Regina v Kalafu [2014] SBHC 53; HCSI-CRC 265 of 2012 (15 May 2014)

HIGH COURT OF SOLOMON ISLANDS
(Maina, J)

Criminal Case No: 265 of 2012

REGINA

- v -

DAMIANO KALAFU AND ANDREW BATANIMALA

Date of Hearing: 12th May 2014
Date of Judgment: 15th May 2014

For Prosecution: M. Manata
For 1st Accused: A. Tinoni
For 2nd Accused: N. Galo

SENTENCE

Maina J:

Defendants Damiano Kalafu and Andrew Batanimala pleaded guilty and were convicted of the offence of Manslaughter contrary to Section 199 (1) of the Penal Code. The charges relates to the death of Everesto Bata'ae.

Brief Facts

On 21st October 2011 at Kwailao village, Langa Langa Lagoon Malaita Province, the deceased and three others namely Fred Malakia, defendants Damiano Kalafu and Andrew Batanimala were drinking at Malakia's home. They drank all night until the next day 22nd October 2011. Kwailao village is an artificial island built up with coral from the reefs.

The two defendants Damiano Kalafu and Andrew Batanimala then left and the deceased followed them in pursuit to get his change from the $50.00, which he gave earlier to the defendants to buy two bottles of kwaso. The deceased met the defendants and he swore at them. He threw a punch to Andrew Batanimala but missed him. The Deceased with the defendants punched each other and the deceased fell backward and his back head landed or hit the coral reef and he became unconscious.

The deceased was referred to Kilu'ufi Hospital on 6th November but died on the 7th November 2011. The post mortem report states that deceased died from the right subdural haemorrhage as a result of blunt trauma to the head occurred 16 days prior to his death.

Mitigation

In mitigations, Counsel Allan Tinoni remarked in his submission that the act by the accuses is within the lowest degree for the offence of manslaughter as the deceased and accuses were friends, drinking together but during the brawl with each other that the deceased fell and hurt himself on the stones that resulted to his death. And I would think so but it also involved liquor or drunk with kwaso.

Both defence counsels submitted the factors for the Court to take into account when considering the sentence for the defendants. Both defendants pleaded guilty in this case. They are pre-sentence remand period, circumstance of the defendant's offending, mitigating factors, their ages and sentencing precedents. Counsels presented reports for each accuses from Auki Correctional Service for the good behavior while on remand for this case.

Counsel for the crown submitted antecedents for both defendants and they pleaded guilty. Damiano Kalafu was 23 years old when he was arrested now 26 years old and Andrew Batanimala was 18 years old now 21 years old. Both have no previous convictions and are remanded in custody since 9th November 2011.

Aggravating Factors

On the aggravating factors, the crown submitted that a person's life had been taken as a result of unlawful act by the accusses, both accusses were under the influence of liquor at the time of incident and no remorse shown by both accuses but escaped when the deceased fell on the stones.

As the aggravating factors the crown made references to Regina v Maesala (2013) SBHC 111, Regina v Taganepari (2011) SBHC 80 and Regina v Madala (2008) SBHC 98 respectively.
These are the factors to be taken into account and the cases provide a range of sentence on similar cases. I do not find any difficulty in accepting them in this sentence.

Comparative Sentences

Counsels from the crown and defence made reference to authorities on similar cases and sentences. I have taken note of the cases as they provide the range of sentences imposed by the Court on similar offences.

Counsel Manata for the crown submitted that the appropriate sentences for this present case range of 5 – 6 years' imprisonment. She asked the Court to distinguish this case from the cases on the following reasons:

1. Regina v Poa (2011) SBHC 8, although the circumstances is similar with present case it involves two accuses that were under the influence of liquor when they assaulted the deceased which eventually caused his death.
   
2. Regina v Taganepari (2011) SBHC 80, there was a strong mitigation submitted for the accused with remorse and compensation of $28,000.00 paid to the victim's family along with food and pig. Accused surrendered himself to the police when he learnt the death of the deceased.
   
3. Regina v Maesala (2013) SBHC 111; CRC 229 of 2010, although similar on the nature of the unlawful act which caused the death of the deceased, accused was not drunk. There was reconciliation held between the families of the parties and compensation of $20,000.00 with 7 strings of shell money (tafuli'ae) was paid to the accused family to the deceased families. With this case, there was no such compensation.
   
4. With the Regina v Bennett HC-CRC No. 70 of 2013, the Court indicated the starting point should be six and half years, but reduced the sentence due to the delay by the prosecution.
   

Both defence counsels submitted the cases referred to and others show that the sentences for this category range of 1 – 3 years' imprisonment.

I noted and take into account the factors raised in the above cases and as I have said earlier they also provide a range of sentence on similar cases for the purpose of comparative sentences. On my part, I also remind myself on the sentencing principles that each case to be decided on it's own merit or circumstances.

The Case

During the submissions, I asked all the counsels on what purposes are the compensations and reconciliations after the death. I did so because it appears from the prosecution that sentences on the above cases were also reduced because of paying compensation. It is a mitigating factor as discussed by His Lordship Palmer CJ in the case of Regina –v- Dawea (2006) SBHC 60; HCSI-CRC 004 of 2006.

With that, another prevailing aspect of compensation and reconciliations is to restore the peace and harmony among the families, relatives or communities that had been deterred by the accused from the death of another as hinted by defence counsel Galo to my question. This aspect plays a lot in the so called compensation or reconciliations after the deaths. With this case, there is no such made by the parties.

In this sentence, I take into account and give credit for plea of guilty and no previous convictions to both accuses. Guilty pleas reflect remorseful on part of the defendants. It also serves resources for full trial. I also noted the experience and hardship of the family from the death of their father as being the bread winner for them.

Taking into account all the matters that have been raised in submission to the Court, it is my view that by the circumstances of the case the appropriate custodial sentence for this case range of 3 – 4 years' imprisonment. The defendants Damiano Kalafu and Andrew Batanimala each is sentenced to prison for four (4) years.

Order of the Court

1. Damiano Kalafu is sentenced to four years imprisonment.
2. Andrew Batanimala is sentenced to four years imprisonment.
3. The period spent in custody for both defendants to be deducted from the sentence.
   

..............................................
Justice Leonard R Maina
Puisne Judge