Regina v Nimelie - Sentence [2012] SBHC 161; HCSI 43 of 2009 (17 July 2012)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 43 of 2009

REGINA

-V-

Barnabus Bolam Nimelie and John Bolam Vaike

JUDGEMENT: 14 June 2012
SENTENCE: 17 July 2012

R. Iomea for the Crown
P. Spence for the first Defendant;
S. Kalu for the second Defendant.

Palmer CJ.

1. The defendants have been each convicted of one count of uttering a written demand with menaces, contrary to section 294(1)(a) of the Penal Code; and two counts each of uttering a letter accusing of a crime with intent to gain money, contrary to section 294(1)(b) of the Penal Code.
   
2. I thank counsels for providing written materials in support of their submissions, which have been quite helpful in terms of assisting the court to reach an appropriate sentence in this case.
   
3. The circumstances of this case are distinguishable on the facts. The offences were precipitated by numerous preceding events that can be traced back it seems some twenty or so years to the killing of a chicken at Lipe Village. That chicken belonged to a member of the Namona family and was accidentally killed, it seems by a member of the Bolami family. This caused arguments and the use of abusive words to take place and whether it was resolved then or not but what is clear is that this incident seems to have been allowed to fester on between the families and drive a wedge between them. Over the years further incidents occurred which drove them further and further apart to the point where threats, violence and damage to property and injury to persons were being exchanged including the use of offensive language and swearing that simply aggravated the situation.
   
4. I take note of the fact that prior to the issue of the letter of 8 July 2001 which formed the substance of count 1 of the offences, a major altercation had taken place between the families in April of the same year in which members of the Bolami family, including close family members had been attacked, properties damaged and abusive or swearing words uttered.
   
5. I take note of the fact as well that the letter dated 8 July 2001 was not served on the complainants until about 9 October 2001, well after the promised dead line stipulated in that letter of 31st July 2001 had expired and if the contents of the letter were to be taken literally, as pointed out by Counsel for Vaike, the threats could be viewed as being stale or had lapsed and that nothing further had occurred in that period.
   
6. Having said that, it must be balanced with the glaring fact as well that the hatred, resentment and bitterness between the two groups had not dissipated. It was simmering in the background and was waiting for the right moment to blow up.
   
7. I take note of the fact as well that there were persons within the family groupings and others outside, including chiefs committees, tribal leaders and the Provincial Executive and Government that had an interest in having the dispute or disagreement resolved once and for all, who went to great lengths to try and bring the parties together to settle their differences.
   
8. It appears there were a number of chiefs hearings and decisions taken but not followed up or taken seriously by either family grouping and so did not achieve much.
   
9. I also bear in mind that the facts showed that no one party can really be blamed for escalating the tension and enmity between them; both were prepared to resort to intimidation, threats, violence and fighting as the means of resolving their differences.
   
10. The killing of Andrew Nieda a member of the Bolami family initially alleged to have been killed by a member of the Namona family simply aggravated the situation and made matters worse. His killing occurred at the height of tensions on 11 October 2001, shortly after the delivery of the letter of demand on 9 October 2001.
    
11. I accept on the evidence that the letter on receipt raised considerable fear, terror and apprehension on the part of the recipients and family members and that as a consequence sought to try and have the matter resolved amongst themselves.
    
12. The main mitigating factor raised in submission for both defendants has been the delay in the hearing of this case of some 7 years. The offences were committed in October 2001, some 11 years ago. Investigations commenced in 2004 and the defendants eventually charged in 2006.
    
13. It seems that a trial was also commenced in the Magistrates' Court at Lata in 2007, but then vacated on jurisdictional grounds. The case was committed to the High Court for trial on 7 October 2008 and an information filed on 12 February 2009.
    
14. I accept submissions of Counsels for the defendants that extraordinary delay had occurred in the hearing of this case and take that into account in this sentence. I note that the extraordinary delay in the hearing of this case is not without cost to the defendants.
    
