Regina v Ludawane [2010] SBHC 106; HCSI-CRC 233 of 2008 (15 September 2010)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)
SITTING AT Honiara

REGINA

-V-

MOSTYN LUDAWANE

Hearing: 24 August 2010
Ruling: 15 September 2010

R. Barry and A. Aulanga for the Crown
D. Hou for the Defendant

Palmer CJ.

The issue for determination in this matter is whether the enactment of the Correctional Services Act 2007, in particular section 73(5)(a) and (b) as read with section 24(2) of the Penal Code have the effect of amending the provisions of section 200 of the Penal Code in so far as it applies to the mandatory sentence of life imprisonment for a conviction of murder.

Mr. Hou submits that the new Correctional Services Act has that effect. He relies on extensive developments in other jurisdictions especially in the United Kingdom, European Union countries and Australia which have gone so far to enact specific legislation catering for minimum terms to be fixed by the Court in sentences of life imprisonment. This has been a shift from the traditional approach of imposing a mandatory life sentence without more.

In his submissions Mr. Hou referred to the conclusions of the Committee on the Penalty for Homicide, chaired by Lord Lane in 1993, which noted some important conclusions about mandatory life imprisonment sentences. The Committee noted that there is a basic assumption that the imposition of a life sentence for murder is that it is a crime of such unique heinousness that an offender forfeits his right to be set free for the rest of his life. Such assumption however it noted is a fallacy. They noted that the common law definition of murder embraces a wide range of offences, some of which are truly heinous, some of which are not. It noted that it is logically and jurisprudentially wrong to require judges to sentence all categories of murderer in the same way, regardless of the particular circumstances of the case before them.

Mr. Barry on the other hand points out that the situation in England is very much different to what it is in Solomon Islands. He notes that the legislative framework in England is different. A sentencing judge is given specific power to set a tariff or a minimum term (section 34 Criminal Justice Act 1991) and a discretionary power to the Home Secretary to release a prisoner sentenced to life after consideration of the tariff, set by the judge and any recommendation by the Parole Board. He points out there is no similar or comparative legislative framework in Solomon Islands which requires a judge to do so.

The effect of section 73(5)(a) and (b) of the Correctional Services Act 2007.

The Correctional Services Act 2007 sets up for the first time the establishment of a Parole Board to assist the Minister in the exercise of his power to release a prisoner on licence. What appears to be a novel introduction by this legislation is the inclusion in any recommendations for the release of a prisoner on licence, persons serving a life sentence. This inclusion has been seized upon to enliven the argument that section 200 of the Penal Code should now be read as having been amended or qualified in the imposition of a mandatory life sentence. That when imposing a mandatory life sentence on a conviction of murder, the Court is obliged to specify a minimum term or a tariff.

I quote:

Section 73 (1):

"(1) The Minister may establish, by notice published in the Gazette a Parole Board."

Subsections 73 (5)(a) and (b) read:

"(5) The functions of the Parole Board are to make recommendations to the Minister relating to –

(a) the release on licence of any person serving a sentence, including a sentence for life, or to order the return to the correctional centre of any person who has been released on licence;

(b) the conditions to apply to any release on licence, including a variation or cancellation of any conditions; ....".

In England similar powers were given to the Home Secretary to release on licence a person serving a term of imprisonment for life (see section 27(1) of the Prison Act 1952 (15 & 16 GEO 6 & 1 ELIZ 2). He may release at anytime such prisoner subject to conditions he may determine from time to time. By specific legislation, such as the Murder (Abolition of Death Penalty) Act 1965, the Court was given responsibility to make recommendations to the Secretary of State a minimum period which in its considered view should lapse before the prisoner may be considered for release.

With the continuing influence and impact of the European Court of Human Rights and developing legislation and continued emphasis on separation of powers, the shift in the United Kingdom has led to the judiciary being required to fix the tariff or the minimum period in murder cases (see the Criminal Justice Act 2003 [CJA 2003] UK).

The situation in Solomon Islands is different in the absence of express legislative powers. That is not to say the court cannot express an opinion or recommendation. It may feel compelled to do so in appropriate cases and if it does so, will be merely discretionary.

The power to release a prisoner on licence vests in the Minister. As worded it is primarily an executive function, but before deciding whether to release a person serving a sentence of life imprisonment, he will ultimately, apart from other relevant factors, also have regard to the circumstances of the offence and the offender, the requirements of retribution and deterrence and what would be the minimum period to be spent in custody to satisfy the demands of justice. To that extent he will be exercising a quasi-judicial function. While there are contrary arguments that this is more appropriately the task of the court, in this instance it will be performed by the Minister as an executive function with advice obviously provided by the Parole Board and after consultation with the Chief Justice and Presiding Judge.

