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Regina v Lusibaea [2010] SBHC 80; HCSI-CRC 291 of 2007 (30 November 2010)

HIGH COURT OF THE SOLOMON ISLANDS


Criminal Jurisdiction
Criminal Case No. 291 of 2007


REGINA


–v-


JIMMY LUSIBAEA
& PATTESON SAENI


Date of Hearing on Sentencing: 24 November 2010
Date of Sentencing: 30 November 2010


Mr. M Coates and Mr A Aulanga for the Crown
Mr R Cavanagh and Mr S Aupai for 1st Defendant
Ms M Waqavonovono for 2nd Defendant


SENTENCING DECISION


Cameron PJ:


  1. Jimmy Lusibaea and Patteson Saeni appear for sentence in respect of offences committed on 1 September 2000. Jimmy Lusibaea has pleaded guilty to a charge of unlawful wounding and another charge of assault on a Police Officer in the execution of his duty. Patteson Saeni has pleaded guilty to a charge of unlawfully causing grievous bodily harm.
  2. At that time, namely 1 September 2000, there was open armed conflict in Solomon Islands between various militia groups, bringing with it a significant breakdown of law and order. That state of affairs, which continued until RAMSI intervened in mid-2003, is now referred to as the ethnic tensions. One such militia group was the Malaita Eagle Force, known as MEF, of which according to the evidence Jimmy Lusibaea was the commander.
  3. Late on the night of 31 August 2000 or in the early hours of the morning of 1 September 2000, there was a shooting at the Heron Nightclub in Honiara resulting in some of the members of the Malaita Eagle Force being injured. Other members of MEF ran after the person suspected of doing the shooting, a Robert Solo, and he was caught and severely beaten by them. The three MEF members who had been shot were taken to the National Referral Hospital in Honiara and were placed in the casualty room by the Police Officer on duty that night, Police Constable Sam Manekeha.
  4. Within minutes after that Robert Solo, who had received the beating, was brought to the same hospital and placed in the x-ray room, a separate area from where the MEF members had been put. Robert Solo was bleeding and bruised and was unconscious at the time. At around 3 am that same night a large group of men arrived at the hospital. They were led by Jimmy Lusibaea and included MEF members. The other defendant Patteson Saeni was part of that group and was himself a Police Officer at that time. Some were carrying pistols, others were carrying rifles. Jimmy Lusibaea carried a nine millimetre calibre pistol, but Patteson Saeni was not seen carrying anything when he arrived.
  5. Jimmy Lusibaea and Patteson Saeni asked Police Constable Sam Manekeha the whereabouts of the three MEF members who had been admitted. The group was then shown into the casualty room where the men had been placed. After visiting those MEF members Jimmy Lusibaea asked Sam Manekeha the whereabouts of the man who had shot the three MEF men. Sam Manekeha was scared at the time and so he showed the group the man's location in the x-ray room. Robert Solo was still unconscious at that time and he was recognised by them because of a tattoo on his hand. Jimmy Lusibaea then took his pistol and shot Robert Solo in each of his knees, holding his pistol about 30 centimetres away from the knee on each occasion. Robert Solo remained unconscious during the shooting.
  6. All this was witnessed by Sam Manekeha, who then tried to escape. However, he was stopped by the group and asked where the second man who did the shooting was located. There was in fact no second man, but clearly the MEF group thought that there was. When Sam Manekeha answered that there was no other person, Jimmy Lusibaea hit him on the head with the butt of his pistol, resulting in a wound and blood running down his face.
  7. Some of the MEF members then held Sam Manekeha while Patteson Saeni beat him as they moved through the hospital. Patteson Saeni then pulled out a police issue bayonet and said that if he did not name the second man he would kill him. Patteson Saeni then swung the bayonet but Sam Manekeha ducked and it missed. However, Patteson Saeni then swung the bayonet back and it struck Sam Manekeha on the chest and neck, resulting in the serious injuries. It is common ground that the injured MEF men at the hospital were wantoks of Patteson Saeni and that this had fuelled his anger.
  8. Dealing with the injuries suffered by Robert Solo, I was advised that there were no records available from the hospital in respect of his admission on1 September 2000. However, there was a report dated 27 September 2006 from a Doctor at the National Referral Hospital which describes the wound to the right knee as a through and through wound with a 1 centimetre entry, which I assume is a reference to the width or diameter of the wound, and a 2 centimetre exit. Thus, the bullet passed through the flesh of the right knee and exited. The left knee was described as having a 1 centimetre wound over the lateral aspect of that knee. Those injuries, together with some bruising and bleeding to his left cheek consistent with blunt trauma, were described by the Doctor as not life-threatening but potentially serious and the cause of great pain, discomfort and disability. However, there is no real permanent disability that can be identified, although he suffers pain in his knees after soccer or after walking long distances. The bullet to his left knee was removed in 2003, and it was a nine millimetre calibre bullet.
