Regina v Pati [2013] SBHC 34; HCSI-CRC 288 of 2011 (4 April 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

At Auki
Criminal Jurisdiction
Criminal Case No. 288 of 2011

BETWEEN:

REGINA

V

SIMON PATI

Coram: Pallaras J
Crown: Mr A. Aulanga & Mr J. Naigulevu
Defence : Mr A. Tinoni & Mr S. Valenitabua

Hearing Dates : 18 – 19 March 2013
Verdict : 21 March 2013
Sentence : 4 April 2013

SENTENCE

1. On 21 March the prisoner was convicted of one count of murder contrary to section 200 of the Penal Code. That section provides that the mandatory punishment upon conviction for this offence is life imprisonment.
   
2. In this case the Defence have asked that I impose a minimum period of imprisonment to be served by the prisoner before being eligible for release on licence. The Prosecution support the defence application submitting that –
   

".... the circumstances in the present case make it an appropriate one in which to impose a minimum sentence."[1]

3. Despite this submission by the Crown, I am of the view that the law is clear. It does not permit the imposition of a sentence upon a conviction for murder other than a sentence of life imprisonment. However, what is arguable is whether I have the power to recommend that a minimum sentence be served before the prisoner is eligible to be considered for an earlier release. I will take the parties' submissions hereafter as recommending rather than ordering a course of action.
   
4. It is suggested by both parties that support for the proposition that I have a discretion to recommend a minimum term is to be found in the decision of R v Ludawane [2010] SBHC 128; HCSI – CRC 233 of 2008 (5 October 2010).
   
5. In that case, the learned Chief Justice said of the Correctional Services Act 2007 –
   

"This new legislation has opened up a doorway of discretion for a court to consider whether to specify a minimum period to be served in a sentence of life or not. The argument now is that when imposing a mandatory sentence of life imprisonment on a conviction for murder, the court should where appropriate consider stating what in its view should be the minimum period to be served in custody to meet the requirements of retribution and general deterrence before an offender is eligible for consideration for release on licence."[2]

6. The learned Chief Justice then made it clear that in his view the appropriateness of whether or not to pass such a sentence remained a completely discretionary matter for the Court to determine.
   
7. In that case His Honour did recommend a minimum term taking into account the Accused's positive demonstration of remorse as shown through his plea of guilty, his cooperation with the police and other authorities, his previous good character, an absence of premeditation, his finding that the Accused did not intend to kill but rather to cause grievous bodily harm and the fact that the death did not result from one act but was caused by the cumulative effect of a number of assaults over a period of time.
   
8. Referring to the decision of the English Court of Appeal in R v Sullivan (Melvin Terrence)[3], the learned Chief Justice described how that Court noted three starting points for assessing the seriousness of the murder committed; if it was exceptionally high in seriousness, then the appropriate sentence would be one for life. If the level of seriousness is categorised as particularly high then the starting point would be 30 years. In the average, normal or unexceptional circumstances, it would be around 14-15 years.
   
9. In the case of Ludawane, the learned Chief Justice considered the murder to be in the least serious of categories and that a consideration of all of the particular features of that case made it one in which it was appropriate to impose a minimum term. While doing this, His Honour made it clear that his comments were recommendations only for the assistance of the Parole Board and Minister when exercising their discretion.
   
10. A reading of the Correctional Services Act 2007 ("the Act") makes it clear that the Minister may establish a Parole Board. If established, that Parole Board is to make recommendations to the Minister relating to –
    

"the release on licence of any person serving a sentence, including a sentence for life, or to order the return to the correctional centre of any person who has been released on licence";[4]

11. It is clear that the legislation anticipates situations arising where a person sentenced to life imprisonment may not serve his full sentence. While "on licence" is not specifically defined in the Act, there seems no good reason to limit its meaning (or even to include in its meaning) release on probation. The prerogative of mercy still resides in the Governor General who may upon petition from a prisoner and with the advice of the Minister, exercise his prerogative in the prisoner's favour.
    
12. So while no Parole Board had in fact been established at the time of the decision in Ludawane and, I am told by both counsel, that a Parole Board is not currently in existence, however, there still exists the possibility of petitioning the Governor General. For my part, while I accept that this Court has the discretionary power to recommend a minimum term, I can see no utility in suggesting a minimum term the successful conclusion of which is to be the subject of recommendations by a body (the Parole Board) that does not exist. The Governor General on the other hand does exist and retains the prerogative of mercy and because a prisoner may make application for mercy to him, there is therefore utility in nominating (in appropriate cases only) a recommended minimum term of imprisonment.
    
