Regina v Cawa [2012] SBHC 134; HCSI-CRC 405 of 2008 (30 November 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

Criminal Case 405 of 2008

REGINA

-v-

RONNIE CAWA AND KELLY TATAVE

Dates of Hearing: 2nd October 2012.
Date of Judgment: 30th November 2012.

Mr. M. Hardman and Mr. R. Iomea for the Crown.
Ms. P. Spence for Cawa.
Mr. W. Ghemu for Tatave.

SENTENCE

1. Ronnie Cawa ("Cawa") is charged with manslaughter contrary to section 199 of the Penal Code in relation to the death of John Tova, also known as John Beku, ("deceased") at Ogio village, Weather Coast, Guadalcanal.
   
2. The Crown says that Cawa shot the deceased with a firearm on or about the 27th May 2003 and as a result the deceased died.
   
3. Kelly Tatave ("Tatave") is charged with unlawful wounding of the deceased contrary to section 229 of the Penal Code.
   
4. The Crown says that on or about the 27th May 2003 at Ogio village, Weather Coast, Guadalcanal, Tatave unlawfully wounded the deceased.
   
5. Both Cawa and Tatave have pleaded guilty to their respective charges.
   
6. The agreed facts are as follows.
   
7. On the 27th May 2003, a GLF group was instructed by Harold Keke ("Keke") to disarm and abduct certain members of the Joint Operations Group ("JOG") at Ogio village. The group was led by Cawa.
   
8. The other members of the group were Kelly Tatave, Sam Leketo, John Bote and some others. They came to Ogio under cover of darkness in the early hours of the morning on 27th May 2003, probably between 3am and 4am.
   
9. In one hut were three JOG members including one other person. This group was the target of Keke's orders. This group included the deceased, Wetily Tova (the deceased's brother), Rilon Rasile and Regan Phillip, all of whom were asleep in the hut at that time. The police had armed the JOG group and at least the deceased had a gun.
   
10. Bote, Leketo and another entered the hut along with others and a struggle then ensued in the hut between them and the JOG members, including the deceased. As a result, the deceased was wounded in his legs and dragged out of the hut.
    
11. Afterwards, the deceased was shot in the head by Cawa with a firearm as he partially proned on the ground. Near the deceased and Cawa at that time were members of the GLF including Leketo, Tatave and another person.
    
12. Dr. Dodd, a forensic pathologist, had determined that the cause of the deceased's death was a single high velocity gunshot wound to the head with another gunshot wound to the left leg and a blunt force trauma to the left chest.
    
13. Cawa had accepted responsibility for the death of the deceased.
    

Ronnie Cawa:

14. Mr. Cawa is 31 years of age, not married and comes from Weather coast, Guadalcanal Province. He has been in custody since 2003.
    
15. I note that he has been convicted of 12 murder cases for which he is currently serving 12 life sentences. This shows that Cawa does not have a clean criminal record. I have taken that into account.
    
16. It is conceded on behalf of Mr. Cawa that he was a member of the GLF, a group which was set up to assert the rights of indigenous people of Guadalcanal especially in relation to their land.
    
17. It has also been agreed that Cawa was acting under instructions from Harold Keke in the operation to disarm and abduct certain members of the JOG when the offence was committed.
    
18. That being an agreed fact, I am obliged to accept that this is so despite the fact that it is common knowledge that Cawa was the operations commander of the GLF and took an active part in organizing the GLF militants as said so in R v Hei[1] and as Cawa himself admitted in R v Cawa[2].
    
19. It is also submitted that Cawa had pleaded guilty at the earliest opportunity and he should be given credit for that.
    
20. The Crown, however, disputes that. The Crown's position is that no discussion was held between the prosecution and the defence after the filing of the information in 2011 in regards to the plea in the matter and so it could not be said that Cawa had pleaded guilty at the earliest opportunity.
    
21. I do not agree with the Crown's position. Pleas are taken upon arraignment. It is on arraignment that the accused is required to say whether he is guilty of the charge or whether he is not guilty.
    
22. Where the accused pleads guilty, the trial is aborted and time and expense are saved. It is the saving of time and money that is the mitigating factor where the accused pleads guilty.
    
23. In this case, Cawa was arraigned on the 2nd October 2012 and pleaded guilty upon arraignment. It was his first arraignment and he pleaded guilty. That being so, I accept that he has pleaded guilty at the earliest opportunity and I give him credit for doing so.
    
24. Cawa has apologized in court to the mother of the deceased who was also present in court. That is a strong mitigating factor and I have taken that into account.
    
25. It was also submitted that Cawa has completed a number of rehabilitation programmes organized by various Christian churches and organizations and that the completion of those programmes should be taken into account.
    
26. Unfortunately, the behavioural assessment report on Cawa by the Case Management Unit of the Correctional Services did not indicate any viable prospect of rehabilitation on the part of Cawa.
    
27. It is not certain at this point in time whether or not Cawa has a good prospect of rehabilitation. I give him no credit in that regard.
    
28. Delay in prosecuting the case has also been suggested as a ground for mitigation of sentence. It is submitted that the offence was committed some 9 nine years ago in 2003.
    
29. There is no dispute that delay is a mitigating factor in sentencing. However, the delay in the present case is understandable. It is a tension-related case and it is a case against one of those men against whom there were also a number of murder and other charges, arising from the tension. As previously stated, Cawa is currently serving 12 life sentences for murder and therefore I do not see how the delay in this case would have affected him. Delay therefore cannot be a mitigating factor in this case.
    
30. A number of case authorities have been provided by counsel for Cawa and the Crown for the purpose of showing the range of sentences which have previously been imposed for manslaughter cases.
    
