Regina v Penai - Sentence [2012] SBHC 46; HCSI-CRC 248 of 2009 (16 May 2012)

IN THE HIGH COURT OF SOLOMON IDALNDS.
(Faukona J).

Criminal Case No. 248 of 2009.

REGINA

-V-

PEN PENAI.

Date of Submissions: 9th May, 2012.
Date of Sentence: 16th May, 2012.

Mr R. Iomea for the Crown.
Mr. E Cade for the Accused.

SENTENCE.

Faukona J: The accused Ben Penai was convicted on 4th May, 2012, of manslaughter after a trial in relation to murder.

2. The Court found in evidence that on 4th, October 2008 the accused and his wife had a domestic argument. The argument escalated to some point where the accused chased his wife with a stick. The deceased who was the father in law of the accused intervene to quell the accused behaviour, or he would endanger his wife's life and a child as she was heavily pregnant.

3. Because he was already overwhelmed with anger, he diverted his anger to the deceased. There was a fight and a struggle between the two men. Eventually both fell to the ground. The accused then picked up a piece of timber and hit the head of the deceased causing brain haemorrhage and subsequently died of the blow.

4. Having convicted the accused for Manslaughter, the next thing required in the legal process is to determine an appropriate sentence to impose. By implicit there can be no doubt that a custodial sentence is eminent. The question is for how long? This question though simple to ask, is not that simple and easy to answer. The aggravating and mitigating features which form the basis of sentencing ought to be considered, weighed on the balance, and analytically assessed. Such task often label as art of ambition achieved from years of learning and experience. The fact that no two factual circumstances are the same makes it difficult to conclude an appropriated sentence. However, each case is determined upon its own factual circumstances.

Seriousness of the offence.

5. There is no argument that the offence of manslaughter is extremely serious. The unlawful action by the accused had resulted in the tragic loss of life and loss to the family of the deceased. The accused was the aggressor as the facts reveal.

6. He may not realise, that what he did to his father-in-law was an act of disrespect to the old and worst still his own father-in-law. It takes a man his heart and courage to do such an evil thing, by being responsible for his father in-law's death. In such circumstances by culture and respected norms consequences do follow. For instance, would a woman live with her husband who killed his father? Would there be peace and harmony prevails in the family. In Melanesian culture it would be really difficult for a family to live in harmony again. Quite significantly, the effect of such action does not only affect the family now, but down the line as well. Unless compensation and reconciliation are performed.

Prior Conviction.

7. The accused has one prior conviction. He was convicted on 7th August, 2006 for common assault. Correspondingly assault is violence, an offence of similar nature as this. This reflected that the accused is someone with attitude problem. In 2006 he was already a married man. It seemed his priorities were not put right. His family is not a priority concern at all. By repeating the same nature of offence does not speak well of him.

Remorse.

8. At trial the accused denies the offence. It would be critical if he admits. To avoid being hypocrite, he agrees that there is no remorse shown. Now he feels sorry that his father-in-law has passed away, and that he was involved in his death. He also accepts that no compensation has yet paid to reconcile the families together. There is no plan mention in Court that this will materialise in the future. In R v Asuana[1] Ward CJ stated that custom compensation was always been regarded as important for restoring peace and harmony in the communities. And the Courts should give credit for such payment in assessing the sentence. No such compensation was paid or ever plan, also see R v Frank Kyio[2].

Personal and general deterrence.

9. Personal and general deterrence has always been part and partial of sentencing principles. They play a role in formulating appropriate sentence for this offence. However, counsel for the accused submits that these sentencing principles are of only low to moderate significance in this case. His basic reason is that it was not reasonably foreseeable to the accused, that he could have known that his act of threatening and chasing his wife while armed with a stick would result in death. He continues that what is not foreseeable cannot be deterred.

10. Technically that may be true; however, foreseeability is another element that substitutes the element of intent in certain circumstances.

Once proof would also reduce a charge, for instance in a case of a murder.

11. In this case the Court has found that the action of the accused was in a spur of a moment. Would he not foresee that by picking up a piece of timber and hit the accused with is not an act foreseeable that might cause grievous bodily harm or death.

13. The piece of timber used is a lethal weapon though distinguishes from an axe or knife. The deterrent part here is resorting to such weapon and lashes out at another, is an action which is foreseeable.

14. I think it is almost significant that specific and general deterrence has to play a role here. The Community deplore such evil action. The Courts are to ensure that the arms of law apply fully to such behaviour in order to maintain peaceful coexistence of all people living in Solomon Islands. A formulated sentence must reflect community protection and ensure such offending must not be repeated and is intolerable.

Mitigating Features.

Delay.

