R v Sai [2020] SBHC 45; HCSI-CRC 605 of 2019 (17 July 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sai
Citation:
Date of decision:	17 July 2020
Parties:	Regina v John Sai
Date of hearing:
Court file number(s):	605 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina J
On appeal from:
Order:	Defendant is sentence to life imprisonment; and The minimum term to be served is 15 years before entitled for release on parole
Representation:	A. Kelesi for Crown H. Lawry for Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, s200 [cap 26], Correctional Service Act 2017
Cases cited:	Ludawane v Regina [2017] SBCA 23, Tii v Regina [2017] SBCA 6, Regina v Funifaka [1997] SBHC 31, R v Sanga (Unrep Criminal Case 7 of 1985

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 605 of 2019

REGINA

V

JOHN SAI

Date of Sentence: 17 July 2020

A. Kelesi for Crown
H. Lawry for Defendant

MURDER LIFE SENTENCE

PAROLE MINIMUM TERM TO BE SERVED

Maina PJ:

Defendant John Sai, was charged with murder contrary to section 200 of the Penal Code (Cap 26).

On arraignment on 16^th November 2019, the Defendant pleaded guilty on the charge and I entered a guilty plea on the charge of murder against him. I called for the facts of the case to read or put to the defendant, but it was not available and so I adjourned the case to another mention. The agreed fact was filed in court until 5^th May 2020.

On 17^th July 2020, facts of the case was put to the defendant and he agreed to the facts. On guilty plea to the charge or information and agreeing or accepting the facts, he was accordingly convicted on his own guilty plea on the charge of murder.

In this jurisdiction, murder is a very serious offence and carries a mandatory sentence of life imprisonment for an adult offender and the defendant is sentenced to life imprisonment.

A matter that I am also obliged to make a determination or ruling on is the required or recommend a minimum term of imprisonment to be served before eligible to apply for parole under the Correctional Services Act 2007.

There is no local legislations that provide for a judge to do so, however this issue has been settled in the case of Ludawane v Regina^[1] when the Court of Appeal stated:

“We adopt without reservation the approach set out in Anderson and confirm that when sentencing an offender to a mandatory sentence of life imprisonment it is incumbent on the sentencing judge to fix a minimum term of imprisonment which the offender must serve prior to his or her release on licence (termed in the legislation ‘parole’)”.

The above case with Tii v Regina^[2] adopted the common law principles on the categories and matters for consideration when recommending a minimum term of imprisonment before entitled for release on parole. For the purpose, I adopt the three categories referred to in determining a minimum term of imprisonment to be served in the cases. The normal starting point i.e. 12 years, the higher starting point i.e. 15/16 years and very serious cases from matters of facts, aggravating factors and mitigation.

The Facts

Defendant John Sai was married to the deceased Susan Sai and have a child. Both lived together at their family residence at YWCA area, Town Ground in Honiara. After the defendant married to his wife (deceased) there were ongoing domestic issue between them.

On the evening of 9^th August 2019, the Defendant and Harold Leo and Nelson Atu were drinking Kwaso at a market stall at YWCA area, Town Ground. And between 12am and 2am on 10^th August 2019, their drinks finished and they separated. Defendant then took Nelson Atu’s bicycle and went down to Rove to buy cigarette. Later he arrived back and met Nelson and some other boys in front of an area owned by a Chinse at YWCA area.

Not long the Defendant left the boys and went back to his house. On arrival at the house he called for his brother David Sai to open the door of the house but instead his mother Ruth Abiasi opened the door for him. Defendant then went straight into their room where his wife and child were sleeping.

Some minutes later the Defendant came out and went to the kitchen and again went back to their room.

Whilst the Defendant’s mother was laying in her bed she heard two distressing cry from the defendant’s room and their child was also crying. The Defendant’s mother got up from her bed and ran to the defendant’s room and tried to force the door to open as it was closed. She managed to slightly open the door and as she looked in the room she saw the deceased lying on the floor with her head sideway facing the wall of the room whilst the defendant knelt down over her body. The mother also saw her son, the Defendant held a kitchen knife about 20 to 30 centimetre in his left hand with blood on it. The mother tried to talk to him but the son replied “do you want me to stab you with the knife” The mother then retreated or moved back for fear of injury.

The mother’s daughter came and then went and called her husband and others. Defendant then went out from the house and asked for rope to hang himself. Police came and the Defendant surrendered and was arrested by them.