31. These cases show that where no weapons are not used, the sentences ranged from 1 year to 5 years with each case depending very much on its own particular circumstances.
    
32. In the present case, a very dangerous weapon was used to end the deceased's life. He was killed by the use of a gun at point blank range. That being so, this case must fall within the higher range of sentences for this kind of offence.
    
33. It is not necessary for me to review all the sentences imposed in relation to manslaughter cases by this court. Most of those cases have attracted sentences ranging from 1 to 5 years[3].
    
34. These are what I would consider as the lower end of the sentencing tariff for manslaughter cases. Mid-range sentences would be 6 to 8 years imprisonment and the upper range would be 9 years and above. Cases which involved weapons must attract no less than the mid-range sentence unless the circumstances of the case justify a lower sentence.
    
35. In Ligabutu v Regina[4] ("Ligabutu"), the Court of Appeal reduced the guilty verdict of murder to one of manslaughter. The appellants, Ligabutu and Honitele, were members of a party that came with firearms and killed another person. It was found that the appellants were parties to a common criminal enterprise in relation to the murder of the deceased. They were keeping watch at the canoe and when the principal offender came to the canoe, they gave him the ammunitions with which the deceased was killed. They were sentenced to 8 years imprisonment.
    
36. In R v Tuita[5], the accused was charged with murder but convicted of manslaughter because the necessary intention could not be established. In that case, alcohol and a weapon (diving knife) were used. The court imposed a sentence of 7 years.
    
37. In R v Teo'ohu[6] a charge of murder was reduced to manslaughter after trial. Alcohol and a weapon (knife) also played a part in the offence. Compensation was paid by the accused. A sentence of 6 years was imposed.
    
38. I have taken note of these cases.
    
39. As stated by Sir Albert Palmer CJ in R v Kiriau[7], the offence of manslaughter carries a maximum of life imprisonment, some more serious and warranting a corresponding lengthy sentence whilst others less serious and so attracting a lesser sentence in terms of the length of time in prison.
    
40. In the present case, the deceased was shot in the head at point blank range by Cawa while he lay injured and helpless on the ground. This case is not in the same category as any of the cases mentioned above.
    
41. In fact the circumstances of this case are more serious than Ligabutu where the appellants were given an 8 year sentence.
    
42. In my view, this is a case which falls within the upper range of the sentencing tariff. The only question is how long should the sentence be.
    
43. Having considered all other mitigating factors submitted on behalf of Cawa and the submission by the Crown, I have come to the conclusion that the appropriate sentence in the circumstances of this case is 9 years imprisonment.
    
44. I therefore sentence Ronnie Cawa to 9 years imprisonment. This sentence is to be served consecutive to the current sentences he is serving for other offences.

Kelly Tatave:

45. I now turn to Kelly Tatave.
    
46. Tatave has pleaded guilty to the offence of unlawful wounding contrary to section 229 of the PC.
    
47. It is alleged that on 27th May 2003 at Ogio village in the Weather coast area of Guadalcanal Province, Tatave punched the deceased in the face wounding him.
    
48. Unfortunately, the nature or seriousness of the facial injury, which is a factor relevant to sentencing, was not disclosed. It is not clear whether the facial injury was serious or minor.
    
49. In the absence of any evidence in that respect, I will give the accused the benefit of doubt and consider the injury as minor.
    
50. I have considered the mitigating factors submitted on behalf of Tatave as well as the authorities cited by both the defence and the Crown in connection with their respective submissions.
    
51. In particular, I have taken into account the delay in prosecuting this case; the apology expressed in court by Tatave to the deceased's mother; his guilty plea; the fact that he had a clean criminal record prior to the commission of this offence; and, the fact that he had no weapons on him at the time of the commission of the offence.
    
52. I have also taken into account the report by the Correctional Services concerning the general behaviour and conduct of Tatave while in custody as well as his achievements in the Great Truths of the Bible. I hope these Truths will now set him free.
    
53. Tatave was sentenced in 2011 to 3 years and 6 months imprisonment for indecent assault committed in 2008. He is currently serving that sentence.
    
54. However, as the present offence was committed prior to the 2008 offence, for the purposes of sentencing in the present case, I will treat Mr. Tatave as a person with no previous conviction.
    
55. Unlawful wounding is a misdemeanor and the maximum sentence for such offence under section 229 of the PC is 5 years imprisonment.
    
56. Various cases of unlawful wounding previously decided by this court have attracted custodial sentences ranging from 4 months to 18 months[8]. However, in my view, while these cases are a useful guide, whatever sentence is to be imposed in each case must also depend on the circumstances of that case.
    
57. Having regard to the circumstances of this case and the submissions of both the defence and the Crown, as well as the period that the accused has already spent in custody in relation to this case, it is my view that an appropriate sentence would be 12 months imprisonment but suspended on condition that Tatave keeps the peace for a period of 24 months[9].
    
58. This sentence shall be consecutive to the current sentence being served by Tatave.
    

THE COURT

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^[1] [2007] SBHC 91.
^[2] [2007] SBHC 26.
^[3] For example, see R v Poa CRC No. 370 of 2009; R v Kwaimani CRC No. 3 of 1997; R v Eniole CRC No. 602 of 2005; R v Madada CRC No. 83 of 2008; R v Lawrence CRC No. 98 of 1993; R v Kopuria CRC No. 155 of 2008.
^[4] [2006] SBCA 19
^[5] HCSI-CRC 1-85, 11^th March 1985.
^[6] [1990] SILR 265.
^[7] Unreported, CRC No. 153 of 2010, at p. 1.
^[8] See DPP v Simeon (No. 2) [1986] SBHC 7, Dalo v R [1987] SILR 43, Nokali v R [2008] SBHC 93
^[9] See section 44(1) of the Penal Code.