  9. Dealing with the injuries to Police Constable Sam Manekeha, in a report dated 9 October 2000 Doctor Vavala from the National Referral Hospital described his condition when admitted on 1 September 2000 as quite serious. The report states that he sustained lacerations to his face, head and neck. The whole face was grossly swollen and he could not open his eyes. Both lips were lacerated and swollen. X-rays disclosed extensive tissue damage. His wounds were stitched. Police Inspector David Diosi came to the hospital that morning after hearing about the incident. He had known Officer Manekeha for over 10 years but could not recognise him because he was so badly beaten. Over a month later, he still had blurred vision and impaired memory. He had to eat and drink through a straw for one month. Fortunately there were no injuries of a permanent nature and Officer Manekeha remains a Police Officer with the Royal Solomon Islands Police Force to this day.
  10. Jimmy Lusibaea, after the commencement of the trial but still on the opening day of 16 November 2010, pleaded guilty to one charge of unlawful wounding in relation to Robert Solo (Section 229 of the Penal Code) and one charge of assaulting of a Police Officer in the execution of his duty (Section 247(b) of the Penal Code). As a result of those pleas the trial was adjourned, and then on 22 November 2010 Patteson Saeni pleaded guilty to one charge of unlawfully causing grievous harm to Sam Manekeha (Section 226 of the Penal Code). The Crown did not pursue the other charges.
  11. At the commencement of the trial both defendants faced a more serious charge than those to which they ultimately pleaded guilty. Jimmy Lusibaea faced a charge of unlawful wounding with the intent to do grievous bodily harm in relation to Robert Solo, a charge which carries a maximum sentence of life imprisonment (Section 224 (a) of the Penal Code). Patteson Saeni faced the same charge but in relation to Officer Manekeha. By contrast, the charge of unlawful wounding to which Jimmy Lusibaea has pleaded guilty carries a maximum sentence of 5 years in prison. The charge of assaulting a Police Officer in the execution of his duty, the second offence to which Jimmy Lusibaea has pleaded guilty, carries a maximum term of imprisonment of 2 years. The charge to which Patteson Saeni has pleaded guilty carries a maximum sentence of 14 years imprisonment.
  12. The essential element of the charge of unlawful wounding is just that, namely that Jimmy Lusibaea by an unlawful act did wound Robert Solo. In this case the unlawful act is shooting Robert Solo in the knees at close range. Aggravating features of that offending are:
    1. The fact that a weapon was used to cause the injuries.
    2. The shooting took place inside the National Hospital, which ought to be respected for its humanitarian role of caring for the sick and wounded. Ironically, it appears that Jimmy Lusibaea was quite content for his injured boys to receive the benefits which the hospital offered.
    1. That the victim Robert Solo was in a helpless state, being unconscious at the time.
    1. The victim Robert Solo was already and obviously badly injured as a result of his beating before he was shot.
    2. Jimmy Lusibaea callously chose to shoot him in that part of his body, namely the knees, that had the most potential to cripple him.
    3. Jimmy Lusibaea's actions at the hospital, including entering it holding a pistol, and after inspecting his boys demanding to know where the victim was located and then shooting him, point to this being an act of planned retribution.
    4. The fact that Jimmy Lusibaea arrived at the hospital with a large group of his boys, some of whom were carrying pistols and rifles. This was clearly designed to intimidate those in authority who might otherwise have had the courage to stand in his way.
    5. Jimmy Lusibaea was clearly the ring leader of this lawless group.
  13. The aggravating features of the charge of assaulting a police officer in the execution of his duty are:
  14. Dealing now with Patteson Saeni's offence of unlawfully causing grievous bodily harm, the main aggravating features of this offending are:
  15. I now consider the mitigating factors in favour of Jimmy Lusibaea. The strongest mitigating factor is his achievements since release from prison on bail on 22 October 2007. Since then he has established a business known as Lion Heart Plant Hire, which employs approximately one hundred people. The business includes maintaining roads in Guadalcanal and Malaita, brick making, plant hire and security.
