Regina v Baega [2012] SBHC 94; HCSI-CRC 379 of 2010 (22 August 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 379 of 2010

R

V

KONA BAEGA & NELSON RIMANU

Date of Hearing: 14 & 15 August 2012
Date of Sentence: 22 August 2012

Mr H Kausimae for the Crown
Mr D O'Shea for Baega and Mr A Tinoni for Rimanu

SENTENCE

PALLARAS J:

[1] The accused were originally charged with the offence of murder. The prosecution, however, have withdrawn the charge and substituted a charge of manslaughter in its place to which the accused have pleaded guilty.

[2] On the 9th June, 2010 and in the early hours of 10th June, 2010 the two accused had attended a wedding celebration at Niurofe Village, Northeast Malaita. Both had consumed alcohol and were affected by the amount of home brew known as kwaso, they had consumed.

[3] The deceased had attended the wedding but had left the reception earlier that night.

[4] A fight broke out between two gangs of youths at the wedding. The fight continued on as the gangs moved away from the wedding reception area, along a road that went past the house of the deceased. They continued to throw rocks and stones at each other.

[5] The deceased and his father in law Walter Ramo'olofia, awakened by the commotion, came out of their house and tried to stop the youths from fighting each other. He walked towards BAEGA and told him to run away from the others. Only a short distance separated the two when BAEGA threw a rock at the deceased, striking him in the face. The deceased fell to the ground.

[6] As the deceased was still laying on the ground, the accused RIMANU then struck him across the chest with a chain. Another youth was then seen to kick the deceased while he was on the ground.

[7] Walter Ramo'olofia seeing what had happened to the deceased, went to his aid telling the youths to leave. BAEGA then picked up another rock, threw it at Walter Ramo'olofia, striking him in the head. The youths dispersed and the two accused ran away.

[8] The injuries caused to the deceased were critical. He quickly found that he had difficulty in talking and was taken to a local clinic by his wife. By this time he could not talk at all. At the clinic, he received stitches for a gash on his left eyebrow and sufficient penicillin for five days and, regrettably, allowed to return home.

[9] With his condition worsening, the following day the deceased was brought back to the clinic by his wife. By this stage the deceased could not eat, drink, talk or walk unaided. The nurse changed his medication and belatedly observed that the deceased needed to be transferred to hospital. Unfortunately no contact was able to be made with any hospital and so the deceased was admitted into the clinic until contact could be made.

[10] Tragically, the deceased died the next day before any hospital was able to be contacted.

[11] The autopsy revealed that the deceased had injuries to the area of both eyes and eyebrows, injuries to his right forearm, upper abdomen and both elbows. His skull was fractured on the right side of the frontal area and the bones posterior to the eyes were fractured. His brain was swollen with haemorrhages on both sides of the frontal bone of the skull between the skull and the dura. Another haemorrhage was located on the anterior aspect of the brain between the dura and the brain.

[12] The cause of death was nominated as the "left subdural haemorrhage as a result of blunt trauma to the head".

[13] I am informed that compensation has been paid to the deceased's family and that there has been a degree of reconciliation. At the time of the killing, both BAEGA and RIMANU were 16 years of age.

[14] The deceased was 30 years of age when he was killed. He was married with a wife and three young children under the age of five years.

[15] It is hard to imagine a more senseless, pointless and tragic killing than the death of this young man. His death has not only prematurely ended his life, but has irrevocably changed the life of his wife and three very young children. I have no doubt that it has also gravely affected the lives of a loving extended family. What exacerbates the despair that this futile and cruel act brings is that the deceased was trying to be the peacemaker, the Good Samaritan, he was trying to help these young men and in their alcohol fuelled arrogance and temper they killed him for it.

[16] Despite the abhorrent nature of this killing and the dire consequences that have resulted, there are significant features of mitigation.

[17] The first is that both accused have pleaded guilty to the charge. I accept that their pleas have been entered as recognition of their responsibility in the crime and as an indication of genuine remorse. I regard the reconciliation and the payment of compensation in the same context.

