Regina v Consinto [2012] SBHC 136; HCSI-CRC 144 of 2012 (4 December 2012)

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

Criminal Case 144 of 2012

REGINA

-v-

REBSEY CONSINTO

Date of hearing: 20th, 22nd, 26th, 27th and 29th November 2012.
Date of Judgment: 4th December 2012.

Mr. R. Talasasa, Director of Public Prosecutions, with Mr. N. Thita, for the Crown.
Mr. D. Hou, Public Solicitor, for the accused.

SENTENCE

Introduction:

1. The accused, Rebsey Consinto, was originally charged with the murder of Sarapino Rachale ("deceased") under section 200 of the Penal Code ("PC").
   
2. He offered to plead guilty to manslaughter but the offer was rejected by the Crown which preferred to proceed with the murder charge.
   
3. The accused was arraigned on the 20th November 2012 and pleaded not guilty to the murder charge. Trial on the murder charge then began immediately after arraignment.
   
4. On the third day of trial, that is, 27th November 2012, Mr. Talasasa, the Director of Public Prosecutions, sought an adjournment to re-consider the murder charge. He intimated to the court that he intended to reduce the charge to manslaughter.
   
5. Adjournment was granted and, on 28th November 2012, the Director filed both a Nolle Prosequi in respect of the murder charge and an information charging manslaughter against the accused.
   
6. The accused was re-arraigned on the manslaughter charge on the 29th November 2012 and pleaded guilty to the manslaughter charge.
   
7. He now appears for sentence.
   

The facts.

8. The agreed facts are set out below.
   
9. The accused and the deceased are cousins. They both came from Wanderer Bay, south west Guadalcanal. The deceased was 20 years old and was a police officer.
   
10. Occasionally, the accused and the deceased would drink beer together at the house of Michael Liule and his wife, Helina, at Henderson area, opposite the Zome compound located east of Honiara. Both the accused and the deceased normally visited Michael and Helina and stayed there with them. Michael is a cousin of both the deceased and the accused.
    
11. On Thursday afternoon, 18th August 2011, the deceased called in at Michael's house. He had some beer with him. He invited Michael to join him for a drink but Michael refused. Later at night, he and Michael went to Henderson Market and bought some more beer. Michael returned to his house while the deceased continued drinking at the Henderson Market until morning (Friday 19th August 2011). He then returned to Michael's house. Not long after arriving at Michael's house, he left for Honiara where he bought some more beer and returned to Michael's house where he continued drinking the beer.
    
12. The deceased then invited the accused to join him drink the beer. They drank beer together until Saturday afternoon (20th August 2011). They slept and then in the evening of that Saturday, they woke up and then continued drinking again but this time it was not beer but kwaso, a home-made liquor drink. They continued drinking kwaso into the night and then went to sleep.
    
13. On Sunday morning, 21st August 2011, the deceased went and bought some more kwaso and returned to Michael's house where he and the accused continued drinking the kwaso.
    
14. When the kwaso ran out, the deceased started arguing with the accused about the kwaso. The deceased grabbed a small knife then started moving around with the knife in his hand. He came to the back of Michael's house and slashed into halves a plastic covering hanged at the back of the house to prevent the flooring timber from rain.
    
15. The deceased then walked away from Michael's house to the road west of Michael's house. The accused grabbed a 3-corner iron bar and ran after the deceased. On reaching the deceased, the accused swung the iron bar at the deceased's hand wanting to whip the small knife from the deceased's hand. Unfortunately, the iron bar landed on the deceased's head causing the deceased to fall to the ground unconscious. The deceased was rushed to the National Referral Hospital but died in the early hours of Monday 22nd August 2011.
    
16. A post mortem examination was carried out by Dr. Maraka on the deceased the following day, Tuesday 23rd August 2011. The report by Dr. Maraka relating to the examination revealed that the deceased died as a result of a subdural haemorrhage to the left side of the brain caused by a blunt trauma to the head. That trauma was the result of a blow by the accused to the deceased's head with the iron rod thereby inflicting a laceration measuring 100x12mm and 23mm deep on the skull of the deceased which exposed the deceased's skull and the brain.
    

Mitigation.

17. The accused is a first offender. It has often been said that first offenders are entitled to a measure of leniency. I agree. That rule still stands and so I take it into account.
    
18. The accused is also a young man of 24 years of age. He has a good prospect of rehabilitation. He has completed his Form 6 education at Ruavatu High School in 2010 and had wanted to further his education at USP Centre but could not do so due to financial difficulties. He had been trying to raise funds for his fees at USP Centre by selling cocoa and had been doing so up to the time of this incident. I am satisfied the accused has a good chance of rehabilitation.
    