  16. He has been active in the church community and some sporting organisations. He represents North Malaita as its Member of Parliament and has done so since his successful election in August 2010. He has been appointed the Minister of Fisheries and Marine Resources in the current government.
  17. Some 19 references were handed to me, which show that Jimmy Lusibaea has done exceptionally well in a very short time in each of these areas. I accept that he has worked diligently and effectively for his constituents in North Malaita and within church communities and sporting organisations. I also accept that as a Minister he has served his country well and achieved considerable gains for Solomon Islands in that portfolio. It is obvious that he has reformed himself and has much to offer. He will be given substantial credit for that.
  18. Also relevant to this consideration is the hardship which he will endure if he is imprisoned for a substantial period. He will forfeit his parliamentary seat if the sentence is six month's imprisonment or more (Section 51 of the Constitution). He will be removed from his Ministerial position. There will be hardship to his family. He has a wife and twelve children, nine of whom are adopted and all are living with their parents and attending school. His business is likely to suffer and he will be unable to continue his good work in his constituency and in other areas including the church and the sporting arena.
  19. The delay since these offences were committed is relevant, in so far as it exacerbates the hardship which would be suffered by Jimmy Lusibaea should he be imprisoned. These offences occurred on 1 September 2000, a little over ten years ago. Jimmy Lusibaea was not arrested on these matters until 14 February 2007. Then on 15 May 2007 the Central Magistrates Court committed him for trial. There was then some delay in having the matter listed for trial in the High Court, partly because there were other matters for which Jimmy Lusibaea was being tried.
  20. The delay of some six and a half years from the date of offending up to his arrest on 14 February 2007 on these matters can partly be attributed to the fact that a state of lawlessness existed in this country from about 2000 up to when the RAMSI Force intervened in mid-2003. After that there was a multiplicity of matters to be investigated arising from the ethnic tensions, with finite resources to do so. Indeed, a number of matters arising from that time are still under investigation. That is simply a consequence of the country having in effect been in a state of civil war, a consequence which has to be accepted by those who chose to be active participants in that armed conflict. Notwithstanding that fact, there can be no doubt that the consequence of that delay is to increase the hardship which Jimmy Lusibaea would now suffer if imprisoned for a substantial period, for the simple reason that an earlier arrest may have resulted in these matters being over and done with by now. This is, in the particular circumstances of this case, a strong mitigating factor in Jimmy Lusibaea's favour.
  21. I now consider whether Jimmy Lusibaea can be given any credit for being a person of previous good character prior to this offending on 1 September 2000. His criminal record and the information I have received discloses that on 15 June 2000, about two and a half months prior to the offending in this case, he was involved in a robbery for which he was subsequently convicted in the High Court and sentenced to five years imprisonment. Thus Jimmy Lusibaea was not previously a person of good character and can receive no credit under this head.
  22. I also note from his criminal record that on 26 November 2000 he committed the offence of grievous bodily harm, for which he was subsequently convicted and sentenced in the High Court to three years imprisonment. In advancing submissions as to the good character of Jimmy Lusibaea, the defence relied in part on references which contended that Jimmy Lusibaea played a significant role in bringing peace to Solomon Islands following the tensions and in particular by being actively involved in having the Townsville Peace Agreement signed. This agreement paved the way to the ultimate peace which was secured for Solomon Islands.
  23. I note, though, that the Townsville Peace Agreement came into effect on 15 October 2000 and that it was only a month and a half prior to that, on 1 September 2000, that the offending in this case occurred. Then on 26 November 2000, a little over a month after the Townville Peace Agreement came into effect, Jimmy Lusibaea committed an act of grievous bodily harm for which he was given a sentence of three year's imprisonment. Assertions of his active role in the peace process at that time have to be considered against his continual offending during that period and therefore carry little weight.
