Regina v Tutala [2004] SBHC 37; HC-CRC 022 of 2002 (5 May 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 022 of 2000

REGINA

-v-

PATTESON TUTALA, MESACH PITAKAKA

HIGH COURT OF SOLOMON ISLANDS
(F.O. KABUI J.).

Date of Hearing: 3 May, 2004 at Gizo.
Date of Judgment: 5 May, 2004.

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

SENTENCE

Kabui, J.: You Mesach Pitakaka pleaded guilty to the charge of common assault, contrary to section 244 of the Penal Code Act (Cap. 26)(the Code). The maximum penalty for this offence is imprisonment for one year provided the assault is not committed in circumstances for which a greater punishment is provided in this Code. This means that the offence of which you were charged is a misdemeanour not being a felony that is why the maximum penalty is only one year imprisonment. When you committed the offence, you were 13 years old and therefore a child under section 2 of the Juvenile Offenders Act (Cap. 14) (the Act). But due to inordinate delay by the Prosecution to prosecute you within a reasonable time, you are now 17 years 4 months because it is said you were born in December 1986, designating you a young person under section 2 of the Act. You are therefore entitled to be dealt with under section 16 of the Act. The charge had been hanging over your head for 4 years and 8 months. You had also been in custody at Honiara for a year and 5 days before you walked out free when the Rove Prison was opened for all inmates to walk out free following the coup on 5^th June 2000. You had originally been charged with your brother Patteson Tutala for the murder of the late Thaddeous Rukumana and thus the reason for your detention at Rove Prison in 1999. I have considered the options open to me in section 16 of the Act. I have come to the conclusion that in your case, it serves no useful purpose to send you to prison or to fine you. I will dismiss the case against you and you to go free under section 16 (a) of the Act. I order accordingly. In doing this, I am mindful of the language used in section 16 of the act which presents itself to ambiguity and therefore open to more than one interpretation. The relevant words are “...where a child or young persons charged with any offence is tried by any court, and the court is satisfied of his guilt...” The words “any court” as read with section 4 (1) of the Act in my view, include the High Court and the words, “satisfied of his guilt” quoted above mean a conviction recorded after due trial or conviction on a guilty plea as it is in your case. As I have already said above, you were 13 years old at the time of the offence. You and your brother had paid compensation of $30,000.00 to the relatives of the deceased. I want to give you another chance in life to be a good citizen once again. Do not misunderstand me and do not boast about me dismissing the case against you because I have done it to you because you are a young person and I do have the power to do it under the law of this land. You may now leave the dock.

You Patteson Tutala, your position is much more serious because you directly caused the death of the late Thaddeous Rukumana. You pleaded guilty to manslaughter, an offence that carries a maximum penalty of imprisonment for life. A guilty plea is a point in your favour. You paid compensation to show remorse, although your Counsel did not go far enough to emphasise that point in custom practice to the court. Compensation in cases such as this serves two purposes in custom. First, the offender acknowledges guilt to the family and relatives of the deceased by agreeing to pay compensation. Second and the most important is the re-establishment of good relation with the family and relatives of the deceased from then onwards upon payment of compensation. The bad chapter is closed and sealed. You also co-operated with the Police. You have a family – 5 children and a wife to leave behind. You are of good character with no previous conviction. The charge against you had been hanging over your head for 4 years 8 months for no fault on your part. However, the offence you committed and for which you pleaded guilty is so serious that you will go to prison for it. You used a torch as the weapon against the deceased which the doctor’s report says caused bleeding inside the brain of the deceased causing him to die. The deceased had already been semi-conscious when his body reached the hospital at Gizo and later died in Central Hospital in Honiara. You must have used considerable force when you hit the head of the deceased with your torch. Your case is a difficult one to deal with because you had already been in detention for 12 months and 5 days and then you had not been prosecuted for over 4 years. These factors have to be taken into account in your case. In R v. Maclean Lawrence, Criminal Case No. 98 of 1993, the prisoner was sentenced to 4 years imprisonment following a guilty plea to manslaughter. The prisoner had kicked his wife on the abdominal part of her body causing her death to follow. In R v. Gabriel Wakio and Martin Manehai, Criminal Case No. 19 of 1998, I sentenced the prisoners to 2 years imprisonment following a guilty plea to manslaughter. The prisoners had killed their own brother who was a former inmate of Kilu’ufi Mental Unit with a piece of timber. In R v. Patricia Melvin Kala, Criminal Case No. 17 of 1999, the prisoner was sentenced to 4 years imprisonment following a guilty plea to manslaughter. The prisoner had killed her husband with a kitchen knife. In R v. Banu Pude, Criminal Case No. 37 of 1994, the prisoner was sentenced to 12 months imprisonment following a guilty plea to manslaughter. The prisoner had killed the deceased due to extreme provocation by the deceased. In R v. Dickson Maeni, Criminal Case No. 117 of 1999, the prisoner pleaded guilty to manslaughter and was sentenced to 12 months imprisonment. The prisoner had shot and killed another person without the necessary intent to kill. The facts and mitigating factors in the cases I have cited are not on all fours with the facts and mitigating factors in your favour. I am of the opinion that the proper sentence in your case is 2 years imprisonment effective from 3^rd May 2004 the day you went into custody pending your sentence today. The 12 months and 5 days you had been in detention at Rove will be deducted from the 2 years imprisonment sentence I pass on you today. (See R v. Bandu Pude cited above). You will only serve the remaining balance of the 2 years which will see you out of prison soon. The system of punishment under our criminal law justice system is sometimes seen as prisoner biased in that it places to such emphasis on mitigating factors in favour of the prisoner and nothing is said about the sorrow suffered by the victim if alive or the relatives and families of the victims if he or she is dead in homicidal cases. I suppose, all crimes are committed against the Queen, the State or Government if you like to call it that for simplicity’s sake because the Police being the law enforcement agent and other agencies of the government are the prosecutors of all offenders against the law though there is room for private prosecution in a limited way. Because of that, the system becomes one of applying the criminal law and its practice against the rights of the prisoner as a human being and an individual facing the might of the Police and other associated government law enforcement agencies. I suppose human rights are protected in both ways in that the victim of a crime is protected by prosecuting the offender and the offender is also protected by the law if he or she is convicted and sentenced to serve his punishment for the crime he or she committed. The criminal law system in custom is individual or tribe biased in that the strongest survives. I think that is the general distinction between the two systems and this is why ordinary Solomon Islanders are mystified about the operation of the criminal law system in Solomon Islands. In custom, there were only three methods of punishment, namely, death, compensation, or banishment. There were no niceties at play. Compensation has survived the other two methods to this present day. I have no pleasure in sending you to prison today but it is my duty to do so as a judge under the law.

F.O. Kabui
Puisne Judge