Regina v Gere [2013] SBHC 19; HCSI-CRC 8 of 2008 (8 March 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 08 of 2008

REGINA

v

JOSEPH GERE

Hearing Date: 5 March 2013
Sentence Delivered: 8 March 2013

Coram: Pallaras, J.
Crown: Ms. F. Taeburi & Ms Driu
Defence: Mr. D. Hou

Sentence:
(Pallaras J)

1. The Accused was originally charged on Information with one count of murder contrary to section 200 of the Penal Code. An amended Information was filed by the Director of Public Prosecutions alleging one count of manslaughter contrary to section 199 of the Penal Code and one count of unlawful wounding contrary to section 229 of the Penal Code.

2. On Sunday, 16 September 2007 at around 7 am, the Accused was at the Twin Tower nightclub. For reasons which remain unclear, a fight broke out between the Accused and a group of young men. The deceased and the injured person were part of this group.

3. Finding himself greatly outnumbered and being pursued by the group of young men, the Accused ran from the nightclub. He was caught by one of his pursuers (V1) who continued the fight with the Accused. The Accused then used a knife that he had brought to the nightclub to stab V1 in the chest. The knife wound cut through the anterior chest wall muscles and into the thoracic cavity. In surgery, his chest was drained and the wound was sutured. Eight days after his admission into hospital, V1 was discharged.

4. After stabbing V1, the Accused continued to run from the others in the group. He was pursued and caught by the deceased (V2) who continued to fight with him. V2 was attempting to kick the Accused when the latter stabbed V2 in the right thigh. As a result of the wounding, the major blood vessels, the femoral artery and vein, were cut. In the opinion of the pathologist, V2 died as a result of hypovolemic shock caused by the haemorrhaging from the wound. The loss of blood and low perfusion of blood in the tissue led to hypoxia and multiple organ failure in the body. He was an adult male in his late twenties.

5. Later on the day of the incident, the Accused was apprehended at his home. He was interviewed under caution by the police and admitted stabbing the two victims. He was cooperative with the police during their investigation.

6. The basis of the Crown case for manslaughter was that by virtue of the intentional and unlawful act of stabbing V2, he had caused his death. It was ultimately submitted by the Crown that the Accused while justified in causing some harm, caused harm in excess of what he was justified in causing while in fear of immediate death or grievous bodily harm so as to deprive him of the power of self-control (section 204 of the Penal Code refers).

7. Having some doubts as to whether the circumstances of the case established an "unlawful" act in the context of self-defence, I confirmed with the defence that they accepted that the harm caused was excessive and that the stabbing was "unlawful" in the context of self-defence being raised.

8. The defence confirmed that this was their position and that the Accused would plead guilty to both counts on that basis.

9. In sentencing submissions, the Crown indicated that the possession of the knife by the Accused prior to going to the night club and his later use of it on two occasions against V1 and V2, constituted an aggravating feature of the case. I accept that the possession and use of the weapon was an aggravating feature.

10. In mitigation, it was put on behalf of the Accused that –

• he was a person of previous good character and he had not offended in any way since the incident;
  
• he was 22 years of age at the time of the offending and was now 28 years old; he is a married man with two small children who depend upon him for support;
  
• he conveyed, through his counsel, his apologies to the family of the deceased and assures the Court that he is remorseful and will never reoffend;
  
• the offences were unpremeditated and committed on the spur of the moment at a time when the Accused himself was in fear of serious injury;
  
• he had been open and cooperative with the police and had offered to plead guilty to manslaughter on 25 June 2012, but the offer was rejected by the Director of Public Prosecutions;
  
• at no stage was the Accused the aggressor and he was trying to escape from the other group of men;
  
• there has been a delay of 5 ½ years since he was arrested and
  
• he no longer drinks or goes to night clubs.
  

