Regina v Hei [2007] SBHC 91; HCSI-CRC 447 of 2006 (19 July 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 447 of 2006

REGINA

–V-

EDILY HEI

(Faukona,J)

Date of Hearing: 29th June 2007
Date of Sentence: 19 July 2007

Mr Nicholas Mirou for the Prosecution
Mr Edward Cade for Defence

SENTENCE

FAUKONA J: The Accused Edily Hei was charged for the offence of Manslaughter contrary to Section 199 of the Penal Code.

1. Section 199 (1)

Any person who by an unlawful act or omission cause the death of another person is guilty of the felony known as manslaughter. An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to preservation of life or health, whether such omission is or is no accompanied by an intention to cause death or bodily harm.

2. Section 199(2):

Any person who commits the felony of manslaughter shall be liable to imprisonment for life.

3. The accused entered a plea of guilty, at first instance when he was arraigned.

4. Admitting culpability for one’s unlawful act, demonstrated an admission of all the elements and facts of the offence. What now remains is an imposition of an appropriate sentence to match, the part and role the accused played in the Ogio saga operation.

5. The accused has admitted and liable for the unlawful death of the deceased Mr John Tova by virtue of Section 22 of the Penal Code.

Section 22

Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

Facts of the Case

6. On 27th May, 2003, early hours of the morning, approximately 3.00am, the accused was woken by the Guadalcanal Liberation Front (GLF) members who attended at his village at Veravaolu in the Uraghai Valley. The GLF members are members of more than forty(40) and were variously armed with high powered rifles, bush knives and sticks. They came from villages outside the Uraghai Valley and are under the command of Ronny Cawa.

7. The accused and others were instructed by Ronny Cawa to participate in the operation against the Joint Force Group (J.O.G.) controlled villages in the Uraghai Valley. Ronny Cawa divided the GLF group into four(4) small groups and assigned them to attack various villages in the area. The purpose of the attack was to respond to a JOG operation about one(1) week before, during which a GLF controlled village was burnt down.

8. The accused was ordered to go with the group assigned to attack Ogio Village. Ronny Cawa directed the Ogio group to split into two and enter Ogio Village from two directions, along the two main roads leading to Ogio Village. The accused was in the second group which entered Ogio village from the North East.

9. Ronny Cawa’s group walked into Ogio village from the South and went directly to a home where JOG members were on watch. There were three JOG members on the watch. They were John Tova (deceased), Riloe Rassile and Weatily Tova. All three JOG members were armed with high powered weapons.

10. There was a short struggle with the deceased who attempted to use his fire-arm. Eventually he was shot on the leg by Cawa. Ronny Cawa then used his fire-arm to shoot John Tova (deceased) in the head. The deceased died of that injury a short time later.

11. The accused with the other group entered Ogio Village from the North-East and assisted Cawa’s group destroying Ogio village.

12. On 12th January 2004, the body of John Tova was exhumed from Ogio village. On the 18th January 2004, Pathologist, Dr Dodd conducted a post mortem on the body and made the following findings as to the cause of death:

13. The accused Edily Hei comes from Uraghai Valley, an area in the Weathercoast of South Guadalcanal. He has spent rest of his working life as a subsistence farmer, tending his gardens, until the advent of the conflict.

14. Being at home for the rest of his past life, right up to the conflicting years in the Weathercoast area, he would have known the two major rivalries, GLF and JOG well, their aims and the purpose of their formation. The accused opted to join GLF, though not a member. He sympathized with the aims of the GLF which was to assist the rights of indigenous Guadalcanal people to their land and resist violent activities of JOG.

15. Being a supporter of GLF he would have been well versed with the organization and its hierarchy and its leadership attitude who exercised strict control. Any person who disobeyed the directives of the organization were killed. The accused knows quite well the reputation of Ronny Cawa, who was known for violence on South Guadalcanal at that time.
16. On the date in question the accused was invited to join the operation against Ogio Village. Knowing Cawa’s reputation he was afraid of what might happen if he refused to go on the operation. However, he did join the operation and did not attempt to refuse or flee when the opportunity arose and he did engage in the destruction of some houses in the village.

