HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 100-03

Regina

v

Lawrence Mana

Date Hearing: 20 – 24 February 2006
Date of Judgment: 24 February 2006
Date of Sentence: 21st March 2006 (delivered at Gizo)

R.B. Talasasa for the Prosecution
Ms. E. Garo for the Defendant 

Palmer CJ.: After the hearing of Lawrence Mana’s case at Gizo on Friday 24 February 2006, I gave judgement and convicted him of the offence of manslaughter but did not hear mitigation as I had to leave shortly thereafter. I adjourned mitigation to be heard in Honiara on Wednesday 1st March 2006 at 1.30 pm in his absence, of-course after his consent was obtained and after I had agreed to release him on bail pending sentence. After mitigation I reserved to enable me to travel back to Gizo to deliver sentence. I now do so.
 
Lawrence Mana ("Mana") is originally from Feralau Village, North Malaita Province, but for all purposes he is from Western Province, having now lived in the Province for some twenty years or so and made Fishing Village at Gizo, his home. He does not engage in any formal employment apart from fishing and selling his catches at Gizo market. At times he carries bags of sand for payment. He does not have consistent or regular means of income.

He is married with six children and a wife to support; two of his children are at kindy and one daughter attends Vura Community High School in Honiara. She resides with relatives but Mana pays for her expenses and school fees.

He is a member of the Anglican Church and since his release from custody on 14 February 1999 he has been actively engaged in church activities. He holds the position of catechist at his village at Gizo.

He estimates his age at some forty plus years but date of birth unknown. 

He has two previous convictions according to records from the Criminal Records Office (Police); (i) he had been convicted on two counts of common assault on 26 February 1985 before the Principal Magistrate Gizo and sentenced to six weeks imprisonment, each made to run concurrent to each other; (ii) convicted for drunk and disorderly on 27 May 1991 by the Gizo Kolombangara Local Court and sentence to two weeks imprisonment. He therefore has one previous conviction of a minor violence related offence and a drink related offence, both of which he has served time in prison. I note the offence for which he has been convicted here is also drink and violence related. I do bear in mind though what Ward CJ says in R. v. Henry Su’umania, regarding where there is record of previous convictions:

"When sentencing persistent offenders the court must make protection of the public the principal consideration in determining the length of sentence.

It is well settled however that even in such cases the sentence must be still be appropriate to the offence and the court must be careful not to sentence the accused for his previous convictions as was explained by Spreight JA in Kaboa v. R (1980/81) SILR 43 at 46. Thus, whilst previous good character may reduce a sentence, previous bad character cannot increase it beyond the proper term but the court can and should consider previous convictions in assessing the character of the man before it and the likelihood of his changing his ways." (emphasis added)

In Kaboa v. R. (supra) the Court of Appeal held per Spreight JA at page 46:

"Some mention need also be made of the reliance placed on the appellant’s previous conviction. The proper scope for such consideration was discussed by this Court in Peter Rimae v. Reginam, Criminal Appeal No. 62 of 1974, Judgement of the Court delivered by Gould P. on 17th March 1975. Reference was made to Betteridge 1943 28 CrAppR 171 and to Casey 1931 NZGLR 289 – the Court should be careful to see that a sentence of a prisoner previously convicted is not increased beyond what would be appropriate to the facts merely because of previous convictions. Previous convictions are relevant to establish a prisoner’s character." (emphasis added) "

It is important that the court is mindful of the fact that when sentencing a man with previous convictions and of the need to protect the public, it guards against the tendency to sentence for past convictions. 

I bear in mind too that those two previous offences occurred some 13 and 7 years in the past.

On the issue of delay raised by learned Counsel, Ms. Garo, that is a relevant mitigating factor in this case. Mana was held in custody immediately after commission of the offence from 14 March 1998 to 14 February 1999 a period of some 11 months. That would be equivalent to a sentence of 16.5 months if one third remission is taken into account. I note Ms. Garo submitted that that period would be equivalent to a 33 months custodial sentence but that is not correct. A 33 months custodial sentence with one third remission would mean he would have had to serve 22 months in custody. He only served 11 months. 

It has long been held by the courts that delay will generally have the effect of reducing sentence. In R v Fred Gwali & John Morrison (Unrep. Criminal Case Nos. 21 of 1997 & 1 of 1998) Kabui J stated at page 3:

‘[A] long delay in prosecuting criminal cases may have the effect of reducing a custodial sentence imposed by the Court.’

In Patterson Runikera v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 14 of 1987) Ward CJ commented at page 2:

‘Delay generally affects the sentence in three ways. It increases the anxiety of the accused man who has it "hanging over him" for that time. This will obviously only apply from the time of discovery of the offence – any delay before that is entirely in the hands of the offender. The second factor relates to the plea because any person must realise that, the greater the delay, the more chance the prosecution will be unable to prove their case. Thus, a plea of guilty entered with that knowledge becomes a strong mitigating factor. Finally, it gives the offender a chance, denied to many accused, of showing that he really does intend to reform and stop offending.’

A court must consider whatever the cause whether the delay was ‘unreasonable’, see R v Fakatonu [1990] SILR 97 at page 100.

A court is also obliged to consider whether the delay has resulted in some unfairness to the offender.

In R. v. Todd [1982] 2 NSWLR 517 (CCA) Street CJ said at 519-520:

"… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence: at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 

In R. v. Miceli, Tadgell J said: 

"Most particularly is the matter of delay between the commission of offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life. That is what happened here."
 
Since 14 February 1999 Mana has had to wait for some 7 years for his trial to be heard. A substantial part of that delay was not due to his fault bearing in mind the period from late 1999 to 2003 when the country was plunged into a period of lawlessness. Had his trial been heard earlier and a conviction entered, any sentence imposed would have been served by now. Whilst the delay may not have been entirely unreasonable, it is still substantial and issues of fairness are pertinent to the circumstances of his case. It must be construed in his favour when considering the appropriate sentence to impose. 

A longer deterrent sentence would not serve the interests of justice anymore than have the detrimental effect of a shocking experience for him. I bear in mind submissions of learned Counsel Garo that punishment should not be served too late so that it becomes a punishment in itself and does not serve its original purpose. The need to balance principles of retribution and deterrence becomes all the more critical after such a lengthy period of delay with the need for justice to be administered timely and swiftly, a fortiori where the circumstances of this manslaughter offence fall in the lower range of seriousness. Also real prospects of rehabilitation must have significance in this case where Mana has been at large for the past 7 years and mitigation reveals he has ordered his affairs consistent with a view to reorganising and reforming his life. He has taken a more active role in church activities in the village and also taken it upon himself to assist in looking after the widow and her family after appropriate measures taken to reconcile himself with the family members of the Deceased. 

By entering a not guilty plea he loses any benefit of a guilty plea but that would not attract the imposition of a penalty more serious than would otherwise have been imposed. In R. v. Gray [1977] VR 225, at page 231, the Victorian Court of Criminal Appeal summarised what the correct approach is:

"It is impermissible to increase what is a proper sentence for the offence committed in order to mark the court’s disapproval of the accused’s having put the issues to proof or having presented a time-wasting or even a scurrilous defence." 

Although a trial has been held in this instance, it does not follow that a sentence any longer than what is appropriate taking all factors into account should be imposed.

I note submissions of learned Counsel Ms. Garo that whilst the maximum sentence which can be imposed is life imprisonment, the nature of the offence and circumstances of the offender must be considered. The maximum sentence is to be reserved for the worst type of offence cognisable within that section. A life sentence is to be imposed only in the worst category of cases. In Carter’s Criminal Law of Queensland the learned Authors identified the following conditions which could be considered by a court when deciding whether to impose a sentence of life imprisonment:

"(i) where the offence is itself grave enough to require a very long sentence; (ii) where it appears from the nature of the offence or from the defendant’s history that he is a person of unstable character likely to commit such an offence in the future; and (iii) where, if the offence is committed, the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence". 

When the circumstances of this case and the offender are contrasted against those conditions it is clear this case cannot be viewed to be in the higher range of seriousness or attracting the maximum sentence. The unlawful action consisted of a push which in normal circumstances would not have caused death apart from perhaps some minor injuries which may have occurred as a result of falling on the ground or on some hard object. The medical report of Dr. Stirling who carried out the medical examination of the Deceased states that most likely the Deceased suffered a heart attack as a result of that push. The Deceased was known to have been on anti-hypertensive treatment for high blood pressure. The Doctor’s observations were that such arguments and physical activity could have precipitated either a stroke or heart attack. He concluded:

"Thus I find that on balance and without histological evidence it is likely that the deceased died of natural causes albeit most likely precipitated by an unnecessary act of aggression."

I note the push occurred as a result of the Deceased approaching Mana, not vice versa. There is no evidence to suggest that after pushing Bae and the Deceased initially, he attacked or did anything to the Deceased. It was the Deceased who approached or confronted Mana when he was pushed. A push is a lesser form of force being applied compared to a punch or a kick. In any event Mana must bear responsibility for what transpired that evening. He was under the influence of liquor when he went to the house of the Deceased. He took a knife with him when he went, was angry and aggressive and used the knife in a menacing and threatening manner by cutting the post of the verandah of the Deceased’s house, causing it to fall down. That naturally brought out the older son, John Siake Wao, to argue with him. It also resulted in the Deceased, an elderly man, to confront Mana as well. Mana’s actions were unnecessary and needless. There were no enemies to brandish a knife for. All those people were his family members or related to him in one way or another. 

I do bear in mind though that at some stage he had been disarmed and was not holding any knife.

I give credit for his initiative in paying compensation to relevant family members of the Deceased. Ms. Garo says he has paid $2,000.00 cash and five red money ("tafuliae"). On 25 June 2000 after his release, he has also paid some form of compensation to the widow in the sum of $880.00 cash and one red money. This has enabled him to remain within the family circles of the Deceased and to be accepted back into Fishing Village at Gizo. On top of that he has also been assisting the widow, who is an auntie of his wife. 

Although he has not demonstrated remorse by entering a not guilty plea, it is clear he has accepted the consequences of his actions and taken responsibility for them by paying compensation. He has thereby reconciled with the family members of the Deceased and their relationship normalised. They are related to each other and were neighbours. They are still neighbours and continue to live in the same village. I take that into account. 

A call was made by Mr. Talasasa when presenting the antecedents and previous convictions of Mana for the death penalty to be reintroduced into this jurisdiction. Unfortunately I simply cannot see or understand the relevance of that call in this case, where the offence is manslaughter and maximum sentence is only for life imprisonment, a fortiori where the facts reveal the maximum sentence does not apply. More serious cases of manslaughter have come before this court; this is definitely not one of them. No weapon was used in the unlawful act. There is no evidence to suggest that the push was anymore aggressive, forceful or even intentional. The call by Mr. Talasasa for the death penalty to be re-introduced to that extent is totally uncalled for, misplaced and should not have been raised. The death penalty is not the law in this jurisdiction even for murder, but even if it were the case, it would have been irrelevant and inappropriate to the circumstances of this case. The proper place would be in a debating chamber, discussion group, appropriate conference or other venue, not in this case before this court. I draw Counsel’s attention to The Legal Practitioner’s (Professional Conduct) Rules which provides useful and broad guidelines to help Counsels in their conduct and behaviour in court. For example, rule 4(a)(v) states that "It is the duty of a legal practitioner – (a) not to engage in conduct (whether in pursuit of his profession or otherwise) which - …v) may otherwise bring the legal profession into disrepute; …." In rule 16(2) it provides: "A legal practitioner shall not knowingly deceive or mislead the court." In sub-rule 16(5) "A legal practitioner shall ensure that the Court is informed of any relevant decision on a point of law or any legislative provision of which he is aware and which he considers to be relevant, whether it be for or against his contention." Whilst these are broad guidelines they should help counsel to determine what is permissible or not permissible in court. A legal counsel is obliged to ensure that the court is not misinformed of any irrelevant decision on law or any legislative provision of which he is aware, or on any other issue. The court should not be used as a forum to pursue one’s interests on a matter/topic, debate or discuss academic questions, or to sensationalise issues which have no relevance to a case. The question whether capital punishment should be re-introduced raises very serious issues and which require clear thought and reasoning by appropriate authorities for consideration. This case is not definitely the place for it to be raised.

Taking all relevant factors raised into account and giving due credit for them, it is my respectful view that an appropriate sentence in this case would have been one around the range of 18 - 24 months. I am satisfied a sentence of 20 months would have been appropriate. Had delay been not so lengthy in this case, the defendant would have been required to serve the full sentence. Having served a substantial part in remand and bearing in mind the delay and other mitigating factors raised, justice and fairness warrants that Mana be released at the rising of the court and I so direct.

Orders of the Court:

1.	Impose sentence of 20 months.
2.	The period (11 months) already spent in custody to be taken into account.
3.	Having served a substantial part of the term of imprisonment whilst in custody, Mana is to be released at the rising of the Court.

The Court.