19. The accused has expressed remorse in court at the fact of having caused the deceased's death. I am satisfied he is genuinely remorseful. He had offered to plead guilty to the manslaughter charge but his offer was rejected. In other words, he was willing to plead guilty at the first opportunity. He is given credit for that. A guilty plea is a sign of remorse and so is the fact that he had co-operated fully with the police during the investigation stage of the case.
    
20. Not only has the accused regretted his action, but he will certainly continue to be haunted by the memory that he had prematurely taken away the life of another young man who was his very own cousin brother.
    
21. It was also submitted that the accused had initially escaped when he realized the injury he had caused to the deceased but later returned and assisted in carrying the deceased into the vehicle which transported the deceased to the National Referral Hospital. That is also a sign of remorse and I have taken that into consideration.
    

Aggravating features.

22. Having said that, I cannot turn a blind eye to the fact that another young man had lost his life as a result of the accused's conduct. Life is precious and once lost it can never be regained.
    
23. As said by Justice Pallaras in Regina v Baomate[1]:
    

"Whatever view is taken of the appropriate range of sentencing options available to the court, the essential criminality of the offence remains the same – human life has been taken and lost. Whatever else is considered, that fact remains the core of the offence and must be reflected in the sentence imposed."

24. I am sure that the accused could not have been ignorant of the probability that striking at a person with an iron bar of the type and size used in this incident could result in serious injury or even death to the person.
    

Comparative sentences.

25. A number of case authorities have been provided by counsel to indicate the range of sentences previously imposed for manslaughter cases. I am grateful for counsel's assistance. However, I need not refer to all of them here.
    
26. Suffice to say that according to those authorities, cases where no weapons were used, the sentences ranged from 1 year to 5 years. For those cases where weapons were used, the sentences ranged from 6 years upwards. Of course the circumstances of each case must play a major role in determining the appropriate sentence.
    
27. Furthermore, unless exceptional circumstances exist to justify otherwise, any sentence for manslaughter must inevitably be custodial. A custodial sentence in this case is therefore inevitable.
    
28. Of the cases referred to by counsel, the cases of R v Oma[2] ("Oma") and R v Baomate[3] ("Baomate") bear closest resemblance to this case.
    
29. In Oma, the accused was the younger brother of the deceased. The accused had been drinking that day. In the evening of that day, the accused came to the house where the deceased was and expressed his disappointment at the deceased's failure to attend a family meeting that had been arranged for the previous day. An argument then developed between them which led to a fight between the deceased and the accused. In the course of the fight, the accused stabbed the deceased in the stomach with a small knife. The deceased died from that injury later that night. The accused was initially charged with murder which was later changed to manslaughter. The accused then pleaded guilty to the manslaughter charge. Upon consideration of the circumstances of the case, the accused was sentenced to 4 ½ years' imprisonment.
    
30. In Baomate, the deceased had been drinking with others. The accused had asked the deceased for some of his home brew drinks but the deceased refused to give him any. The accused then punched the deceased in the mouth causing the deceased to fall to the ground. The accused then escaped to another house. While sitting with others at that house, the deceased arrived with a group of men and asked the accused to come out from the house. He did and a fight then broke out between the accused and the deceased and two others. During the fight, the deceased kicked the accused in his private parts. At some stage during the fight, the deceased also fell. When the deceased got up, he began to walk away when the accused got hold of a stone and struck the deceased on the head. The deceased later died that day as a result of the injury received from that blow. After consideration of the aggravating and mitigating features of the case, the accused was sentenced to 4 years imprisonment.
    

Sentence:

31. In this case, there was no intention on the part of the accused to take the life of the deceased. Furthermore, they were close relatives and, as in many of the homicide cases coming before this court, alcohol had contributed much to what has happened in this case.
    
32. Having regard to all that I have said above and in the light of the similarity between this case and the Oma and Baomate cases, it is my view that the accused should be given a sentence similar to those given in those two cases.
    
33. In Oma, the sentence was 4 ½ years. In Baomate, it was 4 years. In this case, I sentence the accused to 4 years imprisonment.
    
34. The sentence is to be back dated to the time when the accused was taken into custody.
    

THE COURT

_______________________
JAMES APANIAI
PUISNE JUDGE

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^[1] [2012] SBHC 112; HCSI-CRC 227 of 2010 at para. 12.
^[2] HCSI-CRC 1440 of 2010.
^[3] HCSI-CRC 227 of 2010.