Regina v Manioru [2011] SBHC 124; HCSI-CRC 309 of 2009 (19 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

THOMAS EREGA MANIORU

Date of Hearing: 12th October 2011
Date of Judgment: 19th October 2011

Ms. M Kausimae and Ms. F. Joel for the Crown.
Mr. Barlow and Mr. S. Aupai for the prisoner.

RULING

Apaniai, PJ:

Introduction

1. The applicant, Thomas Erega Manioru, was sentenced to life imprisonment on 16th September 2011 upon being convicted of the murder of David Maesuri ("deceased") at the Central Market in Honiara on 15th May 2009.
   
2. He now applies to the court for a recommendation as to the minimum period he should spend in prison before he could be considered for parole.
   

Parole

3. This application is made in the light of section 73(5) of the Correctional Services Act 2007 ("Act"). Subsection (1) of section 73 of the Act establishes a parole board ("Board") while subsection (5) prescribes the functions of the Board.
   
4. One of those functions is to make recommendations to the Minister in relation to the release on license of prisoners serving sentences for criminal offences, including life sentences.
   
5. When conducting inquiries for the purposes of making recommendations to the Minister, the Board is required under regulation 208(b) to consider the nature and circumstances of the offence and "any sentencing remarks made by the trial judge".
   
6. Under regulation 205 of the Regulations, the Minister can only release a prisoner serving a life sentence after consultations with the Chief Justice and the trial judge or, where the trial judge is not available, with the Chief Justice alone.
   

Rationale for the application

7. The requirements of the regulation 208(b) for the Board to consider "any sentencing remarks by the trial judge" is applicable only in cases other than murder and can only be satisfactorily fulfilled if such remarks are made as soon as possible after, or simultaneously with, the sentencing of the prisoner. The remarks would then be on record for future reference if parole is sought in later years.
   
8. I say that regulation 208(b) is applicable only in cases other than murder because pleas in mitigation are rarely made in murder cases and therefore very seldom would one find any remarks by a trial judge when sentencing those found guilty of murder. This is because, once found guilty of murder, life imprisonment is automatic and the court has no discretion as far as the sentence is concerned. There are public perceptions that this state of affairs is unsatisfactory and unfair since not every case of murder is of the same heinousness.
   
9. However, the passing of the Act appears to provide some hope for these life-timers that, despite the life sentence passed on them, they can still be released early under the parole system provided for under the Act.
   

Previous similar application

10. The case of R v Ludawane[1] ("Ludawane") appears to be the first case in which an application similar to the present one has been made to this court seeking recommendations from the trial judge in relation to the minimum period that the accused should spend in prison before he could be released on parole under the Act. The Act imposes no obligation on the trial judge to make any such recommendation, but the requirement in regulation 208(b) for the Board to have regard to "any sentencing remarks by the trial judge" is sufficient authority for the trial judge to do so. Needless to say, any period recommended by the court is not binding on the Minister.
    
11. In Ludawane, the court has referred to the decision of the English Court of Appeal in R v Sullivan (Melvin Terrence)[2] ("Sullivan") where the Court of Appeal had discussed the issue of mandatory sentence of life imprisonment. In that case, the Court of Appeal said that a mandatory life sentence would involve 2 periods, one is the minimum term which represents the period to be spent in custody as punishment and deterrence and the other is the period during which the offender could, but may not, be released on license by the Parole Board if it considers that public safety would not be compromised by the release of the prisoner.
    
12. The seriousness of murder cases has also been discussed in that case. The Court of Appeal has described murder cases as falling into three categories, which I would call, exceptionally serious cases, highly serious cases and less serious cases. The Court of Appeal has noted that for the exceptionally serious cases, life imprisonment would be appropriate. For the highly serious cases, a starting point of 30 years would be reasonable for the purposes of parole and, for the less serious cases, an appropriate range would be 14 to 15 years or even lower where the killing was a spur-of-the-moment incident or was not premeditated or has resulted from loss of temper or from a quarrel.
    
13. In my view, exceptionally serious cases would be cases where the offender has committed more than one murder, as for instance serial killers, as well as the case of sadistic killers. Furthermore, highly serious cases would be cases where the murder had involved a considerable amount of planning or premeditation or where the wounds inflicted on the victim were gruesome and demonstrated a considerable amount of hatred towards the victim. The less serious cases include mercy killings or those where the murder was a spur-of-the-moment incident or where the murder did not involve any pre-planning or pre-meditation on the part of the offender.
    
14. Whether to classify a case as exceptionally serious or highly serious or less serious, depends very much on its own particular facts and circumstances.
    
15. In my view, offenders found guilty of exceptionally serious murders should not be considered for parole. Parole should be reserved only for highly serious and less serious cases of murder.
    
16. When determining the length of time to be spent in prison before the offender can be considered for parole, it is my view that, for highly serious cases, an appropriate range would be 26 years. For the less serious cases, the range should be 12 years with an option to further reduce this range in exceptional circumstances such as old age, serious health conditions, genuine reconciliation, payment of compensation to the victim's relatives and other similar situations.
    

