Regina v Tofasi [2014] SBHC 165; HCSI-CRC 271 of 2011 (24 October 2014)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 271 of 2011

REGINA

V

ADAM GWARO TOFASI

F. Taeburi (Ms.) and J. Naigulevu, and A. Aulanga for the Crown
H. Kausimae for the Defendant.

Sentencing Remarks (24th October 2014).

Palmer CJ.

On 16th August 2013, I imposed a mandatory life sentence for the defendant following his conviction after trial as an aider and abettor in the killing of Billy Toito'ona on or about 16 May 2009 at Kaibia Heights. I then adjourned for submissions as to any sentencing remarks which the court may in its discretion make and place in the records of the court file. I now do so.

There is currently no legal requirement to impose any minimum sentence, after which the Minister is required to consider the exercise of his statutory power to grant parole. The decision to entertain or consider providing sentencing remarks arose from the enactment of the Correctional Services Act 2007, which set up a Parole Board ("the Board"), whose functions included making recommendations to the Minister in relation to the release on licence of any person serving a sentence, including a sentence for life. Under that legislation, persons convicted for murder are also eligible to be considered for parole by the Board and to be included in any recommendations for release on licence by the Minister responsible.

It is important to note that it is discretionary on the Court either on request, or of its own volition to provide sentencing remarks, which specify or indicate some minimum period to be served when considering questions of parole.

Regulation 205 of the Correctional Services Regulations 2008 provide that before the Minister releases any prisoner serving a life sentence he should consult the Chief Justice and the trial judge. Where the trial judge is unavailable the Minister is required to consult with the Chief Justice.

It is implicit in those provisions that at some point in time considerations for release on licence will be made. But before that power can be exercised, some consideration will need to be taken into account by the Board as to when and under what circumstances a recommendation can be made.

While this is an administrative or executive prerogative, it is to be expected that any Parole Board or the Minister when considering any recommendations regarding any prisoner for release on licence is nevertheless required to act reasonably and responsibly and not out of self or vested interest or mere political pressure and convenience. Normal requirements of transparency and accountability equally apply to such Board and the Minister.

Any sentencing remark therefore can be quite useful in providing guidance for the Board or Minister when considering parole for a prisoner and the process of consultation will ultimately allow such records to be brought to the attention of the Minister.

It is also not in issue that while there is a mandatory sentence of life imprisonment for murder, clear case authorities have established there are varying degrees of culpability and seriousness. I had made references to those varying degrees of gravity in R. v. Ludawane in which I quoted the case of R. v. Sullivan (Melvin Terence), which described three levels of seriousness in murder convictions. These are summarised as follows:

• Exceptionally high in seriousness where the sentence would be one of life.
• If the level of seriousness is particularly high, the starting point would be 30 years.
• In cases where the circumstances can be regarded as average, normal or unexceptional circumstances, sentences would be around 14-15 years.
  

I have had the opportunity to consider the submissions of Counsels in this matter and note as follows. I am satisfied the present case falls within the third category marked "average, normal or unexceptional circumstances", which would commence with a penalty of around 14 to 15 years. I commend Counsels for their insightful comments in assisting this court reach an appropriate figure which could be recommended as a minimum period to be noted in the records of this case.

I accept there was little or no pre-planning or premeditation in the commission of the offence. The Defendant was in his house and only came out to attend at the scene of the crime out of concern for his son, the principal offender. The altercation was between the deceased and the principal offender. He however became embroiled in their argument, which boiled over into a fight and from which he became involved and assisted the principal offender to hold the deceased down while the principal inflicted the fatal blows to the deceased.

I do bear in mind submissions of Crown Counsel, Mr. Aulanga that without his assistance the principal would not have easily been able to inflict the fatal stab wounds as effectively as he did. His assistance therefore did turn the fight around whereby the deceased was rendered powerless and helpless.

I accept submissions from his Counsel, Mr. Kausimae that this was a very unfortunate incident in which in the heat of the moment, tempers became frayed, got out of control with grave consequences.

I note alcohol had a part to play for both the deceased and the principal it appears were under the influence of alcohol when the incident happened and therefore would have been quite difficult to control as well.

I note in favour of the Defendant that he has no previous convictions, that this was an unfortunate event the consequences of which have been drastic not only for the deceased and his family and relatives but also for the Defendant and his family. As a result of the killing, he has had to relocate to his home village as it was no longer safe for him to remain in Kaibia. A lot of people have been adversely affected by the incident.

I note too that the incident can be said to have some element of provocation as well of self-defence, but which turned ugly with grave consequences for everyone.

I note from Counsel Kausimae's submissions that substantial compensation payments, which included 49 red shell money and $20,000.00 in cash being exchanged to appease the situation and facilitate some form of reconciliation between the parties.

I am satisfied prospects of rehabilitation are good and that there is nothing to suggest that the Defendant when eventually released will pose any threat to anyone in the community.

Taking and balancing everything into account I am satisfied a minimum period could fall within the twelve (12) year range in this case. I reiterate these are recommendations only, which may be of some assistance to the Board and Minister when exercising their discretion.

THE COURT.