11. Both counsel provided authorities in relation to the sentencing range in cases of manslaughter in Solomon Islands. This simply served to affirm yet again that the offence of manslaughter takes on a multitude of forms and that there is little utility in seeking to extract a tariff sentence for the offence when the circumstances of its commission have unlimited variations.

12. The one common feature that is present in all manslaughter cases however, is that a human life has been lost. This remains the essential criminality of the offence in all of its various manifestations. Our legislators have identified the seriousness of this consequence of the offence by providing for a maximum penalty of life imprisonment. Undoubtedly, this reflects the sanctity and preciousness of human life and any punishment imposed must not only reflect this fact but also the legitimate expectations of the community that the courts will uphold and recognise this principle.

13. As stated above, the Defence have agreed with the Crown's proposition that the amount of force used was excessive in relation to both woundings. That must have been a decision made after considerable reflection and consideration and is reflected in the two unequivocal pleas of guilty entered by the Accused.

14. Yet the Agreed Facts tendered by the Crown and signed by both parties tends to suggest a version more consistent with self-defence as a complete offence. Nevertheless, I am very conscious of the fact that I have not seen or heard any of the witnesses to the offence including the Accused. The parties on the other hand are in possession of all of the relevant material and, I repeat, the Accused on advice and with the benefit of representation by experienced counsel has admitted the use of excessive force. It was after receiving the assurance of Mr Hou for the accused that the pleas were unequivocal and that the admissions were properly made that I accepted the pleas of guilty.

15. These offences, particularly the offence of manslaughter are very serious offences and in my judgment, call for custodial sentences. I assess the starting point by reference to the seriousness of the offending including of course the resulting loss of a human life. In the circumstances of this case and the particular factual matrix that surrounds it, I assess the appropriate starting point in relation to the count of manslaughter to be seven years imprisonment. I emphasise that this assessment is made solely on the unusual facts of this case and is not meant to suggest a generic starting point for the offence of manslaughter.

16. While I have indicated that I accept the Crown's submission that the use of the knife was an aggravating circumstance of this offending, there is much to be said in mitigation for the Accused. I have outlined above the submissions made on behalf of the Accused which I accept and take into account in this sentencing process.

17. The Accused is to be given credit for his plea of guilty which was offered but rejected by the Director of Public Prosecutions some time ago. For some reason which is not at all clear on the papers, the charge was determined to be murder and that was the offence which the Director was determined to proceed upon. Yet precisely the same offer to plead to manslaughter is now accepted a year after it was first made and rejected.

18. Another very disturbing matter which concerns me is that this case was brought to Court five and half years after the Accused was arrested. Absolutely no explanation for this unseemly delay has been offered by the Crown and I am almost compelled to conclude that it is as a result of negligence or incompetence.

19. It is simply unacceptable that the sword of Damocles should be left dangling over the head of an accused person at the whim of prosecuting authorities for year after year. A system that delivers that sort of result to its participants will ever struggle to deliver to them the justice that they are entitled to receive.

20. Assessing as I have the starting point to be a sentence of imprisonment for seven years, I deduct two years for the guilty pleas, one year for the other factors of mitigation referred to and matters personal to the Accused, and one year for the unconscionable delay by the Prosecution in bringing this matter before the courts.

21. As a result, on the count of manslaughter, the Accused is sentenced to imprisonment for a period of three years. In respect of the count of unlawful wounding, the Accused is sentenced to 18 months imprisonment, such sentence to be served concurrently with the sentence being served in respect of the count of manslaughter.

Orders:

1. The Accused is convicted of one count of manslaughter (Count 1) and one count of unlawful wounding (Count 2).
   
2. In respect of Count 1, the Accused is sentenced to 3 years of imprisonment.
   
3. In respect of Count 2, the Accused is sentenced to 18 months imprisonment.
   
4. The sentences imposed for Count 1 and Count 2 are to be served concurrently.
   
5. Time spent in custody of 2 months and 18 days (a total of 79 days) is to be taken into account.
   

6. The sentences are to commence as from 5 March, 2013.

THE COURT