R v Tufu [2020] SBHC 133; HCSI-CRC 491 of 2015 (11 June 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tufu
Citation:
Date of decision:	11 June 2020
Parties:	Regina v Kidoe Tufu
Date of hearing:	5 June 2020
Court file number(s):	491 of 2015
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer, CJ
On appeal from:
Order:	1. Convict the defendant of the offence of manslaughter. 2. Impose sentence of 4 years. 3. Direct that the period spent in remand in custody to be taken into account and accordingly order that your sentence be backdated to the date you were taken into custody on 26th June 2015. 4. Direct that you be released at the rising of the Court having served the period of the sentence in pre-trial custody.
Representation:	Mrs M Suifa’asia for the crown Mr M R Holara for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 199[cap 26]
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 491 of 2015

REGINA

V

KIDOE TUFU

Date of Hearing: 5 June 2020
Date of Sentence: 11 June 2020

Mrs M Suifa’asia for the Crown
Mr M Holara for the Defence

Palmer, CJ

1. The Prisoner, Kidoe Tufu was initially charged with the murder of Clement Levara (“the Deceased”), but after trial, a finding of not guilty was entered and the Prisoner acquitted. He was however, convicted instead of manslaughter contrary to section 199 of the Penal Code [cap. 26].
2. He now comes up for sentence. The brief facts of the case for purposes of this sentence are summed up as follows. On the said day an argument occurred over the use of the petrol container which the Deceased was carrying in his hand. The Prisoner was upset as he thought the Deceased had taken the container from the logging company. Other villagers who opposed logging at their island did not want anyone to use, take any equipment or item from the logging company.
3. During the confrontation, the Prisoner assaulted the Deceased on the mouth with his closed fist, which caused him to fall backwards hitting his head hard on the road surface. This caused grievous injuries from which the Deceased died a couple of days later.
4. I accept no weapon was used, although the Prisoner had a knife in his hand but did not use it to attack the Deceased with. Instead, he hit him with his closed fist. I accept that you did not expect that the Deceased would be killed and that you are remorseful over what has happened, the Deceased being a distant relative from your own community.
5. This is one of those tragic cases that continues to trouble our islands as a result of disagreements or disputes arising over logging activities in the islands. This is not a new phenomenon ever since commercial logging commenced in the Islands since the 1980’s. It is fortunate that not many deaths through disagreements or disputes are recorded, but they still generate a lot of heated arguments and animosity amongst relatives and community members. This is not surprising for land, being one of the most valuable commodities in our society and communities, unless people are able to resolve their disputes peacefully, this type of activity related to violence and damage to property sadly, will continue to affect our islands as logging activities continue.
6. Churches, community leaders and tribal chiefs have an important role to play in assisting our communities to resolve disagreements and disputes peacefully and amicably to avoid unnecessary violence which may lead to serious injuries, loss of life and or property.
7. The seriousness of this offence is reflected in the maximum sentence of life imprisonment, which can be imposed in extreme cases of seriousness, depending on the circumstances of each case and the presence of aggravating and mitigating features.
8. I bear in mind the circumstances of offending, your personal circumstances, your family and your two children, and that you have been separated from them since your remand in custody. I accept submissions from your Counsel that you are very sorry for what has happened, that you accept the consequences of your action, which has resulted in the tragic loss of a loved one, and death of a distant relative. The island of Mono is a small island and I assume everyone knows each other and in some way or another may be related to each other.
9. I did not see anything about any reconciliation with members of the families of the Deceased and the community, which if not yet done, should be actively pursued on your release, to enable you to resume normal relationships with your people and acceptance back into the community. There is no adverse report on that and so I assume that you have good prospects of rehabilitation and reintegration.
10. I also note while in prison you had undertaken worthwhile studies and life empowerment training through Biblical studies organised by Cross Road Bible Institute conducted by SWIM (Supporting Work in Ministry), supported by the Christian Reformed Churches of Australia. I commend you for that and would encourage you to continue with what you have acquired as you re-settle back into normal life in the community and seek to be a law abiding citizen.
11. I note you have no previous convictions and give credit for that as well. Numerous case authorities^[1] have been referred to by your lawyer, Mr. Holara, in cases of involuntary manslaughter involving an assault by a kick, a punch or by pushing, resulting in most cases in the deceased falling down and being fatally injured by the fall. The sentences imposed ranged from 2 – 3½ years.
12. In cases reported after the year 2000^[2], which involved a punch, kick, push or a slap and resulted in the death of the victim, sentences imposed ranged from 20 months to 3 years. All those cases cited did not involve the use of a weapon. The sentence of 20 months imposed in the case of Regina v. Mana (ibid), while it was an unusually low sentence, took into account the inordinate delay of some 7 years, in the disposal of the case. Apart from that, the average sentences ranged from 2 – 3 years.
13. The facts of this case are not dissimilar, where a punch caused the fall of the deceased and resulted in grievous injuries to his head. A number of cases^[3] as well have been referred to by Mrs. Suifa’asia for the Crown, involving manslaughter with sentences ranging from 3 years to 7 years. I note aggravating features referred to by Mrs. Suifa’asia as constituting the following:
    • (i) That the attack was not provoked;
    • (ii) That you were the aggressor; and
    • (iii) That you were armed with a knife although it is conceded you did not use the knife but instead assaulted him with a punch.
14. I note in your favour, your age at 34, with good prospects of rehabilitation, your previous good character and lack of previous convictions. I accept submissions from your Counsel that while in prison you had been involved in worthwhile study and learning which will greatly assist you as you reintegrate back into society and your community. I also take into account that you had spent some 4 years and 4 months in pre-trial custody, which should be taken into account and your sentence backdated to the date of remand in custody.
15. Balancing all these factors, I am satisfied a sentence of 4 years will adequately reflect what is the just and appropriate punishment for the offence and also adequately reflect the elements of deterrence, prevention and rehabilitation. Having served the period of sentence in pre-trial custody, you are entitled to be released at the rising of the court.

Orders of the Court:

1. Convict the defendant of the offence of manslaughter.
2. Impose sentence of 4 years.
3. Direct that the period spent in remand in custody to be taken into account and accordingly order that your sentence be backdated to the date you were taken into custody on 26^th June 2015.
4. Direct that you be released at the rising of the Court having served the period of the sentence in pre-trial custody.

The Court.

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^[1] R. v. Lensley Kwaimani, CRC no. 3 of 1997; R. v. Taufe CRC no. 42 of 1987; R. v. Pituvaka CRC no. 22 of 1986; R. v. Mathew Garunu CRC no. 23 of 1986; R. v. Banisi CRC no. 37 of 1999; R. v. Gabriel Wakio and Martin Manehai CRC no. 19 of 1998; R. v. John Waiwai CRC no. 41 of 1994.
^[2] R. v. Daowea [2006] SBHC 60, HCSI-CRC 004 of 2006 (5 July 2006); R. v. Maesala [2013] SBHC 111, HCSI-CRC 229 of 2010 (19 July 2013); R. v. Mana [2006] SBHC 145, HCSI-CRC 100 of 2003 (21 March 2006); R. v. Poa[2011] SBHC 8, HCSI-370 of 2009 (11 March 2011); R. v. Taganepari [2011] SBHC 80, HCSI-CRC 33 of 2010 (23 August 2011); and R. Samson Totoha HCSI-CRC 406/2014 and 6/2015.
^[3] R. v. Lensley Kwaimani [1997] SBHC 92 and 93; R v Pasirivo [2005] SBHC 101; R. v. Talu [2005] SBHC 123; ad Rongodala v. R [2006] SBCA 2; and Popoe v. Regina [2015] SBCA 20.