Regina v Pese [2008] SBHC 5; HCSI-CRC 594 of 2005 (7 February 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 594 of 2005

REGINA

-V-

MATHIAS PESE

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)
Criminal Case No. 594 of 2005

Hearing: 5 December 2007
Sentence: 7 February 2008

L. Ruschena for the Crown
R. Cavanagh for the Accused

SENTENCE

Mwanesalua, J: I found you guilty of one count of Murder and one count of Abduction and convicted you on these offences on 5 July 2007. They were offences which you committed on 28 April 2003.

Your date of birth and age were not known on the date of your conviction. Your advocate therefore sought and obtained adjournment in order to seek instructions on them from your relatives. The affidavit on your date of birth was made available to the court on 6 August 2007 during mention.

Your case came before the court again for mention on 24 August 2007. Advocate for the crown filed submissions on sentence on 19 October 2007 and your advocate filed reply on 26 October 2007. Oral submissions on sentence were eventually made by advocates to the court on 5 December 2007.

You have been convicted of one count of murder which carries a mandatory penalty of life imprisonment. The issue before this court is whether this penalty should be imposed on you. Your advocate submits that it should not be imposed on you because Section 13 of the Juvenile Offenders Act (Cap. 14) ("The Act") applies to you, as you committed the offence when you were 16 years old. On the contrary, advocate for the crown submits that Section 13 does not apply in your case because you were above 18 years old when you were convicted of the offence.

Section 13 of the Act states:

"13. Notwithstanding anything in this Act to the contrary, when a child or young person is convicted of a grave crime, the court may sentence the offender to be detained for such period as may be specified in the sentence; and where such sentence is passed on a child or young person shall, during that period, notwithstanding anything in the provisions of this Act, be liable to be detained in such place and on such conditions as the Minister may in his discretion direct, and whilst so detained shall be deemed to be in legal custody".

Section 2 of the Act defines a child and a young person as follows:

"Child" means a person who is, in the opinion of the court having cognizance of any case in relation to such person, under the age of fourteen years.

"Young person" means a person who is, in the opinion of the court having cognizance of any case in relation to such person, fourteen years of age or upwards and under the age of eighteen years.

Grave Crimes for purposes of the Act are set out in the schedule to the Act. They are Murder, Attempted Murder, Manslaughter, Unlawful Wounding, Unlawful Poisoning and Causing Grievous Harm.

Your advocate, Mr Cavanagh, submits that this court should look at the decision of the Solomon Islands Court of Appeal in Kelly –v- Regina [2006] SBCA 21, ([1]) for guidelines to decide on whether to impose the mandatory penalty of life imprisonment for murder on you. In that case, Kelly committed murder when he was 14½ years old. He was convicted and sentenced to life imprisonment when he was under 18 years old. In other words, he committed, was convicted and sentenced for the offence when he was still a young person as defined in the Act.

He appealed to the Court of Appeal both against conviction and sentence. The court dismissed his appeal against conviction but allowed his appeal on sentence. The court says, among other things, that Section 13 of the Act, deals specifically with a class of individual, those under 18 years of age who commit murder. That Section 13 qualifies and takes precedence over Section 200 of the Penal Code as regards life imprisonment in the case of the grave crime of murder committed by a child or young person.
On remittal of the case to the High Court to be sentenced as a young offender for murder, Kelly was:

(1) sentenced to 8 years imprisonment

(2) period spent in custody to be taken into account

(3) ⅓ of the period spent in custody to be deducted from the total sentence

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

(5) Quarterly reports to be prepared for the Social Welfare Officer for reporting to the High Court.

You were born at Isuna Village on 18 August 1987. You committed your offences in this case on 28 April 2003, when you were 15 years, 8 months and 10 days old. You were arrested and charged on 26 August 2005, when you were 18 years and 8 days old. You were then convicted by this court on 5 July 2007, when you were 19 years, 10 months and 17 days old.

You were a young person when you committed the grave offence of murder, but were an adult when you were convicted of the offence. On this point, the decision in Kelly-v-Regina does not provide any guidelines on whether you should be sentenced as a young offender or an adult. My opinion is that the material age of an offender for deciding whether the provisions of Section 13 applies to him is his age at the date of conviction and not his age at the date of the commission of the offence. My reasons for reaching this conclusion are: first, is because of the use of the expression offender in the section. That is to say, that a young person is merely referred to as an offender for purposes of sentencing, after his conviction, and second, because the language of the section ties the class and age of the offender to his conviction.

Kelly-v-Regina is distinguished from your case for purposes of sentencing, on the basis that in that case, Kelly was convicted when he was under 18 years of age, whilst in your case, you were convicted when you were above 18 years of age. Section 13 does not apply in your case because it only applies to offenders under 18 years of age.

You were also convicted of abduction. It is another serious offence. You were one of the persons who compelled Palu Buake to go from Duidui Village to Ngalenala beach. You knew that he would be subjected to grievous harm when he reached the beach. And that you took part in inflicting grievous harm to him at the beach.

There is only one sentence for the offence of murder. It is imprisonment for life. You are sentenced to imprisonment for life for the murder of Palu Buake.

Abduction carries a maximum sentence of 10 years imprisonment. You are sentenced to 7 years imprisonment for abduction. You will serve this sentence concurrently with your sentence for murder. These sentences would commence from the date of your conviction on 5 July 2007.

I order accordingly.

THE COURT

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^[1] CA – CRAC 019 of 2006 [25 October 2006]