15. Mr. Vaike for instance since being released on bail after spending 6 months and 10 days in custody has not been able to return to his home in Santa Cruz to see his family, maintain his home and property and continue with normal life. He has not been able to find work and so struggles to support his children. Two of his children have had to leave school as a consequence. His wife passed away during the period but he was not able to return to his home village because of his bail conditions. He has suffered stress and financial difficulties. He rents a garden plot at Henderson in order to feed himself.
    
16. Mr. Nimelie also had not returned to his home village in compliance with the bail conditions. He had not visited his relatives and his properties left unmaintained for that period. He initially instructed a private lawyer to assist him but withdrew when he exhausted his funds. Two of his daughters have had to withdraw from school because of financial difficulties.
    
17. I bear in mind that the effect of having this court case hanging over them for the past 7 or so years had been quite burdensome and onerous and had taken its toll on them and their families.
    
18. I take into account that both are first offenders and have not been in trouble with the courts previously. They are both mature men and continue to play a major part in their community as elders and leaders and well respected. I accept they have much to contribute to the community but especially towards having this matter resolved having come through this trial process and come to the realisation of the importance of reconciliation. They have not re-offended and their prospects of rehabilitation good.
    
19. I take into account the references that have been provided in support of their personal circumstances and contribution towards society. They have sought to be useful members in their community while waiting their time on bail.
    
20. I have had the opportunity to consider comparative cases provided and thank Counsels for their assistance. Each differs on the facts. Most of the cases referred to in the submissions of Counsels were on a similar offence of demanding property or things with menaces contrary to section 295 which carried a maximum prison sentence of five years. These offences carry a much heavier penalty of life imprisonment. The reason it would seem is that a demand in writing with menaces without reasonable or probable cause can have greater or destructive effect on the mind of a victim and may have quite serious consequences on such a person. This runs counter to the right of an individual to live and enjoy a free and peaceful life without fear of threats of intimidation, harassment and violence. In any civilised society, this type of behaviour is frowned against and condemned.
    
21. I take into account as well the timing of the offences, which occurred at a particularly low time in the country when the rule of law was at its lowest and law and order fragile. The climate was one of fear, harassment, intimidation and violence. Guns were available in the community and these were often used to intimidate others with. This type of behaviour therefore on one hand was not unusual. On the other hand it can be said as well that the defendants took advantage of the situation to make the demand and therefore should be viewed as an aggravating factor.
    
22. I note that while they have been convicted of 3 counts, the circumstances seem to indicate that these arose from basically the same background. To that extent they can be considered together and the totality principle taken into account in the sentence to be imposed.
    
23. I note that no physical form of violence, damage or injury accompanied the commission of the offences.
    
24. I note that both have spent a minimum of six months on pre-trial custody which I take into account in passing sentence.
    
25. Taking everything into account I impose sentence as follows:
    

Count 1: Impose sentence of 18 months imprisonment;

Count 3: Impose sentence of 6 months imprisonment, concurrent;

Count 4: Impose sentence of 6 months imprisonment, concurrent.

Having regard to the peculiar circumstances of this case I am satisfied that an order for a partial suspension of the sentence should be made. I order that 6 months of the sentence to be served and the balance to be suspended for 12 months with effect from today. Should you re-offend and are brought back to court you may be ordered to serve the remainder of your sentence.

Having served six months in pre-trial custody I am satisfied you can be released at the rising of the court.

I would advise that both of you should seek to have this long outstanding dispute resolved quickly and finally so that both families can resume normal relationships with one another and continue to co-exist peacefully and harmoniously again in the community instead of in acrimonious mistrust and enmity.

Orders of the Court:

Count 1: Enter conviction and impose sentence of 18 months imprisonment;

Count 3: Enter conviction and impose sentence of 6 months imprisonment, concurrent;

Count 4: Enter conviction and impose sentence of 6 months imprisonment, concurrent.

Count 5: Order partial suspension of the sentence as follows:

- six months imprisonment to be served;

- 12 months to be suspended for 1 year herewith;

- order release of the defendants at the rising of the Court.

The Court.