The body was taken to the hospital and a post mortem was carried by Dr Maraka and noted:

1. On external examination, there were:
   • six stab wounds,
   • four slash wounds on her back,
   • five small cut wounds on the breast and left chest anteriorly,
   • one wound (102x40mm) on her left mid-back revealed a slash would and a stab wound on the same side.
2. On internal examination, there were:
   • the 1^st to 3^rd right ribs were cut,
   • the 1^st to 7^th, 9^th and 10^th were also cut from the posterior or back,
   • the anterior ribs were also cut by the stab wounds applied from the back, there were the second right rib and the 3^rd, 4^th and 6^th left ribs.
   • the stab wounds cut the lower lobe and upper lobe of the left lung and upper and lower lobe of the right lung, the stab wounds also cut the hilar with left bronchi (airway) of the left lung,
   • the stab wounds also the heart at four sites, entering the chambers of the heart,
   • the pericardium (covering of the heart) were also cut at four sites, two at the right and on the left,
   • there was a wound from the back that entered the abdomen but did not cut the intestines.

Dr Maraka noted that the four wounds on her back entered into the chest and abdomen and caused internal injuries that caused the deceased to die, thus all the wounds on her back contributed to her death as a result of blood loss from the wounds. All the stab and slash wounds were likely to be sustained by the use of a sharp weapon such as knife.

Both the Crown and the defence made written and verbal sentencing submissions. Counsel for the Crown submitted and made references to the cases of Ludawane v Regina^[3] and Tii v Regina^[4] and he sought a starting point considering the level of aggravating features would be 15/16 years. And it is from this sentencing before the court can then consider the aggravating features, mitigating features, being a young adult and other features.

Counsel for the defence made reference to the guidelines of Lord Bingham CJ as stated in Ludawane v Regina’s decision^[5] as assistance of a sentencing judge in determining a starting point and minimum term of imprisonment to be served before parole. For this case, the normal starting point of 12 years.

Counsel further submitted that when a starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upward or downward, taking into account of aggravating or mitigating factors, which relates to either the offence or the offender, in a particular case.

He also referred to the Defendant’s family’s customary reconciliation and compensation of $121,000.00 to the victim’s family and CJ Palmer’s statement in the cases of Regina v Funifaka^[6] He stated:

“Of some significance is the fact that compensation had been paid by the accused's relatives to the victims and their people in custom.
The significance of compensation in custom however should not be over-emphasized. It does have its part to play in the community where the parties reside, in particular it makes way or allows the accused to re-enter society without fear of reprisals from the victim’s relatives. Also it should curb any ill-feelings that any other members of their families might have against them or even between the two communities to which the parties come from. The payment of compensation or settlements in custom do not extinguish or obliterate the offence. They only go to mitigation. The accused still must be punished and expiate their crime. I do give credit however for this”.

And in R v Sanga^[7] when CJ Wood ruled that customary compensation can be taken into consideration in homicide cases.

With the matter to vary the starting point as submitted by the defence it is interesting as the matter should be determine from the facts of the case. It is so as the facts form the basis of any sentence and so would assist on the same basis to any recommendation or direction, as to a minimum term. Thus, it all forms the basis to determine categories of the starting point for the guidelines of Lord Bingham CJ with normal starting i.e. 12 years, the higher starting point i.e. 15/16 years and very serious cases.

The defendant’s case as noted from the fact of the case and or by the circumstance of the offending, it cannot be a normal starting point with 12 years.

With this case it is serious and the fact disclosed the offender’s culpability was exceptionally high, and the victim was in a particularly vulnerable position with the extensive and multiple injuries that were inflicted on the victim before death. I am satisfied that the Defendant deserve the category of higher starting point of 15/16 years.

In determining the appropriate minimum term to be served before parole, I recognise and take into account the aggravating features in the case, defendant is the husband of the deceased, someone to be regarded as protector, incident happened at family home in the night at the time of sleeping, in the presence of them a small child, defendant was under the influence of liquor, the use of the knife and the extent of the external wounds and internal cut and injuries to the deceased as described by Dr Maraka in the post mortem report.

Also I recognise and take into account the mitigating factors of the Defendant. He is a young adult, pleaded guilty, no previous conviction and his family background.

I noted the Defendant’s family’s customary reconciliation and compensation and that is a customary obligation of his family as stated by CJ Palmer in the case Regina v Funifaka^[8] and or further to create again the peace and harmony among the relatives of the parties that may have been destroyed from the act or offending of the Defendant. Defendant has committed a serious offence of murder and in all respect I do not give credit.

As noted from the facts, the offender’s culpability was high, and the victim was in a particularly vulnerable position, thus the extensive and multiple injuries that were inflicted on the victim before death with the aggravating factors and mitigating factors all taken into account.

And I am satisfied and determine that the minimum term of imprisonment before entitled for release on parole is 15 years.

Orders of the Court

1. Defendant is sentenced to life imprisonment; and
2. The minimum term to be served is 15 years before entitled for release on parole.

THE COURT
Justice Leonard R Maina
Puisne Judge

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

^[2] [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017)
^[3] Ibid
^[4] Ibid
^[5] Ibid,
^[6] [1997] SBHC 31; HC-CRC 033 of 1996 (6 June 1997).
^[7] (unrep) Criminal Case No. 7 of 1985
^[8] Ibid