Regina v Tongana [2005] SBHC 98; HCSI-CRC 594 of 2004 (26 August 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 594-04

REGINA

-v-

WILLIE TONGANA AND ROLLING RAMO

(Palmer CJ)

Hearing: 22-Aug-05
Sentence: 26-Aug-05

J. Cauchi (Director of Public Prosecutions) for the Crown
M. Swift (Ms.) for Willie Tongana
C. Baker for Rolling Ramo

Palmer CJ.: The accuseds, Willie Tongana and Rolling Ramo ("the Defendants") have been charged with the offence of murder contrary to section 200 of the Penal Code that on the 28th August 2004, they murdered Peter Bo'o Ruibeu ("the Deceased"). They have also been charged with an offence of unlawful grievous harm contrary to section 226 of the Penal Code as an alternate charge.

They were arraigned before this court on 22nd August 2005. They entered not guilty pleas to the murder charge and guilty pleas to the alternate charge of grievous harm. The learned Director of Public Prosecutions ("the Director") proffered no evidence in support of the murder charge and accordingly they were entitled to be acquitted of that charge.

Grievous harm - brief facts

The facts as read to the court were not disputed. They can be summarised as follows. On the morning of the 28 August 2004, a confrontation occurred between the Deceased and another person Sam Dei, in the course of which Sam Dei was stabbed twice in the leg by the Deceased with a small knife. He fled the incident pursued by a group of about five men including these two Defendants.

The Deceased was eventually confronted at a building site and stones and rocks thrown at him. At one point in time, Willie Tongana was seen to have thrown a piece of brick which landed on his leg causing him to fall backwards onto the ground. The group of men continued to throw rocks at him, in particular at his hand which held the knife. At some stage an old man came forward and took the knife from the Deceased. The group continued to throw stones at the Deceased. Rolling Ramo was seen to strike the Deceased around the head area with a piece of timber. Eventually the Deceased managed to get up and stumble away and the Police arrived shortly after and took the Deceased into custody in respect of his stabbing of Sam Dei. This was around 11.10 am. He was taken to Central Hospital for treatment for his injuries, consisting of a large gash wound to one cheek, bleeding from the back of his head and cuts to his legs. He was then taken to the Central Police Station. At 3.00 am the next morning he was taken to the Central Hospital for treatment again as he complained of being sick. He was treated and returned to the Central Police Station. At 10.20 am he was again taken to the Central Hospital where he received further treatment and returned to Central Police Station. Later in the afternoon at about 3.00 pm he was again taken to Hospital but died at about 5.00 pm.

A post mortem report was conducted on the Deceased which concluded he died of severe head injury comprised of "intracerebral/intracranial haemorrhage secondary to a severe blow to the head". It is not disputed the head injury was occasioned during the unlawful assault upon the Deceased by the two defendants and others, however prosecution concedes it is unable to attribute the injury to a particular act of either of these defendants or others involved in the assault.

Willie Tongana - Mitigation

Learned Counsel Ms. Swift for Willie Tongana ("first Defendant") points out in her submission that the first Defendant’s presence at the Shorn Cliffe compound that day was coincidental; he was there to get his truck fixed by someone at the compound. While he was there, the Deceased stabbed another man and tried to escape. The first Defendant then became involved and joined the chase after the Deceased.

He is closely related to both the Deceased and the victim. It is not disputed that the first Defendant assisted in reporting the matter to the Police. I accept submissions he was not directly involved in the events leading up to the chase nor a leader or instigator. I accept his actions were an impromptu response to an initial act of violence by the victim in this matter and that it resulted in the death of the Deceased.

I accept he is a young man and take note of this factor, that he is married and has been the sole breadwinner of his family up to his arrest on 6th September 2004. I accept and note in his favour that the likelihood of re-offending is remote, that this was a spur of the moment incident with no pre-planning. I accept too that the prospects for rehabilitation are good. I take note his personal views expressed to the court of the time spent in custody as having a lasting impact on him and that he is determined to stay away from all forms of trouble.

He has a good track record of formal employment; formerly employed as a security officer at the Australian High Commission and in 2001 – 2003 as a Police Officer in the Star Division. He has no previous convictions and no adverse reports.

I give credit for his guilty plea; this saves this court the expense of a trial and secondly it indicates remorse for his actions.

I also note there is evidence before me not disputed of some form of compensation paid or done in custom between his family and that of the Deceased’s family. This assists with and accords with reconciliatory measures being taken by this Defendant and members of his family to restore relationships and acceptance in the community.

Rolling Ramo – Mitigation

He does not dispute the essential facts though his Counsel points out that he was not involved with the dispute that resulted in the Deceased being chased. He was on his way to work that morning when he came across the incident and sought to participate with the others in apprehending the Deceased. He gave chase and conceded using a piece of timber to strike the upper arm shoulder of the Deceased in an attempt to disarm the knife he was holding onto. It would appear that this may have been the assault which was described as striking the head of the Deceased. He then walked away and did not take any further part in the events after that.