  24. I next consider whether Jimmy Lusibaea can be given any credit because these matters have already been settled in custom. Settlements in custom are a relevant mitigating factor where they demonstrate genuine remorse on the part of the perpetrators of the criminal conduct. As to Robert Solo, who was shot in both knees, it is common ground that a custom settlement took place three days after the shooting incident, which involved Robert Solo being paid some money and receiving some shell money. A ceremony then took place at Jimmy Lusibaea's residence in August 2010 after Jimmy Lusibaea was elected as a Member of Parliament and at about the same time that these matters were listed in this Court for hearing. That ceremony in August 2010 was apparently arranged through the Ministry of National Unity, Reconciliation and Peace.
  25. As to Sam Manekeha, the police officer, some money and shell money was paid to him by Jimmy Lusibaea on behalf of himself and Patteson Saeni on 13 or 14 September 2010. Notwithstanding these custom settlements, at the commencement of this trial Jimmy Lusibaea pleaded Not Guilty both to the charge of unlawful wounding and to the charge of assaulting a police officer in the execution of his duty. This is hardly consistent with him being remorseful about his conduct. As a result of that Not Guilty plea, both Robert Solo and Sam Manekeha were called to give evidence. Robert Solo clearly did not want to do so and indeed refused to answer questions and then was held in contempt of court and taken into police custody. Sam Manekeha also did not want to give evidence as he wrote to the Director of Public Prosecutions about a month before the trial stating that he did not want it to proceed.
  26. However, being a professional officer with a clear sense of duty, he nevertheless gave evidence in a clear and concise way. He is to be commended for that. The real point, though, is that Jimmy Lusibaea, who was portrayed by the defence as being remorseful for his conduct, was prepared to have those two witnesses endure the ordeal of Court and it was only after Sam Manekeha gave the clearest evidence identifying Jimmy Lusibaea as the person who shot Robert Solo that he changed his plea to guilty.
  27. Going back to the settlement with Robert Solo three days after he was shot in the knees, I must say that I find it rather incongruous that a man who was the commander of a militia force and who, bent on retribution, shoots an opponent in both knees on one day, can three days later be said to be remorseful and contrite, especially when the following month he commits another offence of grievous bodily harm against another victim. It is possible that Jimmy Lusibaea was remorseful, but I am not prepared so to conclude based simply on the fact that the victim was paid some money and shell money. Efforts by the Crown to extract information about the settlement from Robert Solo when he was in the witness box were met by a defiant silence and refusal to answer questions, so nothing was gleaned from him as to the nature of that reconciliation.
  28. The other point about the reconciliation with Sam Manekeha in September 2010 is that this was after this trial had been listed for hearing in mid-November 2010. It is inconsistent with genuine remorse that Jimmy Lusibaea left it until ten years after the incident to reconcile with Sam Manekeha and then only when he knew the trial against him would proceed. A further point is that it was a condition of Jimmy Lusibaea's bail re-granted to him by this Court on 3 December 2008 that he was "not to communicate with witnesses listed on the information". Sam Manekeha was of course listed on the relevant information of 17 July 2007 as a Crown witness. So if as it appears Jimmy Lusibaea was present and participated in that reconciliation then he was in breach of his bail conditions by so doing. This is not just a technical breach but a serious one involving an accused approaching a pivotal Crown witness weeks before trial and passing him money. The same can be said of the reconciliation ceremony that Jimmy Lusibaea attended with Robert Solo after Jimmy Lusibaea's election as a Member of Parliament in August 2010. This trial had been listed for hearing at about that time and that contact was also in breach of Jimmy Lusibaea's bail conditions.
  29. I am not satisfied in the circumstances that the settlements point to genuine remorse on the part of Jimmy Lusibaea, and he will receive no reduction in his sentence for them.
  30. The next matter is whether Jimmy Lusibaea should receive a credit for his guilty pleas to the two charges. The first point I make is that the guilty pleas only came after the trial had started and after Sam Manekeha had given the clearest evidence inculpating Jimmy Lusibaea in the offending against Robert Solo. It is true, though, that without the guilty plea several additional court hearing days would have been required to hear further evidence so some credit, though minimal, will be given for this.
