Regina v Taganepari [2011] SBHC 80; HCSI-CRC 33 of 2010 (23 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

V

DEVINAL TAGANEPARI

Date of Hearing: 19 August 2011
Date of Judgment: 23 August 2011

Ms. A. Driu for the Crown
Mr. A. Kesaka for the accused

SENTENCE

Apaniai, PJ:

Introduction

1. The accused was originally charged with the murder of Jack Kapani ("deceased") on 24 October 2009. It was alleged that the accused murdered the deceased at Tau village, Tasimboko district, North East Guadalcanal, on the above date.
   
2. The charge was later reduced to manslaughter and the accused then pleaded guilty to the manslaughter and was accordingly convicted. He now appears for sentence.
   

The facts

3. The facts of the case are that the accused lives at Tau village. He had spent the day (24/10/2009) drinking with his friends at Kepi village which is not far from Tau village.
   
4. At around 9pm, he decided to walk home. On the way, he met the deceased who was also living at Tau village and was returning to that village. On meeting the deceased, the accused called the deceased "conman" whereupon the deceased replied by also calling the accused "conman". It was then that the accused slapped the deceased, grabbed his shirt, pushed him and kicked him.
   
5. It was said that after the assault, the deceased thanked the accused while the accused apologized to the deceased and then both went their own way.
   
6. However, upon arrival at home, the deceased started experiencing pain in his abdomen. His neighbours tried to assist by giving him water and panadol and by massaging his body but the pain persisted. Between 5.30am and 6am the next day (25/10/09), the deceased died in his bed.
   
7. A post mortem was carried out on the deceased by Dr. Roy Maraka who found that the deceased's spleen had been ruptured which caused a blood collection (haemoperitoneum) in the abdominal area which, in turn, caused the death of the deceased.
   
8. On hearing the death of the deceased in the morning of 25th October 2009, the accused surrendered himself to the police who then arrested him and placed him in custody. He has been in custody since then until now.
   

Mitigation

9. In mitigation, it was submitted on behalf of the accused that the accused and the deceased were friends and drinking mates and that the death was an unfortunate incident which happened as a result of an argument between friends and there was no intention to harm the deceased.
   
10. It was also submitted on behalf of the accused that a traditional reconciliation ceremony was held between the family of the accused and that of the deceased, witnessed by police representatives, chiefs' representatives and lawyers for the accused, during which $28,000.00 was paid to the deceased's family along with food and pigs as compensation and that during the ceremony, a declaration was made by the deceased's family that peace was now restored between both families.
    
11. It was further submitted that upon hearing of the death of the deceased the following morning, the accused felt very sorry and surrendered himself to the police immediately.
    
12. Finally, it was submitted on behalf of the accused that he is a first offender, he is young (25 years old), no weapon was used in connection with the assault, the accused was remorseful, he co-operated with the police and he pleaded guilty to the charge at the first opportunity.
    

Aggravating factors

13. It is said that the accused was under the influence of alcohol when the incident happened and this is an aggravating factor. It was also said that the assault was unprovoked.
    
14. In addition, it was also said that a person has prematurely lost his life as a result of the assault on him by the accused. The deceased was caught off guard and had no chance to defend himself.
    

Comparative sentences

15. A number of case authorities have been provided by counsel for the accused and the Crown for the purpose of showing the range of sentences which have previously been imposed for manslaughter cases. I am grateful to counsel for doing so.
    
16. These cases show that where no weapons are used, the sentences ranged from 1 year to 5 years with each case depending very much on its own particular circumstances.
    
17. I have taken note of those cases. I agree that the sentence to be imposed in relation to each case must depend on the circumstances of the case.
    
18. In R v Poa[1], the accused had pushed the deceased who fell and injured his head which lead to his death. The accused was 29 years old at the time of the offence. He was a first offender and had pleaded guilty at the first opportunity. He was sentenced to 2½ years imprisonment.
    
19. In R v Kwaimani[2], the accused kicked the deceased who fell backward and injured his head. He died as a result of the injury. He had no previous convictions. He was sentenced to 3 ½ years imprisonment.
    
20. In R v Enilole[3], the accused killed his wife with a single kick to the abdomen which ruptured her spleen. He pleaded guilty to the charge. He was 23 years old. He was sentenced to 3 years imprisonment.
    
21. In R v Madada[4], the accused killed his wife with a single punch to the abdomen which ruptured her spleen. He pleaded guilty to the charge. He was sentenced to 3 years imprisonment.
    
22. In R v Lawrence[5], the accused kicked his wife in the abdomen which resulted in the death of the wife. He pleaded guilty to the charge and was sentenced to 4 years imprisonment.
    
23. In R v Kopuria[6], the accused kicked the deceased twice in the abdomen, punched the deceased in the face and threw him onto the ground. He was a first offender and had paid $30,000.00 compensation to the victim's family. He was sentenced to 2 years imprisonment.
    

The present case

24. In the present case, the accused is a young man of 23 years at the time of the offence and is now 25 years. I have taken into account the aggravating factors submitted by the Crown as well as the mitigation factors submitted on behalf of the accused.
    
25. I have also considered the various cases referred to by counsel as to the range of sentences imposed for similar offences and in particular those cited earlier in this judgment.
    
26. I am satisfied that this is an incident which was not planned and is one which can be described as a "spur-of-the-moment" incident. The accused was on his way back to his village. So was the deceased. They met on the road and called each other "conman". The accused slapped the deceased, pushed him and finally kicked. The kick had caused a rupture in the deceased's spleen which resulted in the deceased's death.
    
27. I think the slapping, pushing and kicking were unnecessary. It was the accused who first branded the deceased as "conman", presumably because the deceased did not buy beer for the accused as he promised the week earlier. If they both were friends as claimed by the accused, then I do not think the response by the deceased in calling the accused "conman" was such as to deprive the accused of the power of self restrain as to seriously attack the deceased the way he did. However, the accused was drunk at that time and I believe that his drunkenness had reduced his power of self restrain and this had contributed a lot to the way he had reacted to the deceased's response.
    
28. Nevertheless, it has been said by this court before[7], and it will be said again, that being drunk is not a mitigating factor but is an aggravating factor when it comes to sentencing offenders for committing offences while drunk. People who commit offences while drunk must not think that being drunk is a complete excuse for their behaviour.
    
29. In the present case, I have considered the aggravating and mitigating factors as well as the circumstances of the case. I have also considered the sentences passed by this court in respect of previous offences of similar nature as submitted by counsel. Having done that, it is my view that the appropriate sentence for this case is one of 3 years imprisonment.
    
30. The accused is therefore sentenced to 3 years imprisonment to be back dated to the time when he was placed in custody, that is, 25 October 2009.
    

THE COURT

Justice James Apaniai
Puisne Judge

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^[1] CRC No. 370 of 2009
^[2] CRC No. 3 of 1997
^[3] CRC No. 602 of 2005
^[4] CRC No. 83 of 2008
^[5] CRC No. 98 of 1993
^[6] CRC No. 155 of 2008
^[7] For example, see R v Oma CRC No. 1440 of 2010.