Regina v Toito'ona [2008] SBHC 76; HCSI-CRC 304 of 2008 (12 December 2008)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 304 of 2008

REGINA

V

BENJAMIN TOITO’ONA

Date of Hearing: 28 November 2008
Date of Judgment: 12 December 2008

Ms. R. Townsend and Ms. F. Taeburi for Crown
Mr. C. Baker for Benjamin Toito’ona

SENTENCING DECISION

Cameron PJ.

1. The defendant Benjamin Toito'ona appears for sentence for the offence of manslaughter, having been convicted on 1 December 2008 for the unlawful killing of Eddie May Kulumae. He had previously been charged with murder, and his trial on that charge had commenced on 20 November 2008. However, on 26 November 2008, while the prosecution case was still proceeding, the defendant pleaded guilty to a new indictment charging him with manslaughter in respect of the same incident. A nolle prosequi was subsequently filed in respect of the murder charge.

2. Briefly the facts are that on the evening of 31 August 2007, at a location beside the Mataniko River, Honiara, the defendant fatally stabbed Eddie May Kulumae with a knife.Both had been drinking Kwaso and it is clear that the defendant was in a belligerent mood. He was overheard threatening to kill a person he had been drinking with (not the victim), which I take to be indicative of his belligerence rather than as a serious threat. It is clear that he was making a thorough nuisance of himself with the victim, repeatedly asking for drinks of Kwaso. The victom sought on more than one occasion to distance himself from the defendant. At one stage, after the defendant had grabbed a container of Kwaso from the victim, there was an exchange of punches, and the two had to be separated. Aftre this the defendant once again actively sought out the victim, despite having been warned by another to go home. When he located the victim this time, he once again requested a drink of Kwaso from him. Clearly exasperated, the victim threw his container of Kwaso at the defendant, hitting him in the face.

3. This sparked the final and sadly fatal confrontation between the two. They punched and wrestled, and the victim got the defendant in a headlock, making it hard for the defendant to breathe. The defendant retaliated by fatally stabbing the victim under the left arm with a knife, the knife puncturing his lung and causing his death shortly afterwards. After the stabbing, the defendant fled by jumping into the Mataniko River and swimming across to the other side, and thus back to the area where he lived. He was arrested and taken into custody the following day, 1 September 2007, and has remained in custody since.

4. I noted that in addition to the fatal stab wound, the victim was also stabbed in the back. This stab would was not fatal, but from the medical evidence it is clear that the wound was inflicted the same evening. While the defendant denies inflicting that second wound, it is an inescapable inference from the facts that he did so.

5. I also noted that while the defendant was armed with a knife at the time of the fatal altercation, he had borrowed it from another person just a short time before the incident, and for the purpose of fashioning an empty drink container into a cup in order to drink kwaso from it. However, I noted that immediately upon borrowing the knife the defendant had stabbed a wooden counter and scratched a wall with it, both of which actions were conducted in the presence of others and were intimidatory by nature.

6. The defendant is a single man aged 26 years. He lives with his mother and stepfather and siblings. He assists his mother with daily activities as she has suffered a leg amputation from diabetes.

7. By way of mitigation, the defendant has no previous convictions. I accept that he pleaded guilty to the charge of manslaughter at the first reasonable opportunity.

8. By way of aggravating features, the attack was carried out with a weapon on an unarmed person, and the victim was stabbed twice by the defendant. Although I accept that at the time of the fatal stabbing the defendant was attempting to extricate himself from a headlock which had been imposed on him by the victim, his course of conduct preceding the fatal incident was such that he only had himself to blame for his predicament.

9. I do not consider that the victim was in any way to blame for what occurred that evening. Despite seeking to distance himself from the defendant more than once, the defendant, in an angry and abusive state, continued to seek him out and badge him for drinks. While throwing a bottle at the defendant was not a sensible action, it was clearly a sign of complete exasperation by the victim with the antics of the defendant. I accept this would have enraged the defendant, but I consider he had only himself to blame and I completely reject any suggestion that the victim provoked the defendant into committing this crime.

10. I have considered the various authorities helpfully referred to me by all counsel. I agree from those authorities that the normal range for manslaughter involving a weapon is 4 to years. In my view this case falls towards the upper end of that scale.

11. I now sentence you, Benjamin Toito'ona, to 6 years imprisonment for the offence of manslaughter, and order that such sentence is deemed to have commenced from 1 September 2007, that being the date when you were taken into custody in respect of this matter.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge