Regina v Poa [2011] SBHC 8; HCSI-CRC 370 of 2009 (11 March 2011)

HIGH COURT OF SOLOMON ISLANDS.
(Faukona PJ).

Criminal Case No. 370 of 2009.

REGINA

V

BERETE POA.

Date of Hearing: 4th March 2011.
Date of Sentence: 11th March 2011.

For Prosecution: Ms Taeburi and Ms Olutimayin.
For Accused: Mr Kesaka and Ms Waqavonovono.

SENTENCE

Faukona J: The accused Bereto Poa was charged for one count of Manslaughter contrary to section 199 of the Penal Code.

2. The facts were that, on 24th February 2009 the accused and his friends/relatives including the deceased left Goldridge and came to Honiara. At Honiara they bought beers and drank it. After completing their business in Honiara, about 4pm, the group travelled back to Goldridge in three separate taxies. They bought more beers in Honiara and drank them on their way home.

3. The deceased, accused, Alick Seseko and Francis Lavi were travelling in one and the same taxi. In the taxi the deceased argued with the accused because he wanted more beers and cigarettes from the accused who told him to share with others, as their supply had run out.

4. When the group arrived at the crusher area they got off and continued drinking the rest of the beers. The deceased continue argued with the accused but no one took heed as they were all drunk. At some stage they decided to get more beers from Piti village. All the boys went ahead, while the accused and the deceased followed behind. After walking for about one hundred meters Eric Tala looked back and saw the deceased lying on the ground. Not long after the accused caught up with the group of boys. Erick Tala asked him what he was doing to the deceased. In reply he said he pushed him because he was arguing too much. The group continued to Piti village. Frances Lavi went back to check on the deceased. On arrival at the spot Francis Lavi saw the deceased body lying on the ground, facing upward. He checked the deceased pulse and heart beat but heard nothing. He confirmed the deceased was dead.

5. Doctor's report revealed that the deceased died of the fall to the ground.

6. The accused pleaded guilty when he was arraigned, and also accepted the facts as true to his conscience.

7. It is now the duty of this court to decide on the appropriate sentence to impose in the circumstances that are available.

Aggravating features

8. Quite precisely, as it appears, the only aggravating feature in the circumstance of this case is the level of intoxication. The accused was so drunk after a day drinking which continued until the incident. Minor scuffle between drinking mates is not always aggravating or serious. Often they just ignored it. As such the accused cannot be expected to act decently to check on the deceased after he was pushed to the ground. It requires a decent person to realise and ignore negligence and do as normal humans would do. Nothing of any decency is expected from a fully drunkard person who desire for more alcohol than being responsible. The effect of excessive intoxication is nothing but total senseless. All manner of decent thinking and reasoning is for beyond reach. So it would not be expected that an intoxicated accused to check on the deceased before he moved on. That has not been realised as a concern which in this case appears to be quite remote. It is not negligence, or carelessness or even non fore see ability but purely high intoxication.

I noted a mild push often forgotten. Not knowing the effect of alcohol hallucinating the mind to think a mild push will not amount to a deadly result, which did occur in this case. However I took that as an accompanying element when considering the level of aggravation. Apart from that, there seem not to be any further element of aggravation.

Mitigating Factors

9. I appreciate Counsels for their concerted effort in assisting the Court in considering the mitigating factors.

(a) Firstly it is seen as accused being willing to take on responsibility by preparing to a plea guilty to a charge of manslaughter. That has been his hope. When the charge is reduced from murder to manslaughter the accused enters plea of guilty at the first available opportunity. I applaud the accused for this boldness. By pleading guilty manifests that the he is willing to accept any sentence impose by the court. I agree with what CJ Palmer stated as one of the guideline in Gerea V Regina[1], which he said;

"One of their guidelines provides, that a defendant who has pleaded guilty be granted some reduction in what would have otherwise been proper for the offence. Even to the extent of one quarter or one third of what would have been the sentence".

(b) The appreciative secret is that the value of pleading guilty means this case comes to an end. It serves every body's time and resources. Witnesses are no longer necessary to appear in Court and subjected to intense cross examinations. Counsels would continue to appear if proceed further. It serves tax payers substantial amount by shortening the proceedings. In furtherance a plea of guilt is an expression of remorse. It shows the accused has regrets for the result of his actions and he is willing to accept any result though it may be costly. This is exactly what the accused do. I grant him credit for that.

(c) This case is alcoholically related. Before that, the accused is a decent person. He was married with wife and two children. And they rely on him for support. The personal difficulties his family encounter should encourage him set his priorities right. I regret that hardships encounter by family following the husbands indulgent in crime cannot be accepted as mitigating factor. As a husband he should consider as priority, his family, wife and children and the future of the children, and not alcohol. He has to draw a line somehow, between family and sociality.

(d) With a good back ground, free from criminal record, this offence is one of. It is not something he intends to achieve. When his name was implicated he gave himself up to Police Tetere. That eases the level of investigation. From that date on he is in custody until today. I consider that he is very cooperative with Police.

