It is pertinent to note that your wife’s concern for the need to clear the river of the sago palm tree was communicated to the victim by his mother. The chopping of the sago palm tree was also done on the instructions of his mother. The best approach would have been to remind him through his mother or father whom he was obliged to obey and not to confront him face to face. The other approach was for you to clear the sago palm tree yourself to enable you to sell your copra. Cutting off the sago palm tree branches would not have been too difficult to do I did not think. If the victim could do it surely you could do it also. Your approach on meeting him near your canoe house and engaging him as you did was not the wise thing to do in that situation. Matured persons must behave like matured persons in dealing with young persons who are full of energy and can easily be excited in the way they do things. You disturbed the hornet’s nest and the bees came to attack you. You also seemed to have over-reacted to the arrival of the victim at your house. You could have fired into the air if really you had to scare him off but you did not. You could have left your house and gone elsewhere for a little while to avoid any further possible confrontation but again you did not. You stood your ground and shot the victim. You are lucky that the victim did not die otherwise you would have to serve imprisonment life. You have not shown remorse nor effected any reconciliation between you and your family and the victim and his family. I have noticed that you have moved back to Munda, your place of origin, perhaps never to return to Tuki village again and so reconciliation is of no immediate concern to you. Your two previous convictions were for minor offences not involving violence and therefore are not relevant. You co-operated with the Police in the investigation of the offence. You have a wife and children who will miss you. However, a custodial sentence is appropriate in your case. Section 24 (3) of the Code cited by your Counsel does not apply to your case. I do not have the discretion to fine you in lieu of imprisonment.

The major factor in your favour is the delay in prosecuting you for this offence. The delay is over 5 years and 8 months. The offence had been hanging over your head for that long in contravention section 10 (1) of the Constitution which demands that an accused person be brought to trial within a reasonable time. According to Principles of Sentencing by D.A. Smith, 2^nd Edition, reprinted in 19082 at page 4 mitigation is not considered a right of the offender. At pages 91-92, the author points out that the most common category of attempted murder concerns attacks upon the wife by the husband and the range of recorded sentences are between 5-7 years. R v. David O’ofania cited above does fall into this category with a sentence of 6 years imprisonment. D. A. Smith says however that cases falling outside the husband and wife category are not that many so as to provide a useful guide as to the average of sentences for them. The author suggests that the upper limit for these sorts of cases be 14 years to emphasise intent being the principal ingredient of attempt to be proved than malice aforethought in murder. There is however no suggestion as to what should be the lower limit. In my view, attempted murder is the same for all cases in terms of the maximum penalty imposable. Some form of provocation is always present in domestic disputes giving rise to incidents of attempted murder but it does not however mean that in other cases some form of provocation cannot arise resulting in over-reaction developing quickly into intent to cause death that by chance does not occur. In my view the case of R v. David O’ofania cited above represents the mid-point sentence for attempted murder in Solomon Islands. There can be cases warranting higher custodial sentences above this or below this mid-point depending upon the circumstances of each case at hand. The appropriate sentence I am imposing on you is 3 years imprisonment to be effective yesterday the day you went into custody in Gizo. I have been lenient on you because of the delay committed by the Police in prosecuting you within a reasonable time. But I feel I cannot be more lenient than that or else the justice system of this land would run the risk of losing touch with the feeling of the community. Whilst I may be criticised for being too lenient on you, the community must also understand that every person in this land does have a right to be protected under the Constitution, and one of those rights as I have said is the right to be tried before an impartial tribunal with a reasonable time. A delay of more than 5 years without acting within a reasonable time must be held in your favour in your case. You are lucky indeed to get off with only 3 years imprisonment for attempted murder. You of course do have the right to appeal against your sentence.

F.O. Kabui
Puisne Judge