  31. Next I consider the contention that if Jimmy Lusibaea is to be imprisoned then he has already spent time in custody referable to these offences, and so that ought to be taken into account in the sentencing. This relates to the fact that Jimmy Lusibaea's 5 years sentence for robbery handed down on 28 July 2004, and which failed to take account of time already spent in custody on that charge, was subsequently backdated by the Court of Appeal. The Court of Appeal ordered that the sentence be treated as having commenced on 16 October 2003, when he was first taken into custody, and not 28 July 2004, when he was in fact sentenced by the High Court. The effect of this backdating was that a release date from prison on parole of 15 February 2007 would have applied had the sentence been backdated from the outset. As the Court of Appeal decision was not given, though, until 16 October 2007, it meant that Jimmy Lusibaea spent approximately 8 months longer in prison on the robbery offence than he ought to have had. During those same 8 months Jimmy Lusibaea was also in custody on the charges relating to this case, having been arrested and placed in custody on them on 14 February 2007, and then bailed on them on 22 October 2007 following the Court of Appeal decision. It is argued for the defence that because the Court of Appeal in effect found that he ought not to have been in prison on the robbery offence beyond 15 February 2007, then he was only rightly imprisoned beyond that date because of the charges relating to this case, and that should now be taken into account.
  32. The Crown's answer, namely that during those 8 months he was still serving a sentence for robbery and that to treat that time as time spent in custody on these matters would be to give the defendant a double credit, is illogical. The effect of the Court of Appeal's decision is that he ought not to have been in prison on the robbery offence beyond 15 February 2007. I have not overlooked the fact that as well as being in custody after 15 February 2007 on these matters, he was also being held in custody on two other unrelated matters. However, he was subsequently acquitted in respect of those two other matters and so he received no credit for the time he spent in custody on them. A full credit is now appropriate. Any backdating of sentence would be for the equivalent of the 8 months 7 days period, 15 February 2007 to 22 October 2007, already spent in custody on these matters. The backdating will not be for 12 months (to take account of the early release provisions relating to parole) because the defendant was not a sentenced prisoner at that time in respect of these offences, but was merely on remand.
  33. The defence placed much emphasis on the fact that the tensions were an exceptional time in the history of this country, and that this should be taken into account in the sentence. The relevance of this is not that it reduces the culpability of the perpetrators of violence during that period but that as those conditions no longer apply and Solomon Islands is now a peaceful country then those previously involved in the violence are less likely to reoffend. I accept in the case of Jimmy Lusibaea that he has demonstrated that he is not likely to reoffend.
  34. As to the submission that the victims did not wish the case to proceed against Jimmy Lusibaea and that is a mitigating factor, this is really the same argument as that advanced in relation to the reconciliations and my previous comments apply. I add that in the case of the victim Robert Solo, it is rather incongruous that the defence invite the Court to be influenced by his wishes when his actions as a witness in refusing to answer questions because of a settlement in custom amounted to a challenge to the jurisdiction of this Court to hear the case.
  35. The defence also submitted that the community does not demand a custodial sentence. For this submission to have any credence at all it has to be based on the references which were handed to the Court. A few of the references were critical of and disrespectful to the legal system in this country. I put such gratuitous comments to one side. Some tried to tell the Court how to deal with Jimmy Lusibaea. I also put those gratuitous suggestions to one side. Still others argued that the matters had already been settled in custom and that that should be the end of the matter. There were 19 references in all, and by my reckoning some 15 of those were from Malaitan members of the community, and of those 15, 9 were from North Malaitans. Of the remaining 4, 2 were from public servants working in the Prime Minister's Office, and the remaining 2 were from the Prime Minister himself, the Honourable Danny Philip, and from the Speaker of the National Parliament, Sir Allan Kemakeza. It is clear to me from the references that Jimmy Lusibaea has substantial support first from the majority of his North Malaitan constituency and secondly from the Government of which he is not only a member but a Minister of the Crown. He also clearly has substantial support from various church groups and sporting organisations. However, the references are not representative of the community as a whole but rather are the views of those who appended their names to them and to the petition which accompanied one of them.
