Regina v Maelisu'u [2013] SBHC 181; HCSI-CRC 75 of 2010 (25 November 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 75 of 2010

R

v

SAMUEL MAELISU'U

Coram: PALLARAS J
Crown: Mr A. Aulanga
Defence: Mr D. Lidimani
Hearing Dates: 4 November & 25 November 2013
Sentence Delivered: 25 November 2013

SENTENCE

1. On 4th November 2013, the prisoner pleaded guilty to one count of Manslaughter contrary to section 199(2) of the Penal Code [Cap. 26] ("the Code").
   

FACTS OF THE CASE

2. On 11th December 2004, Samuel Maelisu'u ("the prisoner") was driving a taxi between 11 p.m. and midnight. He drove towards Kilusakwalo main road near Auki in Malaita Province. He had one passenger on board his taxi.
   
3. The passenger described the prisoner as driving in a very fast manner and as being unsteady on the road. The prisoner was drinking alcohol while driving the taxi. It is conceded that he was severely affected by the alcohol he had been and was consuming.
   
4. As the prisoner turned into the road adjacent to the Kilusakwalo playing field, he hit two males who were sitting on the left edge of the road. One of the two males, Hardly Lagwai aged 29 years, was fatally injured. The other male, a 15 year old boy was injured but survived the impact.
   
5. Both victims were taken to Kilufi hospital where Mr Lagwai died soon thereafter.
   

THE CHRONOLOGY OF THE CASE

6. Although the police began their investigation into the accident on 12th December 2004, they did not charge the prisoner until almost 1 ½ years later on 29th May 2006. Furthermore, the police immediately released the prisoner on bail.
   
7. It then took another 1 ½ years for the prisoner to be committed at Auki Magistrate's Court, a short form preliminary inquiry being conducted on 7th November 2007.
   
8. It took another 2 years and 3 months (25th February 2010) for the committal brief to be sent from the Auki Magistrate's to the High Court and to the Office of the Director of Public Prosecutions.
   
9. It then took another year (8th March 2011) before the Director of Public Prosecutions filed an Information against the prisoner.
   
10. The matter was called on in the High Court on 28th October 2011 and on the 10th February 2012. The prisoner did not appear on either occasion.
    
11. On 27th February 2012, police at Auki served the prisoner with a Summons to Attend the High Court on 30th March 2012. On that day the prisoner again failed to attend and a Warrant for his arrest was issued. The Warrant was dated 12th April 2012 and was conveyed to the Crown.
    
12. The matter was listed before the High Court on 20th April 2012, 25th May 2012, 8th June 2012, 22nd July 2012, 10th August 2012, 31st August 2012, 26th October 2012, 7th December 2012, 1st February 2013 and 24th June 2013. On none of these occasions did the prisoner appear.
    
13. On 25th July 2013, police finally executed the Warrant and arrested the prisoner. This was 1 year and 3 months after the issue of the Warrant.
    
14. Between July and October of 2013, the matter was mentioned a further 7 times in the High Court. On the 25th October 2013, the prisoner was arraigned before me and pleaded guilty to one count of manslaughter. This was the 18th mention of the matter in the High Court.
    
15. It is hard to imagine a worse example of the breakdown of the criminal justice system than that which I have just related. The comprehensive failure by the police to carry out and see through a timely investigation into the death of a young man and the injuring of a young boy is simply disgraceful. Their failure to charge the prisoner until 1 ½ years after the incident and their failure to execute the Warrant of Arrest for almost the same period of time after the Warrant was issued, reveals either a total indolence or a breathtaking level of incompetence both at the operational level and, more worryingly, at the managerial and supervisory level of the police force. While it is of considerable concern, but hardly of surprise, no one within the police force has come forward to publicly apologise and explain this comprehensive failure. The community has a right to expect much better than this from the police. If this example is anything to judge by, Solomon Islands was not served well by an effective police force.
    
