R v Hence [2020] SBHC 34; HCSI-CRC 255 of 2004 (3 June 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Hence
Citation:
Date of decision:	3 June 2020
Parties:	Regina v William Hence
Date of hearing:	5 May 2020
Court file number(s):	255 of 2004
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	I impose the following sentences:- •Count 4 -3 years imprisonment •Count 5-3 years imprisonment •Count 6 -3 years imprisonment •Count 7 - 3 years imprisonment •Count 8 -3 years imprisonment •Count 9-2 years imprisonment •The sentences are to be served concurrently with each other
Representation:	Mr. Andrew E Kelesi for the Prosecution Mr. Daniel Kwalai for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, s250, s245, Constitution of Solomon Islands, s10 (1) (2), s7 (1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 255 of 2004

REGINA

V

WILLIAM HENCE
Accused

Date of Hearing: 5 May 2020
Date of Decision: 3 June 2020

Mr. Andrew E Kelesi for the Prosecution
Mr. Daniel Kwalai for the Accused

SENTENCE

Bird PJ:

1. This is a tension related case in which the defendant was jointly charged with Harold Keke and Ronnie Cawa for various offences. The Director of Public Prosecution had filed information against all three Defendants on the 3^rd April 2012. The date of offending was between 6^th June 2003 to 10^th June 2003.
2. The court had noted that the defendant’s co-accused namely Harold Keke and Ronnie Cawa are yet to be tried by this court. They are both serving prisoners at the Rove Correctional Institution for other offending not related to this proceeding.
3. The defendant was originally charged with seven counts of abduction contrary to Section 250 of the Penal Code and one count of assault causing actual bodily harm contrary to Section 245 of the Penal Code.
4. The Director of Public Prosecutions had applied for a nolle prosequi in respect of counts 1 and 2 and the defendant was accordingly discharged. The prosecution then proceeded to indict the defendant on counts 4, 5, 6, 7, 8 and 9 of the information filed on the 3^rd April 2012.
5. Upon being arraigned, the defendant had entered guilty pleas on all 5 counts of abduction and one count of assault causing actual bodily harm (ACABH). He is according convicted on all six charges.
6. The offence of abduction is serious in nature and carries a maximum penalty of seven years imprisonment. The offence of ACABH is a misdemeanour and carries a maximum penalty of five years imprisonment.
7. The facts of the case against the defendant are as follows:-

Between 6^th of June 2003 to 10^th June 2003, two novices Andrew Holan and Wilfred Koete were captured by Harold Keke and his men in Hoba.
Alfred Tabo, Peter Kesimu, Benjamin Kunu, Robert Odakohi and Gabriel Gwai decided to go to Hoba.
When they reached Hoba they sent a note in an attempt to ask for the release of the two novices to a group of Harold Keke’s men.
At the material time, the novices were not with the group of men on the beach.
The men replied and told the five men to wait at the village and they would return to discuss the issue. The Brothers were advised by a villager to return to Babanakira otherwise risked being captured but they decided to spent the night at the village.
The men including the defendant arrived and told the five men to walk with them to Koloqauqau.
As they left Hoba village, the five men were questioned why they were there. Their hands were then tied together as they walked to Koloqauqau.
When they reached Koloqauqau village, the five men were taken to a copra dryer outside the village and were further questioned why they had come to their territory unannounced.
Brother Tabo was questioned if he was a spy for the government. When his answers were unsatisfactory, the defendant kicked him on the face and on his back.
The captives were then taken to Biti Village. At Biti, they were further questioned by Ronnie Cawa. Alfred Tabo told Ronnie that they did not know the area was occupied by Harold Keke’s men. He told Cawa that their reason for going was to try and negotiate the release of the two novices.
The captives stayed at that village for a further two weeks and were treated well.
Yukio Sato came over and further negotiated with Harold Keke for the release of the five Brothers and two Novices. The negotiation was a success and it was agreed that the Brothers and the Novices will be released.
Before the actual release, a reconciliation ceremony was held between Harold Keke on behalf of his men and the Brothers. There was an exchange of shell money, pigs and potatoes. There was an apology from Harold Keke for the ill treatment of the men.
Yukio Sato then left with Robert, Gabriel, Andrew and Wilfred to Honiara. Three weeks later, he went and brought Peter Kemisu, Benjamin Kusu and Alfred Tabo to Honiara.