The court in any event my view would not be acting contrary to the requirements of section 200 of the Penal Code if it would in appropriate cases state what could be a minimum period or length of the tariff in a sentence of life imprisonment. It will however be a recommendation only and the Minister will not be bound by it.

It is important to note though that the Correctional Services Regulations 2008 requires the Minister to consult with the Chief Justice and the trial judge before making any decision to release a prisoner serving a life imprisonment. This provision or requirement is not new. It was also contained in the same words in Regulation 121 (1) of the Prisons Regulations 1973:

"The Minister may in his discretion at any time release a prisoner on licence, but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty's pleasure except after consultation with the Chief Justice together with the trial judge, if other than the Chief Justice, if available."

If the presiding Judge had not made any comment, suggestion or recommendation regarding the minimum period such prisoner should spend in custody, the consultation process to some extent could provide such opportunity.

In 2007, five life timers were considered for release by the Minister then and the process referred to above activated. Those who were being considered for release on licence by the Minister then had served time in prison for periods ranging from 11 years, 18 years, two for 19 years and the longest for 22 years. The circumstances of offending and the offender varied from an assault resulting in death to the case of a prisoner with associated psychiatric problems who had been allowed to do some grass cutting outside with a knife and attacking an innocent passerby. Sentences of life imprisonment had been imposed without any recommendation for any minimum period of sentence to be served. That task was left to the Minister as an executive function to perform and when he did elect to exercise that discretion, the law required him to consult the presiding judge and the Chief Justice.

Such power to release on licence in the case of a prisoner serving a life sentence was already in existence and confined essentially to an executive one. The only difference now is that the new Act created the establishment of a Parole Board to provide advice to the Minister regarding the exercise of his power to release on licence. What this means is that a Parole Board may have regard to any comments of a presiding Judge in a murder case to decide on what recommendations it may provide to the Minister. Whether a judge elects to do so or not will under the present circumstances remain discretionary and not obligatory as submitted by Mr. Hou.

A number of cases were relied on to suggest that the court is obliged to specify a minimum period. The cases of Kelly v. Regina[1] and Pese v. Regina[2] are distinguishable on their facts. They relate to the sentencing powers of the court for juveniles convicted of a grave crime, which includes murder. Section 13 of the Juvenile Offenders Act, 1972 expressly gives discretion to the court to impose a specified period of detention in the case of an offender below the age of 18 years. Section 73(5)(a) and (b) do not go so far to impart such discretion to a court.

The suggestion that section 10(1) of the Constitution should now be interpreted generously by the court in the light of section 73(5) of the Correctional Services Act 2007 is misleading. To suggest that the Minister is not an impartial and independent tribunal to play any major role in the determination of the minimum period or tariff that a murderer serving a life sentence must serve in custody to meet the requirements of retribution and general deterrence before he is eligible for consideration for release on licence in an appropriate case is not only presumptuous but without basis. While the Minister may be exercising in some ways a judicial function and contrary to the constitutional principle of the separation of powers between the executive and the judiciary, in the absence of express power, the exercise of that power remains in the Minister. The most that can be said at this point of time in relation to the effect of the new Act is that it enlivens a discretion on the part of the court in appropriate cases to make a recommendation or express an opinion; but that will be as much as it can be taken to, nothing more than a recommendation.

The same argument above also applies to the submissions in relation to section 24(2) of the Penal Code and section 5(1)(b) of the Constitution.

Decision

I do not find that section 73(5)(a) and (b) of the Correctional Services Act 2007 amends section 200 of the Penal Code and in turn requires the presiding judge in a conviction for murder to also fix a tariff or minimum period to be served in prison. Rather what it does is to enliven that discretion which by the way had been there all along under the old Regulations. By establishing a Parole Board, the Court is given the discretion to consider whether it may wish to make any comments regarding any minimum period of time that should be served because if it does so elect to do so those comments will be taken into account by the Parole Board. That is as far as that new provision in my view can be extended, beyond which it would be attempting to legislate, which is not the work of the judiciary.

Having said that, I will consider submissions (if any) which learned Counsel may wish to make regarding any minimum term which this court if it considers appropriate may wish to state for the record.

The Court.

---

^[1] [2006] SBCA 21; CA-CRAC 19 of 2006 (25^th October 2006)
^[2] [2008] SBCA 10; CA-CRAC 4 of 2008 (18 July 2008)