Regina v Bobby [2009] SBHC 52; HCSI-CRC 171 of 2009 (25 September 2009)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 171 of 2009

REGINA

V

ALLEN BOBBY

Date of Hearing: 23 September 2009
Date of Sentence: 25 September 2009

Counsel for the Crown: Mr R Iromea
Counsel for the Defendant: Ms Kylie Anderson/Mr Galo

Sentence

Naqiolevu J: The accused was charged and pleaded guilty to the offence of Manslaughter contrary of Section 199 (2) of the Penal Code.

Section 199 – Penal Code

(1) Any person who by an unlawful act or omission causes 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 the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

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

Facts

1. The facts of the case as outlined by the Crown reveal, on the 2nd of August 2008 the deceased was attending a wedding party at L & R area Highway, Burnscreek. The deceased had been drinking alcohol until the morning of the 3rd of August 2008, upon his returning home, met the accused, a Tony Sanga, and his associates. An argument broke out between the deceased and his associates over some issues.

In the course of the argument the accused and his associates attacked the deceased by kicking and punching him onto the ground. The accused then stabbed the deceased on the stomach with a small yellow handle knife and ran way. The other suspect, a John Kabola, (who is hiding from police) stabbed the deceased with a green handle chisel.

The deceased was badly wounded but managed to stand up and try to escape but fell to the ground unconscious because of his wounds. Witnesses saw his bleeding with two wounds on his stomach, when they assisted him to the hospital where he later died.

Post-mortem examination was conducted and the Autopsy Report reveal the cause of death was haemoperitoneum, (serious bleeding into the peritoneal cavity) caused by stab wound to the abdomen.

Mitigation

2. Counsel for the accused in mitigation submit the accused is 19 year old and was 18 when the incident occurred. The accused was born in Auki, Malaita Province; he is single and has no children and reside with his parents at Burnscreek. The eldest of 8 children whose father recently resigned from his position as a prison officer.

3. Counsel submits the accused family is very supportive and acknowledges the pain caused to the family of the deceased as reflected from the letter of the accused’s father. The family looked forward to the accused release from custody and return to their care, and he has a stable and supportive environment to return to.

4. Counsel asked the Court to consider the accused’s education history, his employment, his relative youth; The accused remorse and early plea of guilty, the circumstances of the offending, his time spent in custody and has no previous conviction. The process of reconciliation and the compensation payment of cash and shell money to the deceased’s father.

5. The Court has taken into consideration the nature of the offence and the seriousness of the offence. The use of a knife which resulted in the tragic loss of life, which cannot be replaced, is serious and must be treated as such.

Reason for Decision

6. The Court has carefully considered the Crown Submission and the authority cited in support of an appropriate sentence.

The Court has fully considered the defence counsel’s submission and the comparable sentence imposed for the type of offence. The Court is mindful of the authority of Magu v R where the Court of Appeal stated:

... "in considering the question of the appropriate sentence for a convicted person, the Court should have in mind that, notwithstanding the fact that a disproportionately low sentence in one case is not ground for reducing an otherwise correct sentence in another case, a sentence should not be heavy and out of proportion with a majority of sentences in comparable case...".

7. It is clear that the sentence imposed for this type of offence involve grades of seriousness and the average sentence imposed in this jurisdiction range from 3 years to 7 years, (refer to Palmer, CJ), given the aggravating features in the circumstance. The Court consider the decision in the case of Rongodola –v- Regina is important and will adopt the principle of law enunciated in the circumstances.

"It can be said that there are many grades of seriousness when it comes to the offence of manslaughter. In determining the appropriate penalty, many factors have to be taken into account. Without suggesting that these are the only considerations, ordinarily a Court would have regard to the age of the offender, previous criminal history of the offender particularly whether there are previous convictions involving violence, provocation, intoxication, type of weapon if any used, persistence of the attack, vulnerability of the victim, and the relationship between the parties." Underline mine.

8. The Court in considering the age of the offender who was 18 years at the time of the commission of the offence and now 19 years old. The Court must consider him as a youthful offender who must be treated as such. The Court in this regard adopts the principle of law in the case of Bati –v-DPP when the Court referred to the Principles of Sentencing. D.A. Thomas in dealing with the age and history of the offender where the following passages appears.

"Youth is one of the most effective mitigating factors. As has been shown, the Court strongly favours the use of individualized measures for offenders under 21.... Where an offender of this group is sentenced to imprisonment, the sentence will normally be considerably shorter than would be awarded to a man of mature years for the same offence".

Later in the same paragraph, however, the learned author, continues,.....

"Reconciliation of the mitigating effect of youth does not mean that long sentences are necessarily wrong when imposed on offenders below the age of 21 years..."

In our view the quoted passage correctly sets out the principles to be applied in considering the age of an offender as a mitigating factor. Underline mine.

In R –v- Mills, BATT JA, accepted the following submissions as correct.

"(1). Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

(2). In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualized treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender).

(3). A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified."

Conclusion

9. The Court has taken into consideration the accused is a first offender and as outlined by counsel, he has no history of being violent and as his father stated, he never had any fight with anyone before, never argued with anybody or had any problems with law enforcement. He further, has never been arrested or convicted before and so the trouble he was involved in is a one-off-incident.

10. It is clear to the Court the accused is a person of examplanary disposition as confirmed by the Prison Authority and that of his Pastor in his Letter of Support and indeed, his father. This should clearly go in his favour.

11. The Court has further taken into consideration the accused’s admission of the offence from the moment he was arrested, and during the conduct of the interview, to the Plea of Guilty in Court. This had clearly avoided both manpower and resources and the need to call witnesses to testify in what could be a protracted case, given the number of witnesses involved.

12. The Court considers the act of reconciliation undertaken. between his family and the family of the deceased is important. The settlement of compensation through cash and shell money has further assisted in what could result in an on-going conflict between the families and indeed the community.

13. The Court having taken these factors into consideration given the nature of the offence, and the seriousness of the offence, the use of a knife, and the resultant loss of life which cannot be replaced.

14. The Court considered that the starting point for the offence should be four years, given the aggravating features. However, in contrast in terms of the level of seriousness, this case must fall below those cases referred to by the Crown. The accused in this instant as stated in his record of interview had wrestled the knife from his attacker and was holding the knife when further attacked when he responded and stabbed the victim once.

15. The Court having weighed the aggravating feature against mitigating circumstances. The accused youth, his plea of guilty, at the first instance. The accused’s family in promoting reconciliation and his excellent prospect of rehabilitation with assistance of the prison authority, his Pastor and his family. The Court is satisfied that he has a bright future and prospect to become a useful member of society, is indeed promising.

The Court in all circumstances find the accused guilty of the offence of Manslaughter and sentence him to 3 years imprisonment. The term of imprisonment is to commence from the date originally arrested and kept in custody from the 3rd of August 2008.

THE COURT