[18] Second, both accused were sixteen years of age at the time of the offence and are thereby both "young persons" for the purposes of the definition in section 2 of the Juvenile Offenders Act [Cap.4]. I have regard to the provisions of that Act and the special sentencing regime provided for young persons under its provisions.

[19] The tenor of the sentencing regime provided for young persons is that, other things being equal, they should not be sentenced to imprisonment unless none of the alternative dispositions outlined in section 16 of the Act would be an appropriate sentence. In this case, I am asked to utilise that section and release the accused into the care of a relative and friend, Mr Sam BAEGA, the brother of Kona and the uncle of RIMANU. Mr Sam BAEGA gave evidence before me and was an impressive witness.

[20] Third, both accused are of previous good character with neither of them having any previous convictions.

[21] However, there are also significant aggravating features.

[22] The deceased was an innocent victim who was trying to keep the peace and assist the two accused to get out of the trouble that they were in.

[23] His death impacts not only on his widowed wife but also upon his three children who, at the time of his killing, were all under five years of age. The family has lost a husband, a father and a provider.

[24] No doubt the consumption of alcohol has contributed to the violent conduct engaged in by the two accused. They showed a total lack of responsibility in their drinking particularly when their young age is considered.

[25] The accused each used weapons. One used rocks and the other a chain. It was put to me on behalf of Rimanu that his use of a chain as a weapon should not be regarded as an aggravating feature because the autopsy report did not indicate that it was the cause of death. I totally reject that submission. These youths were armed and acting together, assisting and encouraging each other by their presence and conduct towards the deceased. The use of the chain by Rimanu on the prostrate and helpless body of the deceased was in some senses an even more vicious and cowardly act than the throwing of the rock by Baega. The fact that this action may not have caused death does not resolve Rimanu of his joint responsibility with Baega for the killing and serves to underline his total lack of concern for the wellbeing of the deceased.

[26] I regard the fact that the accused were violent while in each other's company at night as a further feature of aggravation. The acts were deliberate and totally unprovoked.

[27] It can be seen then that there are many features of the case to put in the balance when coming to an appropriate sentence. The objective gravity of the case has to be considered with considerations of rehabilitation, youth and other factors of mitigation previously mentioned. It is often said, with good reason, that the assessment of the balance to be sought between objective gravity, mitigating circumstances and rehabilitative needs is not capable of precise arithmetical reasoning and is more akin to an art rather than a science.[1]

[28] A number of cases have been put to me by counsel which simply confirm why the sentencing range for manslaughter cases is so wide. Each case reflects not only its own individual factual matrix but also its own unique mix of aggravating and mitigating factors. It is not surprising then that sentences have and will continue to range from no imprisonment to the imposition of sentences of seven, eight or more years imprisonment.

[29] In my judgement and having regard to the sentencing principles set out in the Juvenile Offenders Act [Cap. 14] and its Schedule, a period of imprisonment is the only appropriate disposition in this case. Taking all of the aggravating factors into account an appropriate starting point is 6 ½ years imprisonment.

[30] Balancing this result with the features of mitigation discussed, I regard an appropriate sentence as being 5 years imprisonment.

Sentence and Orders of the Court:

1. Each accused is convicted of one count of manslaughter.
   
2. Each accused is sentenced to five years imprisonment.
   
3. The period spent in custody since the 19th June, 2010 is to be taken into account.
   
4. That on 18th December 2012 each accused is to be conditionally released into the care of Mr Sam Baega, aged 37.
   
5. The conditions of release are:
   
   • (i) That each accused commits no breach of the law and remains of good behaviour;
     
   • (ii) That each accused refrains from consuming any alcohol whatsoever during the period of this sentence, and
     
   • (iii) That each accused pay an amount equivalent to half of any income earned in whatsoever fashion to the wife of the deceased during the period of this sentence.
     
6. Should any of the conditions of release be breached by either of the accused, then that accused (in breach) is to be re-arrested and ordered to serve the balance of his sentence in prison.
   

THE COURT

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^[1] R v Tiko [2010] SBCA 7; CA-CRAC 8 of 2009 (26 March 2010)