(e) No weapon was used to inflict the fatality. The level of culpability is quite low. A push by drunkard on a drunkard end up a drunkard lost his soul.

(f) The accused is near middle age man of 29. His family and the family of the deceased lived in the same village. In fact they are related to each other. I accept two proposals advance by the accused's counsel. That is to cease from drinking alcohol forthwith, and to reconcile with the deceased family. Whilst some judges act on the proposal as eminent truth. I would have some reservations for fear of being a mere myth. The sole purpose for my indifferent in approach is because I only consider truth, and only truth will set you free.

It has become illusive and out of traditional context that reconciliation process is used as an element to be considered to reduce prospective sentence. Mentality in this country is that when court is about to consider a sentence people rush or begin to negotiate reconciliation for the purpose of reducing the sentence. In this case two years had gone. No one talks about reconciliation. It has to be acknowledged that only one person is incarceration, the rest of the family are out there in the village living with the family of the deceased eyeing one another, as days go by. As I have said I will only consider the finish work and not the undone.

(g) I agree with the accused's Counsel that the accused has good prospect of rehabilitation. Not only because of his age and more years ahead to venture into. To blend into society and be acceptable as part of it, he has to accept the unfinished work of reconciliation which he has to do, and to cease from drinking alcohol as he proposes. Surrendering to Police and cooperation with Police investigation does not show good prospect of rehabilitation. It merely reflects character attitude. To maintain good character and attitude alcohol must be relinquished so that he will be part of a society that advocates law and order and upholds peace and harmony.

(h) In reality the accused has already spent 2 years in incarceration. That should commensurate the beginning of rehabilitation process. By now the accused should learned his lessons and his past mistakes. To ensure the accused focuses on things to come, and forget the past, is the aim of this sentence. To deter him from indulging in antisocial behaviour any more. And to remind him and the public at large, that taking the life of another unintentionally, is a serious offence in law. The court will not hesitate to imprison a person once convicted, for a longer term. Hopefully after being in custody the accused has now realised the punitive judgment of law applies equally to those who may wish to venture into criminality and antisocial behaviour. It would appear that both counsels agree that imprisonment is inevitable.

10. In an attempt to enumerate the most appropriate figure as a term of imprisonment; the counsels have assisted greatly and I refer to the cases where both equally refer to:-

(a) R v Kwaimani[2]

(b) R v Pasirivo[3].

In the first case the accused was gaoled for three and a half years for powerfully kicked the face of the deceased who fell backward and sustained injuries. As a result he died. In the second case the accused was sentence for three years for two punches and two kicks inflicted. The death was caused by the kick to the right side of the rib.

11. The defence Counsel further refer to R v Garunu[4]. In that case the act of two kicks whilst the deceased was on the ground following a punch which landed him on the ground. Accused was gaoled for three years.

12. The cases of R v Pituvaka[5] and R v Wakio and Maehai[6] were also referred to by the defence counsel to reflect minimum sentence imposed for mild act that caused death. In particular in accidental shooting as in Pituvaka's case and self defence in Wakio and Maehai's case. The Counsel for prosecution concur with the defence.

13. The defence counsel appear to emphasise in cases where kicks and punches actually causing death, are more serious than just a punch or push. Therefore the sentence would be a figure between 2-3 years.

14. The prosecution Counsel agree that appropriate sentence be between 2-3 years.

15. Whilst I agree with counsels, those submissions are guidelines. However, the prosecution counsel further reiterated that each case be decided on its own facts, and suggested that a cut off bench mark be drawn and allow the court to plus or subtract according to aggravation and mitigation factors.

16. The fact is that, the prosecution has reiterated the guidelines which the colonial judges had left with the courts. And that has been adopted since then.

17. It would be best to stick to the traditional. However, it would not be an error in law, in my respectable view to adopt the suggestion both counsels have conceded with, which I see as fair and appropriate sentence to impose.

18. I have taken the task in considering all the mitigating and aggravating factors as submitted by the counsels. I have decided that a sentence of two and half years imprisonment is appropriate.

19. Further, I also consider the fact that there is a memo from Inspector Hauhulu who is in charge of block one where the accused resides. For the 2 years and 2 days the accused being in jailed has been very good in general conduct and behaviour. He has shown cooperation and respect to staff and also to other inmates. The nature of report implies that one third remission is most evitable be granted to the accused.

20. However, I accepted the prosecution counsel suggestion that any remission be left for prison officers to calculate. That should be the case here, as remissions granted to well behave prisoners are responsibility of prison officers.

21. This Court therefore imposed Two years and six months imprisonment and will commence from 26 February 2009, the Court so order accordingly.

In passing may I point out that the period of remand is quite long. Some executive decision should have been made along the way for bail to curb this sort of situation.

The Court.

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^[1] [2005] SBHC 34.
^[2] (1997) SBHC 93; HCSI – CRC 3 OF 1997 (14 April 1977).
^[3] (2205) SBHC 101; HCSI – CRC 114 of 2004 (December 2005).
^[4] Criminal Case No. 23 of 1986.
^[5] Criminal Case No. 22 of 1986.
^[6] Criminal Case No.19 of 1998.