  36. I wish to be very clear that those commit serious violence can expect a substantial custodial sentence whether their supporters like it or not and whether there has been a custom settlement or not. Custom settlements will be a mitigating factor if done appropriately and genuine remorse and contrition can be demonstrated but they will not under any circumstances supplant the jurisdiction of the Courts to deal with criminal offending or diminish in any way the laws against criminal offending which apply in Solomon Islands. The public of Solomon Islands is entitled to the protection and security which is afforded by the enforcement of those laws by the police.
  37. As earlier stated Jimmy Lusibaea will lose his parliamentary seat if imprisoned for six months or more. That will be a substantial hardship to him and will also occasion the necessity for a by-election in North Malaita, with the attendant expense to the country. I take this into account, but the hardship it will cause and the various other mitigating factors do not justify a sentence of less than six months imprisonment. The offending is too serious for that. While Jimmy Lusibaea is not likely to reoffend himself, there is a real need to deter any like-minded people from committing serious acts of violence, including assaulting police officers in the execution of their duty. There is also a need to hold Jimmy Lusibaea accountable for his actions.
  38. Having regard to the aggravating features of the unlawful wounding offence, this offence falls towards the upper end of the five year scale for this type of offence, and I adopt a starting point of 4 years imprisonment. From that there must be a deduction for the mitigating factors. As I have stated, Jimmy Lusibaea has turned himself around and has much to offer in the future. The impact of the delay in having these charges dealt with is all the more significant for him as a result. I consider a 50 per cent reduction in the tariff to be appropriate, which will reduce the sentence for this offence to 2 years imprisonment.
  39. As for the offence of the assault on a police officer in the execution of his duty, I consider an appropriate starting point after taking into account aggravating features to be 18 months imprisonment. I consider a 50 percent reduction to be appropriate for the mitigating factors, for the same reasons, which would reduce that sentence to 9 months imprisonment.
  40. I consider that the sentences should be served consecutively, namely one after the other, and not concurrently, that is at the same time. While they occurred within a narrow time frame, they were entirely separate offences against different victims and for different motives. One does not follow from the other, unlike for example when a thief breaks into a car, an offence in itself, so as to steal it, thereby committing another offence. That is illustrative of a single continuing incident, when the sentences for the two offences should be served at the same time and not be cumulative. The fact that Jimmy Lusibaea was capable of committing two separate serious crimes of violence one after the other is simply illustrative of his state of mind at that time, and does not mean that the punishment for each should not be marked separately.
  41. I have considered the totality principle and do not consider a total sentence of 2 years 9 imprisonment to be excessive for the types of offending involved.
  42. As stated earlier, Jimmy Lusibaea spent 8 months and 7 days on remand in custody effectively for these matters. In addition, he has spent a further 14 days in custody since 16 November 2010. That is a total of 8 months and 21 days in custody. I will order that his overall sentence is deemed to have commenced on 11 March 2010 to give him full credit for this time already spent in custody.
  43. Jimmy Lusibaea, on the charge of unlawful wounding you are convicted and sentenced to a term of imprisonment of 2 years. On the charge of assaulting a police officer in the execution of his duty, you are convicted and sentenced to a term of imprisonment of 9 months, to be served consecutively to the sentence of 2 years. Therefore the overall term of imprisonment is 2 years and 9 months. I also order that the 2 years 9 months sentence is deemed to have commenced on 11 March 2010, having regard to the amount of time you have already spent in custody referable to these matters.
  44. I return to Patteson Saeni. I now consider any mitigating factors in favour of Patteson Saeni. As earlier stated he was a police officer at the time of the offending, a significant aggravating feature. He joined the Royal Solomon Islands Police Force in 1993 and was posted at that time to Shortland Islands where he served on a patrol boat in the border crisis between Papua New Guinea and Solomon Islands over Bougainville. From 1996 until the ceasefire in 1997 he served in a Field Force. During both of these assignments he was armed and, it is said, was constantly under fire from the Papua New Guinean Army. He returned to Honiara shortly before the height of the tensions in 2000. He has to be given credit for his service to the Royal Solomon Island Police Force prior to the tensions.
