Regina v Saeniorea [2005] SBHC 173; HCSI-CRC 036 of 2004 (15 February 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 36-04

REGINA

V.

CHRIS SAENIOREA,
JOHN KWAEOTA,
WILLIAM ANIFISARI

(Palmer CJ)

Date of Hearing: 15th February 2005
Date of Sentence: 15th February 2005

M. McColm for the Crown
M. Anders for the first Defendant
M. Ipoh for the second Defendant
R. Ziza for the third Defendant

Notes of Sentence-Palmer CJ: The Defendants were each charged with the murder of Moses Tutu ("the Deceased") on 26th April 2003 at Lalana Village, Langa Langa Lagoon, Malaita Province to which they each entered not guilty pleas. They were however also charged with an alternative count of assault causing actual bodily harm contrary to section 245 of the Penal Code, to which they each entered guilty pleas on arraignment. The Information containing the alternative count was filed on the same date they were arraigned and so it can be safely concluded and due credit given that their guilty pleas had been taken at the earliest possible time after instructions had been received from their legal Counsels. The murder charge was immediately withdrawn and the alternative charge substituted.

The facts, in printed form and submitted to court, set out in very clear detail reasons for the withdrawal of the murder charge and the substitution of the alternative charge of assault causing actual bodily harm. These were agreed to by Defence. I have also perused the facts and accepted the alternative charge in lieu thereof. The medical report of the doctor who carried out the post mortem on the body of the Deceased concluded that the cause of death was a direct result of a blunt trauma applied to the head and neck area. It was not disputed that the fatal blows to that extent had been applied by Saeniorea (Snr), now deceased. This was material evidence for the Prosecution to consider whether the Prosecution case could sustain a joint enterprise allegation including all three other accuseds. The only other injuries contained in the medical reports of the Doctor relate to bruisings and soft tissue damage to the body and neck consistent with the assaults alleged to have been inflicted by the three Defendants.

The facts disclose another of those compensation related demanding cases which inevitably resulted in a fight and sadly a death. The courts in this country have repeated often that people must learn to resort to peaceful means of settlement of customary disputes breaches or problems and not resort to resolving them in a way which will merely provoke trouble or disturbance. The way of demanding compensation must be tailored to the way the law allows, not the way it used to be done in days gone by where demands are presented or made with threats usual accompanying that trouble would be caused, whether blood shed or property damaged. Today that approach is unlawful and wrong. If there is a grievance or offence whether in custom or otherwise, the law provides ways of dealing with them. In this instance, it is not in issue that there was some swearing or abusive words used which provoked the Deceased naturally to require that compensation be paid. Whether he had right to demand compensation to be paid or not is not in issue before this court. It must be understood though that the most one can do is to request that compensation be paid. If refused that does not give the person making the demand right to resort to threats or violence. That kind of behaviour in turn is an unlawful, a crime and punishable under our laws.

Chiefs elders even church pastors can be requested and should be used to assist in the settlement of such disputes or customary offences. Individuals directly affected should not make the approaches themselves because quite often these lead to further trouble being caused especially where the request is refused. It must be borne in mind that whilst a demand for compensation is not illegal or unlawful per se, it becomes an offence when accompanied by threats or force.

The facts disclosed that the Deceased was drunk when he approached the Defendants at their home village. He did not go alone but in the company of others. It is not disputed that the others with the exception of one other remained behind in the canoe when he went to demand the compensation. A confrontation occurred when the Deceased met up with Saeniorea (Snr) and an argument followed. It escalated into a fight following which the Deceased was struck with a piece of iron or pipe on the back of his head or neck area. The Deceased fell down and was also seen to have been further attacked by these three Defendants by kicking or punching. At some stage they left the Deceased and turned their attention on the Deceased’s friends in the boat and threw stones at them.

I note Saeniorea (Snr) is now deceased as a result of the shooting done by Edmund Sae at the Auki Police Station. Saeniorea (Snr) was in custody at the time of the shooting and was unfortunately killed in that shooting incident. These Defendants therefore have also suffered the loss of a loved one though not directly connected to the incident for which they have been charged with. That killing however has had the effect of severing responsibility for the death of the Deceased in this case and thereby ultimately resulting in the reduction of the charge to one of assault causing actual bodily harm.

I have listened carefully to mitigation said on behalf of the Defendants. The incident was unfortunate but could have been avoided had the Deceased exercised discretion in not attending personally to ask or demand compensation at that time. There were aggravating factors or matters which would readily cause the situation to erupt into violence. There is evidence which seems to indicate that even the manner of approach of the Deceased was inappropriate resulting in a confrontation occurring and eventually a fight. There were others as well who had accompanied the Deceased on that trip.

I accept the assaults occurred on the heat of the moment, were not premeditated or planned and that it was an unfortunate event. They have had to bear the pain of the loss of a life as a result of what has happened, I accept they have been remorseful about the incident and that they have had to bear also the pain of loss of their father. I accept they have reconciled with the Deceased’s family and that there is no continuing animosity between their families. They are all first offenders. I have had opportunity to consider the various cases provided as to the sort of range of sentences for this type of offence in the lower court. These range from fines to sentences of imprisonment up to 18 months and in some instances part or all of the sentence has been suspended in full, depending on the facts of each case. Taking into account the part played by these Defendants in assaulting the Deceased when he fell an appropriate sentence would be 9 months imprisonment. Giving due credit for the guilty plea three months can be taken out giving a sentence of 6 months. Balancing other factors I am satisfied an appropriate sentence is one of 4 months. I note from submissions of Counsels for the Defendants that all had spent up to 3 months in custody waiting for their trial until they were released on bail by this court in February 2004. In the circumstances I am satisfied the Defendants can be released on the rising of the court.

Orders of the Court:

1. Convict all three Defendants, Chris Saeniorea, John Kwaeota, William Anifisari of the offence of assault causing actual bodily harm.

2. Impose sentence of four months imprisonment, period spent in custody however is to be taken into account.

3. Having been satisfied that a substantive part of that sentence would have been served by the Defendants whilst in custody, order that they be released on the rising of the court.

The Court.