16. I am told that the committal brief was "discovered" at Auki Magistrate's Court on 25th February, 2010. It seems that for the 2 years and 3 months after the prisoner was committed, the brief was lost or had disappeared into a vacuum. It is impossible to adequately explain to family members of the deceased and of the injured person, how a publicly paid judicial administration at Auki can have so completely failed in their public duty to simply carry out the administrative job for which they are paid. Again, while it is of considerable concern but not surprising, no one within the Magistrate's Court administration at Auki or elsewhere has come forward to publicly apologise or explain who was asleep at their desk for almost 2 ½ years and why. If this example is anything to judge by, Solomon Islands was not served well by an effectively administered Magistracy.
    
17. The matter was first filed with the High Court on 6th March 2011. The Information then contained 8 separate counts. The case was first mentioned in Court on 28th October 2011, seven months after the filing of the Information. While this time gap is not unusual, it is far too long and discloses a need to improve process and performance. Between 28th October 2011 and 9th August 2013, there were no fewer than fourteen mentions of the case in the High Court – one in 2011, eleven in 2012 and three in 2013 up to 2nd August.
    
18. On not one of these occasions did the prisoner appear in Court as required. He had been served with a Summons and a Warrant of Arrest was issued. The Warrant remained un-executed by the police from March 2012 until July 2013.
    
19. There were four other occasions in which the matter was mentioned in the High Court in 2013 before it came before me on the 25th October, 2013. That took the number of times the case was mentioned to eighteen.
    
20. Incredibly, even after the expiration of nine years since the incident occurred, the Office of the Director of Public Prosecutions, in September 2013, withdrew seven of the eight counts on the Information and proceeded with one count only. While it is well understood that the choice of criminal charges is entirely a matter for the discretion of the Director, it seems scandalous that it took that Office 9 years to settle an Information which adequately represented the criminality of the offending.
    
21. This whole sorry saga has lessons for this Court as well. While case "mentions" are generally short proceedings held to monitor the progress of the case, they nevertheless take up the valuable time of a Justice of the High Court, use the public facility of a court-room and involve the time of at least two lawyers appearing in the case. Other costs are incurred by the presence of Correctional Service Officers and Interpreters, if required. When it is remembered that of the eighteen mentions, the prisoner did not appear and therefore little could be achieved at fourteen of them, and while it is clear that his absence cannot be attributed to any judicial action, there has been an enormous waste of public time and money. The onus is on this Court and its administrators to develop a system that does not waste public money in such a gross fashion and uses the time of judges, court and correctional staff and lawyers, far more efficiently.
    
22. The prisoner pleaded guilty before me on 25th October 2013 and confirmed his plea on 4th November 2013. On that day both counsel made sentencing submissions orally and in writing. Further submissions were adjourned to 25th November 2013.
    
23. The specific relevance to this case of the chronology outlined above is, of course, the impact that delay should have on the imposition of a just sentence. It was put to me by Prosecuting Counsel, with no complaint from Defence Counsel, that the maximum allowable discount for a delay in the process was a 30% reduction in the sentence. No authority was cited by either counsel for the figure of 30% being chosen.
    
24. There are occasions where delay in bringing a charge against a suspect or in bringing that suspect to trial is inevitable. To that extent, there is a degree of tolerance of delay permeating the criminal justice system and all practitioners who work within the system come to know and understand this.
    
25. However, this forbearance cannot be open ended - it must be moderated by the element of reasonableness. There is no doubt in my mind that the delay occasioned in this case was not reasonable. Indeed had this matter proceeded differently by the prisoner pleading not guilty and electing to go to trial, compelling arguments for a permanent stay might well be imagined.
    