15. Counsel for the accused submits that there is delay in this case. That delay is an accepted and substantial mitigating factor. In this case the offence was committed on 4th October, 2008. The accused was arrested on 6th October 2008. The trial commenced on 27th February 2012. It is almost three years and five months elapsed before the trial commence. The Counsel refers to the case of Dalo v R[3] where there was a three years delay. The offence of unlawful wounding was committed on 2nd February, 1984 and first before the Court on 3rd February, 1987. On appeal 18 months imprisonment was reduced to twelve months. The reason is extreme delay which is totally unreasonable and unjust. The Court also said the penalty imposed so much later is often made all the harsher by the delay. Since the offence the Appellant has not committed any offence and has obtained a good job.

16. The Counsel is undoubtedly referring to a case decided almost twenty five years ago. That has to be distinguished from this age, time and generation. The crime rate twenty five years ago may be lower than today. I agree with the Counsel that no one is to be blamed for the delay. Three years and five months delay in my view, is a normal delay in the course of process considering the processes that involved; the amount of work indulged by the investigators, prosecutors and the Courts. In fact it is not extreme delay as it would have been so twenty five years ago. I find there is some delay but through normal course of things.

Personal Circumstances.

17. The accused Mr Ben Penai is a married man with three children. He does not know the exact of ages of his children. It seems the eldest may be seven and the youngest is three years of age. He supports his family by subsistence farming and fishing. To obtain cash for household goods he occasionally sells surplus fish or vegetables at a local market.

18. He was educated to class 6 and has never been in paid employment. He has spent seven hundred and twenty days in custody, and after he was convicted on 4th May, 2012 he was placed in custody until today. In fact total number of days spent in custody up until today is seven hundred and thirty seven days [737].

19. There is no submission to emphasize why personal mitigating features are one of significant in this case. The usual approach is expounded in R v Ligiau[4] above, that such personal features must have less effect on the sentence. There can be no denial that the accused is married with wife and children. He is still young and energetic anticipating a fruitful future for his family. He is the source and sole bread winner. I have mention earlier; indeed the accused has some attitude problem. If he considers his family as priority then he would have thought twice before doing what he did. This offence is his second under the same category of violence. Worst still he could not control his anger against his father-in-law. He allowed himself to be controlled by his overwhelming anger. Subsequently he confronted the law for his own actions. And that path perhaps is the answer. At the end of the journey, he may realise what he did was wrong, and reform his life thereafter, and learn from his past mistakes. That is the effect that this sentence is aimed at achieving.

Sentencing tariff.

20. There are numerous case authorities cited by both Counsels which provide guidelines in considering the appropriate tariff. There are thirty six cases in all; nine are common to both lists.

21. From submissions and the list of authorities, the charge of manslaughter attracts sentences of between two and seven years imprisonment, with the occasional case attracting a penalty heavier than that.

22. That death by blow where no weapon is involved generally tends to attract sentences of two to three years. Attacks with potential weapons such as knives tend to attract sentences between four and seven years, although some attract sentences which significantly below that; for instance R v Allen Bobby, a knife and a chisel was used to stab the deceased. Both accused aged 18 and 19 years who had paid compensation were sentenced to three years imprisonment for manslaughter. In R v martin Talu a screw driver was used, three years imprisonment.

23. Counsel for the accused submits that the criminality of this offence lies between the level of seriousness of the blow without a weapon, and a blow with a potential lethal weapon such as knife.

24. That may be true, depending on individual analysis of various tariffs available in different circumstances. However, apart from the Counsels observations, other features also play significant roles. Features as pleas and remorse, issue of compensation and reconciliation and prior good character. The accused has none of those features going his way. He only relies on delay and personal circumstances which I have dealt with succinctly above. I have respected the Counsel's version of delay which is notably is ineffective in this case.

25. In the thirty six authorities cited, seventeen of them have a clear indication of plea of guilty, ten convicted after trial, the rest there are no mention of any plea or is not indicated in the list.

26. If weapon used is the major determinant of an appropriate sentence, then the piece of timber with sharp four edges is not lethal as a knife so as not to attract serious sentence, then that in my view is a wrong approach. Weapon is defined in S.84 (6) of the Penal Code to mean any article or instrument capable of causing injury to any person without restricting the generality, shall include any knife, bush knife, club, firearm, or explosive; the list is not exhaustive. The word lethal in Longman Dictionary means having power of causing death. If a piece of timber weighing two kilogram capable of causing death when necessary force is applied to thrush then that piece of timber is lethal weapon, equally the same as any knife or axe. Rather than basing on the lethality of a weapon alone, the level of aggressiveness is also a determinant factor. In this case the deceased also sustained three other injuries as in the medical report.

27. Having considered the aggravating and the mitigating factors, I decided that the most appropriate sentence that I consider suit the circumstances of this case is a 6½ imprisonment.

Order.

1. Accused to serve 6½ years imprisonment.

2. 737 days spent in custody be deducted from the sentence. Accused to serve 4years, 5 months and three weeks.

The Court.

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^[1] [1990] SBHC 57.
^[2] HCSI-CRAC 259 of 2004.
^[3] [1987] SBHC 15.
^[4] Ibid 1.