17. The fact that the accused was there and physically engaged in unlawful common purpose – an operation to terrorize Ogio Villagers with a group of men he knew were GLF members, under the leadership of Ronny Cawa, whom he knew were armed with military firearms – and they were in prosecution of an unlawful purpose, and in doing so, committed another offence, which was a probable consequence of prosecuting the common purpose. The other offence committed is of course the unlawful killing of the deceased, Mr John Tova.

18. By submitting himself to support a military organization with past records of atrocities and criminal activities, is allowing himself to subject to commands and orders of the organization’s leadership; whether he likes it or not. In doing so he has given himself up to the authority and rulership of Mr Cawa. He has no freedom to make decision for himself, and a space to decide what is wrong and what is right, and determine his own course.

19. From the mitigating facts the accused was not armed on the day of the operation. He was merely an obedient servant to the orders of Cawa. His counsel submitted that duress is not an excuse or a mitigating factor here, as the accused has a personal support for GLF.

20. During the operation the accused with others were at the end of the village when Cawa killed the deceased. He was not directly responsible for pulling the trigger. But responsible for the unlawful death of the deceased by virtue of Section 22 of the Penal Code; for participating and involving in the unlawful operation to prosecute a common purpose which consequently led to the killing of the deceased.

Personal Background

21. The accused is a married man, aged thirty six(36). He has three children aged, ten, seven, and three respectively. As a man he is expected to support and to provide and sustain his family, including his elderly mother who also lives with his wife and children. He is uneducated, and perhaps because of his illiteracy he could be easily manipulated.

22. In mitigation the Counsel for the accused submitted that the accused felt remorse for his actions and for the role he played in the events at Ogio Village. This has been demonstrated by entering a plea of guilty to the charge of manslaughter. His plea of guilty at the earliest possible opportunity when he was arraigned. Admission at an earliest opportunity renders no expenses for the state in bringing in witness from the Weathercoast and accommodated them in Honiara for weeks. At the same time, it eases strenuous work in conducting trial and sitting in Court for long hours for weeks.

23. Traditionally feeling remorseful and plea of guilty attracts discount sentence from what would have otherwise imposed. And I have taken that into account.

24. The accused has never fallen foul of the law previously. His appearance in court now is his first time. He has been a good and a law-abiding citizen until the rise of the social conflict. Now the prevailing circumstances of Solomon Islands have changed and the conflict has ended. As first offender demonstrated his previous good character and discount must also be considered and awarded to him, and I do so accordingly

Delay:

25. The counsel for the accused submitted that period of delay has been recognized as a factor to mitigate punishment. He refer to the case of Regina –v- Gwale and Morrison (unrep- Criminal Case No. 21 of 1997) and 1 of 1998 per Kabui J, stated at page 3.

26. Whilst I agree with the comments made by Kabui J, the Court must also consider whatever the cause and whether the delay was unreasonable, see R –v- Fakatonu (1990) SILR 97.

27. Noted from the records that the accused was first arrested on 12th October, 2005. The case first went before the Magistrates Court on 26th October 2005. On 6th October 2006 a short form preliminary inquiry was conducted. On the same dated PI papers were sent to the High Court under a memo dated 6th October 2006. On 6th March 2007 was the first date the case was set for call over in the High Court.

28. I noted there are some delay. However, it would be acknowledged that the period from the advent of RAMSI in 2003 and upward, a good number of high profile and tension matters were heard by the Central Magistrates Court and the High Court as well.

Of course, it would be accepted that listing and prosecuting is delayed, but not to the extent as to be regarded as unreasonable delay. One year and eight months delay in prosecuting and completing the case is not a worst situation. However, delay in prosecution in the circumstances of Solomon Islands at the time of the offence should not amount to substantial mitigating factor.

Circumstances of the offending

29. Counsel for the accused also submit that the offence was committed during the civil conflict. Had it not for the conflict the accused would not have committed the offence. I do not seem to accept the assertion, because the accused have already had fore knowledge of the atrocities and activities of GLF and yet submit himself to support and personally involve in their plan operations.

30. I would not also accept the fact that because the offence was committed during the civil conflict, it demands lesser punishment. One way of saying it, is because of the civil conflict, the accused could not be able to resist in involving in the activities of GLF. This is contrary to early submissions that the accused could have fled or refuse to join the operation when the opportunity arose. His persistent in supporting and involving in GLF operations without second thought demonstrated his true support.

31. Each case has to be decided upon in its own factual situation. And the civil conflict which this nation has gone through is an exceptional situation where law and order are in total disarray. Hence the sentencing approach must be equated with the circumstances surrounding the case.

Level of Culpability

32. Also noted from the mitigating factors that there were about forty (40) men who took part in the operation, including the accused. Some walked a long distance from their homes to participate in the operation. They knew the purpose of the operation. They were briefed on the operation by Harold Keke and they carried military firearms. They took an active part in unlawful killing of the deceased, Mr John Tova and at another place they participated in the unlawful killing of the persons they had abducted. Yet they are not charged.

33. The accused initially did not attend any briefing from Harold Keke. He was not armed. He did not walk long distance to join the operation. And was not aware of the ultimate purpose of the operation. Yet he was the only person charged with this offence relating to that place and time and was not even charged for an offence of arson.

34. I have taken note of these submissions and the level of culpability of the accused. That will be determined upon his role and participatory involvement in the operation. Charging of a person is the sole responsibility of Police. Courts only deal with persons who have been charged and appear before them.

35. In considering an appropriate sentence to impose, let me at this juncture thank the Counsel for the accused for submitting twenty six cases where the High Court of Solomon Islands had imposed sentences for manslaughter charges. The sentences imposed ranges from two years to ten years. Most of the cases the offences were committed in normal circumstances.

36. Upon perusing the cases I picked two cases I consider to be most appropriate to this one. The two cases are where the offences of manslaughter were committed during the ethnic tension period.

37. They are:

(i) Ligabatu –v- Regina (2006) SPICA 19; CA-CRAC 002 of 2006 (23.11.06).

(ii) Regina –v- Andrew Tonawane, Pattison Saeni, and Others (2004) CRC No. 231 of 2004.

38. In the first case there are four appellants. All of them were charged for murder and convicted in the High Court in September 2005, and were each sentenced for life imprisonment. The offence occurred in 2001.

39. They appealed to the Court of Appeal which later found that Mr Ligabatu and Mr Honitele were guilty of manslaughter and imposed a sentence of eight(8) years imprisonment for each. In this case the two accuseds’ responsibility in the killing is by virtue of Section 22 of the Penal Code.

40. On the second case, four accused were charged for manslaughter and had entered a plea of guilty at first instance. Some of them were involved heavily with the Malaita Eagle Force. They were armed at the time when they got the deceased from his home, and eventually continued assaulting him until he died. They were sentenced to two and a half years, three years and three and a half years respectively.

41. There are some similarities in factual situation from the two cases, taking into account the background situation of Solomon Islands those days. I am of the view that sentence on Andrew Tonawane of the second case is an appropriate guideline.

42. In this case the accused, Mr Hei, does not pull the trigger but part of the criminal responsibility under Section 22 of the Penal Code. He was not armed on that day. He was not a member of GLF but a supporter and involved in the operation. The degree of culpability is therefore less. A sentence after trial would be 3½ years, however, taking into account matters said in the mitigation, his age, his personal background, his plea and with clean previous record the appropriate sentence is 2½ years imprisonment to date from the date of his arrest and placed in custody, 12th October 2005.

THE COURT