  45. He joined the Joint Operation Forces that comprised some civilians and some members of the RSIP in 2000, and is said to have continued as a police officer with the Joint Operation Forces until his arrest in October 2003. The defence submits that he is entitled to credit for "participating in the keeping of law and order in Honiara" during this period.
  46. The difficulty with this submission is that whilst supposedly keeping law and order on 1 September 2000 he committed the assault on a police officer the subject of this case, and on 26 November 2000 he committed grievous bodily harm for which he received a 3 year prison term. Also on 26 November 2000 he committed murder for which he received life imprisonment, and on 31 January 2001 committed manslaughter and in addition two assaults of causing actual bodily harm, for which he received a total of three and a half years' imprisonment. His work in the Joint Operation Forces after 31 January 2001 and before his arrest in October 2003 has to be seen against the background of his appalling offending prior to that time. No credit will be given to him for his activities from 2000 to his arrest in October 2003. To the contrary they illustrate that he was then a person of bad character.
  47. It was urged on me that "he was caught up in the tension crisis", and that "there were others who are answerable for what has happened". The plain fact of the matter is that those who committed serious violence during the tensions cannot use the fact that it was the tension period as an excuse for their offending. The tensions existed for the very reason that people like Jimmy Lusibaea and Patteson Saeni took the law into their own hands and were prepared to commit serious violence to others.
  48. Only limited weight will be given to Patteson Saeni's guilty plea, particularly as it came after Officer Sam Manekeha had demonstrated to the Court and to the defendants themselves, that he had a clear recollection of the events of that night. Although he had not reached the point in his evidence at which the assault on him by Patteson Saeni had occurred, he had already given evidence that he recognised Patteson Saeni and it must have been clear to Patteson Saeni that his fate was then sealed.
  49. The defence stated that the reconciliation with Sam Manekeha in September 2010 was attended to by Jimmy Lusibaea both on his own behalf and on behalf of Patteson Saeni, who was in prison at that time. For reasons already given no credit will be given for this reconciliation.
  50. It is said that Patteson Saeni has now become a committed Christian, that he has attended a number of educational courses in prison, and that he is also a trainer for other inmates in the beginners stage of their computer studies. He appears to be a good influence on his fellow inmates and is credited with dissuading inmates in his block from joining a riot. He is to be commended for those achievements, and based on the material I have I accept that he appears to have reformed himself. He is a man of only 36 years, and should he receive a pardon at some future point in respect of his imprisonment for life, he has the potential to benefit the community.
  51. All this I take into account in mitigation, including the references that were handed in. I also give some very limited weight to the delay of 10 years in this case, in so far as the matter has been hanging over the defendant's head for a very long period. However, the impact on him of that must have been limited, because he is now only five years into serving a life sentence of imprisonment. The defence relied amongst other things on the case of the R v. Sitana (2009) SBHC 57, where I sentenced a man to two years imprisonment for slashing a person on the face and neck with a bush knife, resulting in the victim being hospitalised for two months. The circumstances of that offending were quite different to those in the present case. There the victim had cast aspersions on the moral character of the defendant's daughter to which the defendant had over- reacted and lashed out with the bush knife. He was 63 years old at the time of the offending but about 70 years old when sentenced by this Court. In this case there was a sustained and brutal beating of a police officer on duty at the hospital and who was protecting the security of the patients, and there was an attack with a bayonet in circumstances where the victim was hopelessly outnumbered by an armed militia group.
  52. Patteson Saeni, you are convicted of unlawfully causing grievous harm to Sam Manekeha on 1 September 2000 and I sentence you to a term of imprisonment of 3 years 6 months commencing from today.

BY THE COURT


Justice IDR Cameron
Puisine Judge

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