R v Folia [2020] SBHC 75; HCSI-CRC 37 of 2019 (15 May 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Folia
Citation:
Date of decision:	15 May 2020
Parties:	Regina v Malcolm Folia
Date of hearing:	8 June 2020
Court file number(s):	37 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	I sentence you to 7 ½ years imprisonment. I further direct that the time spent in pre-trial custody be deducted from the total sentence.
Representation:	Mr. Andrew E. Kelesi for the Prosecution Mr. Allan Tinoni for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, S.200, S.199
Cases cited:	Rongodale v Regina [2005] CRAC 008 of 2006

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 37 of 2019

REGINA

V

MALCOLM FOLIA

Date of Hearing: 8 May 2020
Date of Decision: 15 May 2020

Mr. Andrew E. Kelesi for the Prosecution
Mr. Allan Tinoni for the Accused

SENTENCE

Bird PJ:

1. The Accused in this matter was initially charged with one count of murder contrary to Section 200 of the Penal Code.
2. On the 18^th February 2020, the Director of Public Prosecutions filed a nolle prosequi in respect of the murder charge against the accused and he was subsequently discharged.
3. On the same date the Director had also filed amended information against the accused on one count of manslaughter. The accused was arraigned on the manslaughter charge on 3^rd March 2020 and he had entered a guilty plea. On two consecutive dates thereafter, both lawyers were unable to finalise the agreed facts and were not prepared to make sentencing submissions until the 8^th May 2020.
4. You are hereby reminded that the offence of manslaughter under Section 199 of the Penal Code is a very serious offence. It carries a maximum sentence of life imprisonment.
5. The facts of your case as presented to this court are as follows:-

On 17^th June 2019, you were drinking alcohol with the deceased and others from your neighbourhood. Whilst you were drinking, the deceased left to find something to eat whilst you and the others continued drinking. At that time, the group was cracking jokes about Brazil’s loss, the team you supported during the World Cup soccer games.
From the jokes, you were irritated and punched Donovan Sirai. You also tried to punch William Ahukela who at that time was trying to restrain you.
You then said that you were going to get your knife. You returned with the knife and you tried to stab Donovan in his attempt to restrain you. Your sister Patricia also tried to restrain you but you also wanted to hurt her.
An elder of your community had reprimanded you and your group and told you to stop disturbing the community but you refused to listen.
It was by that time that the deceased had arrived back and also tried to restrain you when you stabbed him on his chest.
You did not stop there but also tried to attack another relative of the victim when he tried to restrain you and terrorised market vendors.
The victim was taken to the National Referral Hospital and later died as a result of the stab wound to his chest.

6. The court had heard submissions from the prosecution and your lawyer on your case. The court had viewed the following as aggravating features against you:-
   1. You were the aggressor.
   2. Being the aggressor, you went to get your double-edged knife.
   3. You attacked several people who tried to restrain you, including your own sister and a community leader.
   4. The deceased was merely trying to restrain you when you stabbed him with the knife.
   5. You did not check the deceased’s condition after you stabbed him but continued to be aggressive towards other.
   6. You were swearing and disturbing the peace.
   7. You were drunk and armed with a lethal weapon being a knife.
   8. There was loss of life from a very minor issue that starts off as a joke.
7. On your behalf, the court had noted your lawyer’s submissions. I give you credit for you guilty plea which shows remorse. The deceased was your friend and that you are sorry for what you did. Your plea saves time and resources in conducting a full trial.
8. You are a young man and single with no previous conviction. You were a man with good character until that fateful day when that incident occurred.
9. Your lawyer had submitted that you were provoked into committing the offence. Whilst that may be true, this court views that it was the effect of alcohol that determined how you behaved on that fateful day.
10. According to the facts presented to the court, you and the deceased with others were drinking alcohol on that occasion. From the facts presented as well as your behaviour on that day, you must have been very drunk. As you were cracking jokes, you became aggressive. You left, got your knife and returned to your drinking friends. As your friends were trying to restrain you, you instead tried to stab them with the knife. Even your sister Patricia and a community leader tried to restrain you but you also wanted to hurt them.
11. By then the deceased had returned to the scene and tried to further restrain you when you delivered that fatal stab on his chest. After stabbing your friend, you did not stop your act of terror but continued to threaten those around you including market vendors.
12. Your friend, the deceased died at the National Referral Hospital from the stab wound inflicted by you on that fateful night.
13. Your act of terror on the deceased and others including innocent market vendors was uncalled for and this court is very concern about it. If you were sober, you would not have behaved in that most stupid way. You acted like a mad man who was completely out of control.
14. Your bad drinking habit had determined your destiny. Your regret came too late. You have taken away the life of your friend from a very minor thing that starts off as a silly joke.
15. Young people of this nation are reminded not to get entangled with drinking habits. Abuse of alcohol could snare your judgment in acting responsibly and sensibly in all circumstances.
16. Take this, as an opportunity to change your mindset and to redirect yourself to a life which will lead you to living a better life. You must leave behind the mindset of just getting drunk and/ or to celebrate an occasion with alcoholic drinks. That was the cause of your mishap. It is advisable not to repeat that kind of life ever again.
17. In sentencing you, I am guided by the case authorities relied upon by the prosecution and your lawyer and I am grateful for both counsel. I wish to mention in particular the case of Rongodale v Regina [2005] CRAC 008 of 2006. The Court of Appeal in that case stated that factors to be taken into account in sentencing on a charge of manslaughter are:-
    1. The age of the offender
    2. Previous convictions involving violence, provocation & intoxication
    3. Types of weapons used
    4. Persistence of the attack
    5. Vulnerability of the victim
    6. Relationship between the parties.
18. From the cases cited by counsel, I am inclined to say that the starting point on manslaughter cases involving the use of a knife is one of six years imprisonment.
19. In your case, you are a young man. You have no previous convictions. The weapon that you used was a double-edged knife, a lethal weapon in the hands of a drunkard person. You intended to use the knife. The attacks on your friends, marked vendors and the deceased was persistent. A number of people had tried to restrain you but were unsuccessful. The deceased was also drunk. He was not armed but was trying to restrain you as a friend. With his state at the material time, he was very vulnerable. The deceased was a friend of yours and had never intended to cause you any harm.
20. With the above circumstances, I must say that it was a very unfortunate incident that had cost the life of one of your friends. It is regrettable and such actions should never have occurred.
21. Taking into account all of the aggravating and mitigating features in your case, I am of the view that the appropriate sentence is one of imprisonment.
22. I sentence you to 7 ½ years’ imprisonment. I further direct that the time spent in pre-trial custody be deducted from the total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge