Regina v K [2006] SBHC 53; HCSI-CRC 419 of 2005 (6 December 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 419 of 2005

REGINA V. "K"

(Palmer CJ)

Date of Hearing: 24th November 2006
Date of Sentence: 6th December 2006

N. Mirou for the Crown
K. Averre for the Defendant

Palmer CJ.:

You have been convicted of the most serious crime under our Penal Code Act, which is murder. The sentence for murder is a mandatory life sentence. Every adult person that is above the age of 18 years old that is convicted of murder is given a life sentence.

Although you have been convicted of that crime by this Court, on appeal the Court of Appeal determined that the mandatory life sentence does not apply to juveniles, that is, persons below the age of 18 years old.

This court determined that at the time of commission of the crime of murder, you were only 14½ years old. That took you out of the range of a mandatory life sentence though the maximum sentence which the court could still impose is one of life imprisonment.

Facts of the case.

You were convicted of the murder of Brother Patteson Gatu, a Melanesian Brother and one of six brothers killed in April 2003. That was an appalling murder for they were innocent victims of what you, Ronald Cawa ("Cawa"), Harold Keke and others presumed they were engaged in. They were members of the Church of Melanesia and servants of the Lord Jesus Christ with a mission to bring peace to warring and conflicting parties. They willingly went between warring factions to bring messages of hope, love, peace and reconciliation including the Government of the day in an effort to exorcise the deception, hatred and evil that had entered the hearts and minds of those involved in the conflicts. Instead they suffered the punishment of death, which about forty years ago in this country was reserved only for murderers. Today the death penalty is no longer available. But they were not murderers, not by any standard. They were not even spies but even if somehow they were, what was it that warranted their execution immediately, nothing. Spies at the most in other countries are given a fair trial and if convicted imprisoned, hardly killed. Those brothers never got a fair trial like you and the others who killed them. While all you could offer for transgressing as "spies" was death without a fair trial this nation offers through its criminal justice system that what is fair, just and impartial. You did not show mercy and so it may be asked, why you should be shown mercy. But that is exactly what this nation offers to you, justice and mercy. The very things you have denied those brothers, this nation has offered to you. Instead of a mandatory life sentence, a period of time in prison or in a detention centre.

Today I want you to understand that life is not all about justice. For if I am to apply justice to you, you deserve to go to prison for life. No, life is as much about love, mercy, forgiveness, kindness etc. And the reason why I am highlighting these to you today is because as I pass sentence on you to day, I want you to become an ambassador of peace, love, mercy, law and order when you get released from prison into your community.

Mitigation.

I take into account the following factors raised in your mitigation.

(i) The circumstances in which the offence was committed was a period of violence and armed conflict. As a young person you were given very little choice. It was a question of survival and deciding who to support and where to go; most unfair choices for a young person to be exposed to. You were exposed into that situation by others older and who ought to have been more responsible but instead decided to take up violence as the means to achieve their goals and shed innocent blood. I view that as a mitigating factor in your case. It would have been different if the situation was normal and you elected to take up life as a criminal and resort to violence.

(ii) The area you lived in was one of the worst areas in Guadalcanal under the control of the notorious war lord, Harold Keke ("Harold") and his band of followers. Harold exerted a cult like authority and following and everyone was expected to follow his orders to the letter. What he says was the law. Anyone who questioned them were shot, tortured or beaten up. Those immediately below him, like Cawa also exerted much influence and control over those below them. In this instance, it has never been in dispute that the orders to kill Br. Gatu came from Cawa who says in turn that his orders came from Harold. Again I find this to be a mitigating factor in your favour. You were never really in control of your life from the beginning although as has been conceded by yourself, this was a voluntary decision taken by yourself when you decided to join up with Harold’s group and aligned yourself with their aims and goals. The decision to kill Br. Gatu however was never one taken by yourself in your own initiative. You were following orders. I take that into account.

(iii) Although you were directly responsible for killing Br. Gatu there were others older than yourself who have been convicted for the murder of the other five Brothers and serving life sentences, including Cawa, Isa and Kejoa. Those who may be regarded as the big fish in this case therefore have all been separately convicted and serving their sentences. I am entitled to regard you as a small fish when contrasted with them.

(iv) I take into account what your lawyer says that you had never really denied what had transpired although you had entered a not guilty at the beginning. The defence raised was compulsion but which this court rejected.

(v) You have no previous convictions. But for the circumstances in which you found yourself in, you may never have ended up before this court for these offences. You have not been to court before.

(vi) I accept submissions from your lawyer, Mr. Averre that you have cooperated with police since your arrest.

(vii) Your age at the time of commission of offence is a mitigating factor especially when viewed in the light of the circumstances of the offence. It is your age that has made the difference between a mandatory life sentence and one where the discretion of the court may be exercised as to the penalty to be imposed.

(viii) Remorse. I accept your Counsel’s submissions that you are genuinely sorry for what has happened. The eyes of your mind are now enlightened to realize the folly and stupidity of the actions of those who misled you at that time. Violence begets violence. It is a divine principle in life that whatsoever a man soweth that will he reap also.

(ix) Culpability. You should not be made to shoulder the full responsibility of this murder when there were others who stand in greater control, responsibility and authority in the organization than yourself. You were a pawn in the picture. There were others who decided the moves and pulled the strings. If they had not given the orders to kill, you would not have done it of your own volition.

(x) Pre-trial detention. I take into account that you have spent a very long time in prison waiting for your trial. Three years is a very long time by any standard. However, that must be balanced with the fact that our resources were simply not able to cope with the demands and pressures placed upon it to accommodate any earlier trial date in your case and others. I must give credit for the fact that during your period in prison you have behaved yourself and not become involved in any way in any uprisings or prisoner riots in the last three years. I take particular note of submissions of learned Counsel, Mr. Averre in your case that in some Commonwealth jurisdictions, like Canada legislation have been enacted which say that the period spent in pre-trial detention is doubled when calculating the time already spent and which goes towards the final sentence. Although we do not have similar legislation, it is my respectful view that such approach should be considered for say pre-trial detention periods above 12 months. For the purposes of this case, the most I am prepared to consider would be a one third increase, so that for purposes of calculating the period already spent in custody towards the final sentence, the prisoner in this instance would be entitled to have an additional ⅓ of that period reduced from the total sentence. Where a period of 3 years therefore has been served, an additional period of one year ought to be taken into account in calculating the total sentence. So for example where a sentence of six years is imposed, a period of one year ought to be deducted as well on top of the 3 years that he has already served.

(xi) Motive. I note submissions of your Counsel, Mr. Averre on this matter that there were underlying issues which plagued the Guadalcanal uprising and in which as a young person you got caught up without much choice and opportunity to reflect on the reasons and basis for recourse to violence as a means to an end. That was a terrible time in the history of this nation and I can accept you were very unfortunate to have been misled and deceived into a course of action without having the opportunity to think through and consider the implications, consequences and folly of your actions. I believe you have had ample time in prison to reflect on life and the real issues that matter and that when released you will stay away from the use of violence to achieve your goals.

(xii) Risk of repetition. Your lawyer assures me that you have reformed whilst in prison and that repetition of such offences is highly unlikely. He says you have learned your lesson. I am prepared to accept his submissions in this instance for the primary reason that the offences were committed at an abnormal time in the history of this nation. Now that the situation on the ground has been normalised with the rule of law restored and law and order back on track the likelihood of re-offending is highly unlikely.

Comparative Sentencing.

I accept in terms of comparative sentencing this is the first of its kind that has come through for this court to consider the appropriate sentence to be imposed in a murder case where the defendant is a young person. The circumstances as well in which the offence was committed also distinguish this case from other cases. In a way this also separates this case from comparative cases in other jurisdictions where murders were also committed by young persons and sentenced to lengthy prison sentences.

I bear in mind the guidelines set out in the Convention on the Rights of the Child regarding how young persons ought to be treated. That the best interests of the child should be the central concern in any sentencing process[1] and that care and rehabilitation[2] should be the main focus of any order of the courts on conviction.

I have had the benefit of comparative jurisdictions so amply researched and summarised for my consideration by Mr. Averre and also Mr. Mirou and for which I am greatly assisted as to appropriate sentence to be imposed in this case. I thank them for their conscientiousness and commitment to the court in making sure that the court is properly appraised of all relevant facts, law and commentary.

In Scotland a young person convicted of murder can be detained in a variety of different establishments, depending on their age. If a young person below the age of 18 years they will be sent to a youth custody facility where they are completely separate from adults. After they reach the age of 20 years they would be moved to an adult facility unless the court decides otherwise.

I understand we do now have separate facility for juveniles at the Central Prison complex in Rove and so we in Solomon Islands have also moved forward in terms of looking after our juvenile offenders and keeping them as much separate from adult offenders as possible. The assistance provided by RAMSI to that end is to be commended. If any further improvements need to be made then our Government must take this on board seriously.

The sentence for young persons is made up of time in prison and also supervised time in the community after the prison sentence is served. The purpose as defined in the Youth Criminal Justice Act (2003) Scotland is to hold young persons accountable for their actions by imposing just sanctions with meaningful consequences and also to help them rehabilitate and reintegrate into society. The time in prison addresses the issue of accountability and sanctions whilst the time under supervision in the community relates to reintegration and rehabilitation.

In Solomon Islands, whilst we now do have a juvenile detention centre, the supervision bit in the community is a matter yet to be properly coordinated. Previously the Social Welfare Office in the Ministry of Health used to provide Social Welfare Officers who could provide that supervisory role in the community. However as responsibilities, needs and requirements grow the Office has not been able to cope with the growing work needs. It is my hope that this very useful role provided by that Office would be strengthened and expanded so that youths like this prisoner can continue to be supervised when they do leave the formal prison set up and seek to rehabilitate and reintegrate back into society. Their progress can be monitored and any assistance can be channelled through such office.

In New Zealand, the mandatory punishment for murder is life with a minimum of ten years to be served before the prisoner is eligible for parole. The difference in New Zealand is that a young person would not be detained in an adult prison but in a small unit, run by the Department of Child, Youth and Family Services. Unlike in Scotland, they can serve out their full term in that unit.

In Canada the maximum which can be imposed was increased from three to five years and eventually to 10 years. The normal sentence usually falls within the 6 years period though it could be extended to the maximum if public protection is considered to be an issue.

Learned Counsel Mr. Averre has also provided a summary of sentences imposed in a number of states, New South Wales, Queensland, Victoria and Western Australia in Australia for young persons sentenced for murder. The sentences and circumstances range greatly from 6 years to one for 45 years with a non-parole period of 35 years. The six years sentence involved an attack on an elderly vagrant in a park by a group of young persons (15 years) whilst the 45 years sentence involved the killing of a stranger and in which the defendant (17 years) boasted to friends about the killing. He was considered to be extremely dangerous and disturbed person.

In Queensland, the sentences ranged from a 5 year detention with a non-parole period of 2 years 6 months by a 16 year old which involved a fight between two youths, to life imprisonment imposed on a 16 year old for the killing of a Japanese tourist. The body was left in a bin and then disposed of several days later. It was described as a worst category of murder, no remorse, no motive or explanation provided for the offence and considered a danger to the community.

In Victoria there was a conviction for murder on a 15 year old who had gained entry to the home of a 79 year old and killed her. The defendant was sentenced to 16 years imprisonment.

In Western Australia two sentences were recorded on a 16 years and 15 years old youths for murder and each sentenced to 8 years and life imprisonment respectively. In the former case it related to an armed robbery of a store and the proprietor was shot dead by a co-offender. In the latter, it was a persistent and deliberate attack on a 16 year old student in a classroom.

Decision

For the reasons given, balancing the need for accountability on one for one’s actions with just sanctions and on the other hand considerations for rehabilitation and reintegration into society, it is my respectful view that the appropriate sentence is one of 8 years.

Taking into account the fact that about three years had been served in pre-trial detention, I allow one third of that period to be deducted from the total in calculating the period already spent in custody. For the remainder of four years, I am prepared to make an order committing you to the care of a relative or other fit person to be served in the community under supervision from that person. If a suitable person is identified I will require quarterly reports from him/her to be provided to the Social Welfare Office on your performance and progress in the community for the next four years who in turn will file the report back to the Registrar of High Court. That person will be responsible for monitoring and supervising your progress and report back. So this is not a direct release where you may think there will be no accountability. If you do not demonstrate to the community that you mean what you say and misbehave and think that you can get away with it, then you must remember that your total sentence is 8 years and if you re-offend and a bad report is provided, you may find yourself serving the rest of your term in prison. There will be no hesitation in doing so. This is a window of opportunity for you not to spend the rest of your four years in jail.

Orders of Court:

(1) Impose sentence of 8 years for murder.

(2) Period spent in custody to be taken into account.

(3) Allow ⅓ of the period spent in custody to be deducted as well from the total sentence imposed.

(4) The remainder to be served in the community in the care of a relative or fit person.

(5) Require quarterly reports to be prepared for the Social Welfare Office for reporting to the High Court.

The Court.

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^[1] Article 38
^[2] Article 41