The present application

17. Having said that, I now turn to the present case.
    
18. The present case has a number of aggravating features which must be taken into account when determining seriousness of the case and the appropriate range to be recommended.
    

Aggravating features

19. First is the fact that a knife was used in the murder. Many cases have come before this court where death or serious injuries have been caused as a result of knives being used. This demonstrates the fact that there are people going around in public armed with knives and other dangerous weapons. This practice must be discouraged and calls for deterrence by the imposition of lengthy sentences and lengthy waiting periods for parole.
    
20. The second aggravating feature is the fact that the prisoner had taken the knife from PW14 and went away with it knowing that he was drunk. There is absolutely no justifiable reason for him to take the knife from its owner, PW14. The fact that within a matter of minutes after taking the knife he ended up fighting the deceased leads one to the irresistible conclusion that he intended to use the knife if the opportunity presented itself. That was what happened in this case.
    
21. The third aggravating feature is the fact that it was the prisoner who went looking for trouble. His punching of the truck without any reason whatsoever and posing a challenge to those in the vehicle if they were not happy about his behaviour is characteristic of one looking for, and wanting to cause, trouble. An innocent person had lost his life prematurely as a result of the prisoner's senseless conduct. These are matters which the court should not turn a blind eye to when considering the retributive or punitive and the deterrent elements of the punishment to be imposed and the length of the waiting period for parole.
    

Mitigating factors

22. On the other hand, the prisoner is a young man of 27 years old. He did something which he should not have done and, on hindsight, I am sure he regretted what he did and the loss of life that resulted from his actions.
    
23. He is not a very educated person by any standard, having reached only Grade 2 at Ambe Primary School in East Fataleka. He therefore cannot be regarded in the same way as an educated or a sophisticated person. He must be taken as he is, that is, a person who is still very much the product of his traditional environment and culture and uninfluenced by the sophistications of an educated society.
    
24. Furthermore, this is a case which does not bear the hallmarks of pre-planning or pre-meditation. I am satisfied it was murder which was committed in the heat of the moment.
    
25. Finally, I accept that compensation has been paid by the prisoner's family to the victim's family amounting to 10 red money. Mr. Peter Usi, who conducted the reconciliation ceremony, confirmed in court that 10 red money has been paid and accepted by the victim's family as compensation for the death of the victim. Mr. Usi said in his testimony that 40 red money and $100,000.00 was demanded but that the prisoner's family could not afford that amount so he negotiated with the victim's family for a reduction of the amount and 10 red money was the agreed settlement. According to Mr. Usi, the victim's family had accepted the compensation and that peace has been restored between the two parties.
    
26. Mr. Usi must be applauded for taking the initiative to settle this very serious matter. Payment of compensation is part of the custom of Solomon Islands and is recognised as part of the laws of Solomon Islands[3]. It is a means of settling disputes and establishing peace and harmony in a society or between warring groups or disputing parties[4]. It is also a sign of remorse. In most instances, it also has punitive elements in a few cases it is paid, not on the basis of culpability, but simply for the purpose of establishing peace and harmony between the disputing parties irrespective of who is in the wrong.
    
27. Payment of compensation is therefore an important factor to consider when deciding the question of parole or when making recommendations as to the minimum period to be spent in custody before parole could be considered. The court must hear evidence both from the prisoner's side and the victim's side to confirm that compensation has been paid and to verify the situation which now prevails as a result of the payment of the compensation. In Sosopu v R[5] where His Lordship, Sir Palmer, CJ, said:
    

"... it is essential that he (the magistrate) satisfies himself the reconciliation is genuine and has been freely accepted by the complainant. In order to do this, it will usually be necessary for the complainant to attend and be questioned by the court. It is only in the most exceptional circumstances that reconciliation should be accepted without the attendance of the complainant and then only where there is clear evidence from the complainant of his agreement ".

28. In the present case, it is unfortunate that none of the victim's family members who took part in the reconciliation ceremony has been called to verify Mr. Usi's assertion that normality has now returned to the two families despite the payment by the prisoner's family of only 10 of the 40 red money, and none of the $100,000.00, asked for by the victim's family. For the court to be convinced that such reconciliation ceremony was genuine and had achieved its purpose of re-establishing normal relationships, a member of the victim's family who took part in the ceremony should have been called to verify the payment of the compensation and to confirm the normality of relationship between the families.
    
29. Despite that failure, I am satisfied that compensation has been paid and that has been taken into account in setting the minimum range recommended in this case.
    

Recommendation

30. In my view, this case is one which can be classified as a less serious case and, in the light of the aggravating features and the mitigating factors stated above, I would recommend that the prisoner spends a minimum of 10 years in custody before parole can be considered.
    

THE COURT

James Apaniai
Puisne Judge

---

^[1] HCSI-CRC No. 15 of 2007
^[2] [2005] 1 Cr. App. R. (s) 67
^[3] Section 27 of the CPC.
^[4] R v Rakaimua HCSI-CRC No. 24 of 1995; see also R v Takoa HCSI-CRC No. 115 of 1993.
^[5] CRC No. 288 0f 2003, at p. 4.