8. I have heard submissions from the prosecution as well as the defence in your case and I have noted what was said.
9. I have noted from the prosecution’s perspective that there are aggravating factors in your case. These factors are that:-
   1. You were a member of an unlawful armed group.
   2. Your actions were inhumane, and barbaric.
   3. The captives (victims) were held for a further two weeks by your group until their release.
10. On your behalf, your lawyer had raised various mitigating factors. One of the most glaring mitigating factors raised on your behalf by counsel is the delay in the prosecution of this matter.
11. The date of offending was between 6^th June 2003 to 10^th June 2003. You were arrested and remanded in custody on the 25^th September 2003. After serving a seven years imprisonment term for another offence, you were released from incarceration.
12. On the 31^st December 2015, you were arrested and placed on remand at the Rove Correctional Institution. From thereon, your case was not listed even for mention by this court. The first time that you appeared again in court on this matter was on the 14^th June 2019, some four years after your arrest.
13. That delay is very unreasonable and unjustified under the circumstances. Your case was last mentioned by this court on the 1^st February 2013 and was forwarded to the Case Listing Committee (CLC) to fix a trial time. The CLC did not fix any trial date until the 14^th June 2019 when it was listed for a bail application.
14. Your right to be afforded a fair hearing within a reasonable time by an independent and impartial court is safeguarded by virtue of Section 10 (1) of the Constitution.
15. From the date of offending to the current date, there is a delay of about 16 years, 7 months and 25 days.
16. A question that could be raised in this instance is - Does the facts in this case comply with the requirement of s.10 (1) of the Constitution? I believe not. This is a very serious delay. This court, the DPP and the Public Solicitors Office should be equally blamed for this serious delay.
17. Upon perusing the court file, it was apparent that there was no warrant of arrest and no remand warrant against this accused on file. I further invited submissions from both counsel to explain the circumstances.
18. On the 15^th May 2020, learned counsel from the DPP, Mr. A. E Kelesi filed supplementary submissions. From those supplementary submissions, it was evident that an error had been committed by the court. At the time of this sentence, the court had not received any supplementary submission from Mr. D. Kwalai of counsel for the defendant.
19. The error referred above was that the warrant of arrest which was issued by this court dated 2^nd October 2012, was in respect of criminal case no. 405 of 2008 not this current proceeding. Had the court been vigilant enough to check all the relevant court files in respect of this defendant, this error should have been avoided. The accused was arrested and detained in custody since the 31^st December 2015 in CRC 405 of 2008. That particular file should have been listed by this court upon the defendant’s arrest. That never happened.
20. Aside from the above circumstances, it is obvious that this accused had been in custody since his arrest in CRC 405 of 2008 on the 31^st December 2015 until his release on bail on the 23^rd July 2019. That delay must also be taken into account in sentencing him.
21. The victim’s rights in this case is protected under Section 7 of the Constitution and the defendant’s rights are also protected in the same way under Section 10 (1) of the same.
22. The court had noted your guilty plea which shows remorse. Your early guilty plea has also save time and resources to conduct a full trial.
23. Connected to your guilty plea is the fact that reconciliation was carried out between your group and the victims. There was an exchange of shell money, pigs and potatoes during that occasion and Mr. Harold Keke had apologised for your actions. You attended that ceremony, which signified your remorsefulness.
24. The court had also taken note of your personal circumstances. You have made a roundabout turn for your own betterment. You have attended Theological College. You are married with three children and your wife who is expecting your 4^th child is admitted at the National Referral Hospital in Honiara.
25. The court had also taken note of the fact that at the time of offending, you were a young man who was taking orders from your leaders. One of the orders taken had resulted in the current prosecution in this case.
26. In balancing the aggravating features and the mitigating features in your case, I must tell that you and any other perpetrators of like offences that no one has the right to take captive any person because that person has the very same rights as you do.
27. Notwithstanding that, the court is extremely concerned about how your case had unfolded from 2013 to June 2019.
28. I do not condone what had seemed to have transpired in your case. Your case should have been dealt with by this court and tried years ago.
29. I am informed by counsel in this case that this matter could be one of them that was included by court direction to wait for hearing because your two co-accused were serving life-time prisoners.
30. I do not agree that such a direction should come from the court simply because it defeats a person’s right under Section 10 (2) of the Constitution. When making those types of direction the court is a party to the breaches. The court’s duty is to hear criminal cases and dispose of them according to Section 10 of the Constitution. It is not part of the court’s duty to supress criminal cases from being heard.
31. I also wish to add that the defendants’ lawyers had filed an application for permanent stay of this proceeding because of the lengthy delay in the prosecution of it. That application was refused by this court and the matter should have been tried by the court as soon as possible thereafter.
32. The failure to have the matter listed for hearing is also a breach of the various court directions dated the 9^th November 2012 and thereafter.
33. After having said all the above, I hereby convict you on your own plea with the offences particularised in counts 4, 5, 6, 7, 8 and 9 respectively.
34. In sentencing you, I am guided by the comments of the then Chief Justice Ward in the case of Patterson Runikera CRAC 14-87 page 2, whereby he was very critical of the delay of five years describing it as scandalous and likely to cause injustice.
35. The delay of more than 16 years in your case, would result in a substantial reduction of the sentence which would have been imposed on you.
36. Having considered all that had been said in your case by both the DPP and your lawyer, I impose the following sentences:-
    • Count 4 -3 years imprisonment
    • Count 5-3 years imprisonment
    • Count 6 -3 years imprisonment
    • Count 7 - 3 years imprisonment
    • Count 8 -3 years imprisonment
    • Count 9-2 years imprisonment
    • The sentences are to be served concurrently with each other.
37. I further order that in light of my above discussion on the breach of this defendant’s Constitutional rights, he is to be released at the rising of this court.

THE COURT
Justice Maelyn Bird
Puisne Judge