R v Harepi [2018] SBHC 115; HCSI-CRC 552 of 2016 (1 March 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Harepi
Citation:
Date of decision:	1 March 2018
Parties:	Regina v May Harepi
Date of hearing:	17-18, 23, 27 October 2017, 21 November 2017, 6, 8 December 2017, 9, 23 February 2018
Court file number(s):	552 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	Direct that the prisoner serve a minimum period of 5 years before being eligible for parole, the period to be backdated to the time spent in pre-trial custody
Representation:
Catchwords:
Words and phrases:
Legislation cited:	Correctional Services (Parole) Regulation 2014 , 5(1)
Cases cited:	Ludawane v Regina [2017] SBCA 23

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 552 of 2016

REGINA

V

MAY HAREPI
Defendant

Date of Hearing: 17-18, 23, 27 October 2017, 21 November 2017, 6, 8 December 2017, 9, 23 February 2018
Sentencing remarks: 1 March 2018

For the Crown: A. E Kelesi
For the Defence: Mr. J. R Brook

SENTENCE

Palmer CJ

1. These are the sentencing remarks of the court after a finding of guilty and conviction of the defendant, May Harepi, for the murder of Ashley Kumu at Nagarimaneman village, Makira Province after trial.
2. Following the ruling of the Court of Appeal in Ludawane v. Regina^[1], it has now become mandatory that in convictions for murder that the court is obliged to state what in its view should be the minimum period of sentence to be served before the prisoner becomes eligible for parole. There is however, a qualification set out in regulation 5(1) of the Correctional Services (Parole) Regulations 2014, (“the Parole Regulations 2014), which seems to provide a restriction of 10 years for a convicted prisoner serving a life sentence before he or she is eligible to apply to the Board for parole. That provision provides:
   • “A convicted prisoner who is serving a life sentence and who has served at least 10 years of his or her effective sentence may apply to the Board, in the approved form, for parole.”
3. While there may appear to be a conflict with what is now the law, as applies to the issue of stating minimum terms as set out by the Court of Appeal, I do not think that is necessarily so, bearing in mind that those provisions were enacted when there was no mandatory requirement to state what the minimum term is. I am obliged therefore in the circumstances of this case to state what is in my judicial discretion the minimum term in this case irrespective of whether it is above or below the prescribed period of 10 years, for each case is different and must be considered on its own merits. Herein lies the crucial distinction between judicial discretion and judicial power as opposed to administrative and executive decisions. The doctrine of separation of powers and independence of the judiciary cannot be intruded upon, including the power to determine the appropriate sentence to be imposed in a particular case. I do acknowledge however, that in the event of a conflict, that it will be addressed by legislative amendment or through an appropriate application for constitutional redress under section 18 of the Constitution by the prisoner.
4. I now turn to the circumstances of offending and the offender. I note submissions of learned counsels in respect of the following matters. First, the case came close to the borderline between murder and manslaughter. From the outset I note the prisoner had indicated a willingness to enter a guilty plea on a charge of manslaughter.
5. Secondly, the element of provocation through the use of swearing or abusive words accompanied immediately after by what can be described as an over-reaction by the prisoner when there was no real threat imminent before him. Thirdly, the absence of an intention to kill, although he had been convicted on the element of knowledge.
6. Fourth, the actions of the prisoner were done on the spur of the moment, were spontaneous, lacking premeditation, or any pre-planning. It arose from a tragic turn of events where uncontrolled use of alcohol was involved, causing tempers to be easily frayed, resulting in violence and fatal injuries being caused.
7. Fifth, there is clear evidence of remorse or contrition on the part of the prisoner from the beginning. When he realised he had caused serious injuries to the deceased, he actively participated in providing assistance to the deceased.
8. Sixth, he and his relatives had paid compensation in custom to heal breaches that had occurred and show that he was sorry for his actions.
9. Seventh, no weapon was used and minimum force applied. He kicked the deceased once and did not persist in attacking the deceased continuously.
10. I note the prisoner is a young man, that this is his first time to appear in court, he has no previous convictions and that prospects of rehabilitation and reintegration into his community are good. I note also he cooperated with police, which is consistent with remorse.
11. I am satisfied taking everything into account and balancing everything, significant discount should be given, including time spent in custody. I am satisfied that the prisoner can be eligible to apply for parole after serving a minimum sentence of 5 years to be back dated to the time he had spent in pre-trial custody.

Orders of the Court:

Direct that the prisoner serve a minimum period of 5 years before being eligible for parole, the period to be backdated to the time spent in pre-trial custody.

The Court.

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^[1] [2017] SBCA 23; SICOA-CRAC 37 of 2016, (13 October 2017)