R v Isa [2014] SBHC 146; HCSI-CRC 407 of 2008 (17 October 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J
Criminal Case Number 407 of 2008

R

V

GEDILY ISA

Coram: PALLARAS J
Crown: Ms. N. Kesaka
Defence: Mr. A. Tinoni
Sentence Delivered: 17 October, 2014

SENTENCE

1. The prisoner has pleaded guilty to one count of attempted murder contrary to s.215 of the Penal Code [Cap. 26].

2. The offence was committed on 27th May 2003 at Vasavolavola village, Weathercoast, Guadalcanal in the early hours of the morning.

3. The prisoner and several other members of the militant GLF group, arrived at the victim's village in the early hours of the morning. Their intention was to punish individuals and the village generally for what they regarded as collaboration with the Joint Operation Group tasked to defeat the GLF.

4. The GLF destroyed much of the village by burning down many of the huts. During their attack on the village, the GLF fired many shots.

5. The victim, upon hearing the shots, left his hut and went to his father's hut. On the way, he heard someone shout out "shoot that evil man".

6. The prisoner, who was standing nearby and armed with a powerful rifle, aimed the rifle at the victim. Seeing this, the victim turned to run and as he did so, the prisoner fired his rifle at the victim hitting him in the arm.

7. The victim managed to escape into the bush but not before further shots were fired in his direction. After the attack, the victim was too frightened to return to his village and stayed away for several months.

8. The victim was later treated for his wound at Mbabanakira Clinic and the National Referral Hospital and survived. I have been informed that the victim is a manual labourer and still suffers significantly from the effects of the gunshot wound, particularly when doing heavy work.

9. On the prisoner's behalf it is submitted that this is not a particularly serious crime of its type because, it is said, the injury caused was not particularly serious.

10. It is also said that the prisoner has entered an early plea of guilty indicating his remorse.

11. I reject both of those submissions made in mitigation of the offence. The fact that the victim was not killed was a function of the poor shooting ability of the prisoner combined with the victim's timely and fortunate attempts to avoid being shot. Furthermore, this offence occurred over 11 years ago and it was not until the first day of trial in October, 2014, while the prisoner is currently serving a period of life imprisonment for murder, that he indicated that he would plead guilty to the charge. Although there has been a belated plea of guilty, which is to the credit of the prisoner, there has been no early plea of guilty at all.

12. I find this to be a particularly heinous offence indeed. There is no issue here of a sudden loss of temper or a fight that became heated and out of control. This is an unprovoked, cold-blooded shooting at a defenceless human being with a powerful weapon for no good reason whatsoever and is a crime of the most serious gravity. The prisoner intended to kill the victim and it is through nothing more than good luck that the victim is not dead. This terrifying experience has left its mark on the victim and as a manual labourer, he will struggle for the rest of his life with the constant reminder of that night of terror.

13. I have been referred to the decision of R v Ludawane [2010] SBHC 128 in which the Chief Justice cited with approval the decision of the English Court of Appeal in R v Sullivan [2005] 1 Cr. App. Reports.

14. Sullivan's case adopted three categories of seriousness in relation to such cases. They were:

1. Exceptionally high in seriousness, where the sentence would be one of life.
   
2. If the level of seriousness is particularly high, the starting point would be 30 years.
   

100. In cases which could be described as average, normal or unexceptional circumstances, sentences would start around 14-15 years.
     

15. While the Court of Appeal described these categories of seriousness as a guide and for the purpose of assisting sentencing courts, it is not always easy to differentiate between "particularly high" and "exceptionally high" seriousness. Furthermore, it is not easy to justify why a lesser penalty should be imposed on a man who intends to kill another, but only through lack of skill fails to achieve his purpose.

16. Looking at all of the facts of the offence, had the prisoner been convicted after trial, I would have had no hesitation in judging the circumstances to be "exceptionally high in seriousness" and would have sentenced him to life imprisonment. Due to the largely non-functional parole process operating in the Solomon Islands currently, once that sentence is imposed, a plea of guilty cannot be recognised and rewarded in a meaningful way. However, even although his plea of guilty came at the very last moment, the court must recognise and acknowledge the plea as an admission of guilt and convey what benefit is appropriate to the prisoner as a result of his plea. In the circumstances of this case, the only benefit that the prisoner can be given is to adopt a view of the seriousness of the offence that is more beneficial to him than the "exceptionally high" categorisation and then deduct an appropriate amount from that sentence to reflect the plea.

17. I have concluded that the appropriate starting point should be 30 years imprisonment. That sentence is reduced by 5 years to reflect the plea of guilty.

Order:
1. The prisoner is convicted of one count of attempted murder contrary to s.215 of the Penal Code [Cap. 26].

2. The prisoner is sentenced to imprisonment for 25 years.

3. This sentence is to be served concurrently with the sentence of life imprisonment currently being served but only to the extent that should the prisoner be released on parole in respect of the life sentence before the expiration of the present sentence, the remainder of the unserved portion of this present sentence of 25 years should be served before his release.

THE COURT