I note his age, a young man of about 22 years, married with a small child. He has a good employment record and has demonstrated a sense of independence, self reliance and willingness to work and make a living for himself, his family and extended family members. He has no previous convictions, a first time offender and prospects for rehabilitation good. The possibility of re-offending appears remote. This is consistent with what he has to say about his time spent in custody pending listing of his trial. His period spent in custody has left a lasting impression on him. This appears to be a one of situation, no pre-planning involved and not part of the initial group which resulted in the altercation and chase which followed.

Credit must be given for his guilty plea; saves court time and demonstrates a manifest sense of remorse.

I accept submission of learned Counsel that this was an incident that went horribly wrong.

Comparative sentences

I have had the benefit of other similar cases involving grievous harm charges had been imposed ranging from six months custodial sentences to 18 months.

In Michael Waraka and George Apuitau v. Regina¹ a sentence of 12 months was upheld on appeal. The two defendants had been convicted of grievous harm after a plea of guilty. The victim was a police officer conducting his lawful duty to arrest the two defendants. They punched the victim and kicked him with boots.

In Regina v. Neemia Boberio² the defendant was convicted after a not guilty plea had been entered. The victim sustained injury consisting of a fractured arm though no weapons were involved. He was sentenced to 18 months imprisonment with 12 months suspended for two years. Another similar case Regina v. Mosi Gasimata³ where the victim also sustained injuries, a fracture to his leg having been kicked with boots, the defendant received six months imprisonment. Regina v. Harton Kana⁴ involved an assault by a husband on his wife with a bush knife on her backside, right hand and leg. The wife had to be admitted to hospital. Youth, reconciliation and no previous convictions were taken into account in mitigation and a sentence of 3 months was considered to be appropriate in the circumstances.

Decision of the Court

It is important to bear in mind that the sentence to be imposed in this case must seek to reflect the seriousness and part played by these two defendants in this case. On one hand, I accept it was a spur of the moment incident. They came into a situation where someone had been stabbed and the offender who happened to be the Deceased had escaped and was being chased. Whilst it is accepted the Deceased may have committed an offence and ran off, the most that the defendants should have done in such circumstances would have been to apprehend the Deceased without using unnecessary or excessive force. They could have refrained from joining the crowd in giving chase and ought to have sought to contact the Police straightaway, or they could have sought to be the mediators and peace makers amongst the crowd and called for restraint instead of allowing their passions to get carried away with the crowd. If they were bystanders looking on they should have sought to intervene with the view to allowing the rule of law to take its cause. Each citizen in this country has duty/responsibility to reign or restraint his brother from taking the law into their own hands especially from seeking to take revenge killings or attacks on another person. By participating with a group to apprehend the Deceased, unnecessary and excessive force obviously was used which had disastrous consequences resulting in the death of the victim, the Deceased. The fact they may not have intended to cause death or serious injury to the Deceased does not exculpate them from what happened. They played a part which resulted in the Deceased sustaining serious bodily injuries to his head and subsequently to his demise some hours later.

The criminal law in this country does not only seek to protect the victims of crimes and the public from lawless behaviour and activity, but it also seeks to protect an accused or defendant from such revenge attacks, killings or personal vendettas.

I accept submissions of learned Counsels in this case that this was an unfortunate incident which had gone terribly wrong. I accept both did not continue on with the assault after the Deceased had been prevented from escaping and disarmed. Willie Tongana actually assisted in contacting the Police and having the Deceased taken into custody for the initial stabbing apart from being taken to the Hospital for treatment for his injuries.

Taking everything said into account on their behalf and taking into account the range of sentences imposed in this jurisdiction for similar offences, I am satisfied a sentence of two years ought to be imposed in this case to reflect the seriousness of the offence as reflected in their participation but also balanced with all other mitigating factors stated on their behalf.

I note that both Defendants have been in custody since September 2004⁵ and to that extent would have served a major part of their sentences. Accordingly I order that they be released forthwith at the rising of the Court.

ORDERS OF THE COURT:

Acquit Willie Tongana and Rolling Ramo of the charge of murder.

Convict Willie Tongana and Rolling Ramo of the offence of unlawfully causing grievous harm to Peter Bo'o Ruibeu on 28th August 2004.

Impose sentences of 2 years each.

The period spent in custody to be taken into account.

Order release of the Defendants at the rising of the Court in view of the fact that a substantive part of their sentences had been served.

THE COURT

ENDNOTE:

1. HCSI-CRAC 15-97
2. HCSI-CRC 24-92
3. HCSI-CRC 114-93
4. HCSI-CRC 161-01
5. Willie Tongana since 6^th September 2004 and Rolling Ramo since 21^st September 2004