26. In R v Lawrence [1982] AC 510; [1981] 1 All ER 974; 73 Cr App R 1 (HL) Lord Hailsham said (at 517; 975; 3):
    

My Lords, it is a truism to say that justice delayed is justice denied. But it is not merely the anxiety and uncertainty in the life of the accused, whether on bail or remand, which are affected. Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims, and juries who are correctly directed not to convict unless they are assured of the reliability of the evidence for the prosecution, necessarily tend to acquit as this becomes less precise, and sometimes less reliable. This may also affect defence witnesses on the opposite side.

27. The plea of the prisoner has largely averted these difficulties.
    
28. I have been referred to the case of R v Mana [2006] SBHC 145 at 2-3 wherein Palmer CJ applied the case of Runikera v Director of Public Prosecutions (Unreported Criminal Appeal Case N0. 14 of 1987) where Ward CJ said:
    

Delay generally affects the sentence in three ways. It increases the anxiety of the accused man who has it 'hanging over him' for that time. This will apply only from the time of discovery of the offence – any delay before that is entirely in the hands of the offender. The second factor relates to the plea because any person must realise that, the greater the delay, the more chance the prosecution will be unable to prove their case. Thus a plea of guilty entered with that knowledge becomes a strong mitigating factor. Finally it gives the offender a chance, denied to many accused, of showing that he really does intend to reform and stop offending.

29. In R v Todd [1982] 2 NSWLR 517 (Street CJ) said (at 519-520):
    

Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offence, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence: at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

30. In R v Miceli [1997] VSC 22; [1998] 4 VR 588; 139 FLR 309; 94 A Crim R 327 (CA) Tadgell J said (at 591; 312; 330):
    

Most particularly is the matter of delay between the commission of offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life.

31. In R v M W H [2001] VSCA 196 (1 November 2001) Callaway JA said (at [18]):
    

The prisoner's age at the time of sentencing may mean that he is less likely to re-offence. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to reoffend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.

32. These cases and others, point out that where substantial delay occurs, a sentencing court should be aware of the additional pressures on an accused, who over an extended period of time, does not know what his fate will be. An accused in that situation has generally pleaded guilty in the sure knowledge that the Prosecution may well have difficulty proving their case against him due to the passage of time. The prospect or the reality of rehabilitation over the period of time the prisoner has spent waiting for his sentence to be handed down becomes a significant feature of the case together with any evidence of genuine remorse for what he has done.
    
33. I have been referred to a number of cases by both Counsel. Mr Lidimani, for the prisoner referred to several cases from 1994 and later. These cases were of little direct value as they related to cases where death resulted from negligence sufficient to give rise to the charge of reckless or dangerous driving causing death. That offence carries with it a maximum penalty of imprisonment for five years.
    
34. The present case is concerned with the charge of manslaughter under the Penal Code [Cap. 26] and while some useful analogies may be drawn, the charge of manslaughter is usually reserved for the most serious of cases where death is also caused as a result of the manner in which a motor vehicle is driven. The qualitative difference in the criminality of the two offences has been recognised by the Legislature in providing a maximum penalty of imprisonment for life upon conviction for manslaughter. Nevertheless the similarity which can on occasions exist between the two offences does not mean that the sentences imposed for the two offences should be the same. It does however indicate that there should be some proportionality between the various sentences imposed.
    
35. Mr Aulanga, for the Prosecution, submits that, surprisingly, there has only been one locally decided case of manslaughter resulting from death as a result of the driving of a motor vehicle. That case was Campbell v R [1994] SBCA 3, a decision of a single judge of the Court of Appeal. The Appellant was originally received a sentence of five years imprisonment and this was reduced on appeal to a sentence of 3 ½ year's imprisonment. His Lordship Williams J.A. took 3 to 4 years as a sentencing starting point and imposed a sentence of 3 ½ years in the circumstances of that case. I do not consider that His Lordship was purporting to lay down a sentencing range for all cases of motor vehicle manslaughter but rather was expressing his view as to the result that a consideration of the proportionality of sentences passed between the two differing offences might produce in this case.
    
36. Of course, it is well settled that with due regard to any binding authority, each case must be determined upon its own unique facts and the particular features of aggravation and mitigation that attend it.
    
37. It has been submitted by the Prosecution that there are aggravating features to this offence. They are said to be that –
    
    1. The prisoner was not only drunk while he was driving but was still drinking while he was driving and at the time of the collision;
       
    2. The prisoner was driving at high speed and in a manner dangerous to the public before he struck the victims;
       
    3. That the victims were struck when they were on the side of the road rather than on the road itself;
       
    4. That he was in control of a dangerous weapon while drunk, namely the motor vehicle.
       
38. While I accept that factors 1) and 2) are features of aggravation, I place little weight on 3) and 4) as aggravating factors. Driving the motor vehicle is, in this case, part of the offence itself and as for being drunk, that is accounted for in 1). However, on any view this was a particularly dangerous and bad piece of driving. The prisoner blatantly flouted the road laws in almost every respect. He drove in a manner that showed a total and selfish disregard for the safety of others and because of his selfishness and stupidity, a young man has lost his life and a young boy has been injured.
    
39. In mitigation, it is said that the prisoner has entered an early plea, that he is remorseful and that he has no other criminal convictions. He is said to have demonstrated his remorse by undertaking a traditional reconciliation ceremony with the family of the deceased two months after the incident.
    
40. His personal circumstances are that he is now 38 years of age and was 29 years old at the time of the offence. He is married with five children and is the principal breadwinner for his family engaging in subsistence farming. He was educated to standard six at primary school. I am told that he is a youth leader within his community although I have neither read nor heard any specific evidence to this effect. It is said that he was cooperative with the police investigation although this is somewhat hard (although not impossible) to reconcile with his prolonged absences.
    
41. While not in any way wishing to minimise the injuries suffered by the young boy, the gravamen of this offence is of course the loss of an innocent young man's life. No amount of compensation or remorse can ever return him to his family and loved ones. What disturbs me most however, is the arrogance with which the offence was committed. Speeding at night while drunk and while drinking, with a passenger in the car is the height of selfishness and stupidity. He showed absolutely no thought for the safety or well-being of his fellow man on this night and, from the material, it appears that this disgraceful driving continued over some time. It was inevitable that a tragedy would occur and the two young men were the unfortunate and hapless victims of the prisoner's gross negligence and thoughtlessness.
    
42. I have taken careful note of the features of aggravation of this offending, the points raised in mitigation and the prisoner's personal circumstances. With the greatest of respect to His Lordship's views in Campbell, while I have some hesitation in agreeing with the method by which he arrived at his ultimate conclusion, even taking the starting point as 4 years, I judge that this aggravated conduct justifies a term of imprisonment of 6 years.
    
43. The sentence will be reduced by a total of 50%. 30% of the reduction is for the unreasonable delay that has occurred in finalising this case and the remaining 20% reduction is as a result of taking into account the plea of guilty and other factors of mitigation. That results in a sentence of 3 years imprisonment. This period is to be further reduced by the time already spent in custody.
    
44. A conviction for manslaughter by the driver of a motor vehicle is an offence included under the Schedule to the Traffic Act [Cap. 131] which, pursuant to Section 29 of that Act, compels the disqualification of the offender from holding or obtaining any driving licence under that Act. As I have indicated, I regard this episode of driving by the prisoner as a particularly bad example of driving and one which justifies a considerable period of disqualification. He is disqualified from holding or obtaining a driving licence for a period of ten years.
    

Orders of the Court

1. The prisoner is convicted of one count of Manslaughter contrary to Section 199(2) of the Penal Code [Cap. 26].
   
2. The prisoner is sentenced to imprisonment for 6 years.
   
3. The sentence is to be reduced by a total of 50% resulting in a sentence of imprisonment for 3 years.
   
4. Time already spent in custody is to be taken into account.
   
5. The prisoner will be disqualified from obtaining or holding a driving licence for a period of 10 years.
   

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THE COURT