13. The Correctional Services Regulations 2008 (the "Regulations") in part provide as follows –
    

198. Upon the recommendation of the Commissioner or the Parole Board, a convicted prisoner may be granted remission of the whole or any part of a sentence at the discretion of the Minister. In exercising the discretion, the Minister may consider the age, good conduct, mental or physical health and any other special circumstances of the prisoner.

201. The Minister may order the release of a prisoner at any time, conditionally or unconditionally, and may revoke at any time any early release order.

205. Notwithstanding any other provision in these regulations, the Minister may only release a prisoner serving a life sentence or detention at Her Majesty's pleasure after consultation with the Chief Justice and trial judge. If the trial judge is unavailable, consultation with the Chief Justice is sufficient.

208. When making inquiries and providing the report and recommendations, the Parole Board must consider the following matters:

1. the prisoner's criminal history and likelihood of re- offending;
   
2. the nature and circumstances of the offence and any sentencing remarks made by the trial judge;
   

100. the conduct and character displayed by the prisoner when in custody;
     

4. the physical and mental health of the prisoner;
   
5. the prisoner's family and community contacts, employment prospects and the likelihood of successful re-integration;
   
6. the attitude of any victim and the nature or prospects of reconciliation; and
   
7. any special circumstances that apply to the prisoner.
   

14. These Regulations clearly support the scheme of the Act in anticipating the early release of prisoners serving a life term. However, they also anticipate the establishment of a Parole Board together with consultation between the Minister and the trial judge or the Chief Justice. Regulation 208 provides that the Parole Board must include in its considerations any sentencing remarks made by the trial judge.
    
15. Even although this mechanism has not been established, it is possible that if and when it is established, the authorities will be informed by the attitude of the trial judge as expressed in the sentencing remarks. In anticipation of that occurring and despite the current lack of utility in doing so, I make the following remarks which I stress, as did the learned Chief Justice in his judgement in Ludawane, are recommendations only for the assistance of the Parole Board (should it eventuate) and the Minister.
    
16. With the greatest of respect to the dicta of the learned Chief Justice in Ludawane, as too for the judgment of their Lordships in Sullivan, while some murders can be said to be more horrific or involve more cruelty or violence than others, I do not find it helpful to utilise a three tier system of criminality in assessing starting points for sentences for murder. I say this because I find it difficult to categorise a murder as "average, normal or unexceptional". While the conduct of the murderer may not be uncommon, this does not, in my view, make it average or normal.
    
17. In the present case, unlike in the case of Ludawane, the murder did have an element of preplanning, at least in the sense that the prisoner must have contemplated the possibility that someone would be grievously injured or killed when he embarked upon the mission to the village with his brother and two other men.
    
18. Furthermore, there could be no suggestion that the prisoner's actions were anything other than deliberate when he threw a large rock at the head of the deceased when only a short distance from him. There was no offer to plead guilty either prior to or during the trial and the prisoner gave evidence contesting the allegations.
    
19. Given the findings of fact that I have made in my verdict, the prisoner was in a position to retreat without committing any further violence and his brother was never in real danger of being killed or suffering grievous bodily harm. These features of the case suggest to me that this might not be an appropriate matter to consider recommending a minimum term.
    
20. However, the prisoner is now still only 19-20 years of age. He is a young man who, prior to this offence, was previously of good character. On the evidence, it is clear that the main protagonist was his brother and that the prisoner played a slightly lesser, although no less significant role in the dispute. These features of the case, most significantly his youth, suggest that recommending a minimum term may be appropriate.
    
21. In considering all of the features of aggravation and mitigation holistically, I have come to the view that on balance the community's expectations that punishment and deterrence be met by the sentence can be satisfied notwithstanding an acknowledgment that such a young offender must, if possible, be given the opportunity to rehabilitate himself, after serving an appropriate term of imprisonment.
    
22. If the day arrives when the Parole Board is re-established and in due course considers this man's sentence or the prisoner petitions the Governor General for mercy, then due to the seriousness of this offence and the terrible consequences of the offending to the deceased and his family, my recommendations are that a minimum of 25 years imprisonment be served before the sentence is reconsidered.
    
23. While I have been prepared to accede to the application of the Defence in this case, supported as it was by the Prosecution, this judgment is not to be seen as a green light for automatic applications to recommend minimum sentences in other murder cases. My decision is based on the particular circumstances of this case only and as stated above, such applications may well be said to be premature pending the establishment of a Parole Board in this country.
    
24. I order that the prisoner be sentenced to life imprisonment.
    

THE COURT

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^[1] Crown’s Sentencing Submissions at page 2.
^[2] At page 128.
^[3] [2005] 1 Cr. Appellant. R. (S.) 67
^[4] Correctional Services Act 2007, section 73(5)(a)