R v KH [2021] SBHC 119; HCSI-CRC 342 of 2021 (21 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v KH
Citation:
Date of decision:	21 October 2021
Parties:	Regina v KH
Date of hearing:	7 October 2021
Court file number(s):	342 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant is sentenced to 2 years’ imprisonment deemed to have commenced on 30 March 2021. 2. The Defendant is to serve the remainder of his sentence from 21 October 2021 in the community under the supervision of his parents. 3. The Defendant is not to associate with anyone his parents direct him to not associate with. 4. The Defendant is to undertake 50 hours of community work at a church or community organization as directed by his parents. 5. The father of the Defendant is requested to provide supervision of that community work. 6. The Defendant is directed to attend school in 2022, either in the village or at a vocational school. 7. The Social Welfare division of the Ministry of Health is directed to prepare reports on the conduct, education and community work undertaken by the Defendant and provide those reports to the High Court Registrar by 28 February 2022, 31 May 2022, 31 August 2022 and 30 November 2022.
Representation:	Ms M Suifa’asia for the Crown Mr. D Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 199 (1)
Cases cited:	Regina v Baega [2012] SBHC 94, Regina v Maesala [2013] SBHC 111, R v K [2006] SBHC 53, Regina v Rakaimua [1996] SBHC 100, Regina v Kalafu [2014] SBHC 53, Regina v Faisi [2006] SBHC 131, Regina v Tungale [1999] SBHC 47,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 342 of 2021

REGINA

V

KH

Date of Hearing: 7 October 2021
Date of Judgment: 21 October 2021

Ms Suifa’asia for the Crown
Mr D Kwalai for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. K H, you have pleaded guilty to one count of manslaughter contrary to section 199 (1) of the Penal Code. You now appear for sentence. The charge has a maximum penalty of life imprisonment.

Facts

2. On 26 March 2021 you were with others in the Baha’i area in Honiara. The Deceased was walking along Kukum Road. He was intoxicated. One of those with you told you to steal from him. You approached the Deceased near a barbeque stall in Kukum. You slapped the Deceased twice in the face. The Deceased fell to the ground hitting his head and becoming unconscious. You left him lying in that state. He was found next morning by a passer-by who called an ambulance. The Deceased was taken to the National Referral Hospital on 27 March 2021. He died the following day.
3. Your family has given compensation of $5,000.00 and 4 Hahatanga (South Malaitan shell money) to the family of the Deceased. You turned 15 just 11 days before the offence. You have no previous convictions. You were arrested on 29 March 2021 and have been in the custody of the Police or Corrections since that time.

Aggravating factors

4. The Crown has asked me to consider the fact that you were under the influence of alcohol as an aggravating factor. Also aggravating was the fact that the offence occurred in the course of you attempting to steal from him, at night when he was intoxicated.
5. The Crown also asks me to consider the need for both general and specific deterrence.

Mitigating features

6. You are still aged only 15 years. You have pleaded at the earliest opportunity. You have no previous convictions. I am told you are remorseful. Your family has accepted the need for compensation on your behalf. This has been given to the family of the Deceased.
7. I note that the offending was the result of being incited to steal from the Deceased by one or more of those you were with. I do not regard that as a mitigating feature. You chose to steal from someone who was clearly drunk. When you hit him he fell unconscious and you left him there. He died of the injury caused when he fell to the ground.

Juvenile offenders Act

8. Section 2 of the Juvenile Offenders Act [the Act] defines an individual between the ages of 14 and 18 as a young person. Section 16 of the Act provides ways that the Court can deal with a young person. As you were just 15 at the time you caused the death of the Deceased and are still 15, you are a young person and section 16 applies to the sentencing that the Court must impose.
9. Section 12 (2) of the Act provides that no young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way specified in section 16. You have now been in detention, either with the Police or Corrections for nearly 7 months.
10. The Court acknowledges the assistance of a report from the Social Welfare Division of the Ministry of Health. I am grateful for the care and thoroughness of the report prepared by the Social Welfare Officer and approved by the Casework Supervisor. You are the oldest of 5 children and have enjoyed a good relationship with your parents. You have had limited education, reaching class 4 in Malaita before returning to Honiara. You have not returned to your village school to continue your education although you express the wish to do so. There have been some difficulties at home because you have allowed yourself to be influenced by friends with whom you spend time rather than listening to the guidance of your parents. You have acknowledged this to the Social Worker.
11. As set out in paragraph 7, you chose to steal from the Deceased when your so called friends encouraged you to do so. You used violence in slapping him and that led to his death. The people who encouraged you to do that are not friends at all. You have taken the life of another person. His family have had to live with what you did. If you spend your time listening to those who have led you into trouble rather than listening to your parents, you will be spending more of your time in prison in the future.
12. The report confirms that you realise that your family loves you and that you know that you broke their heart with your actions. You cannot undo the harm you have caused but how you choose to spend the rest of your life and whether that will be a life in prison depends on you.
13. The report confirms that you will be safe with your family and that they will support you undertaking further education. I am advised that you “have a strong mind to take advantage of that.” I am told that you need to develop a knowledge of what is right and what is wrong. If you live by the principle that you treat others in the same way as you would like to be treated, you will soon learn the difference between right and wrong. You did not treat the man you killed as you would like to be treated. If you had, he would still be alive and you would not have spent the last 7 months in prison.

Authorities

14. The prosecution and your counsel have drawn the Court’s attention to a number of Court decisions to assist the Court in arriving at an appropriate sentence for your offending. In Regina v Baega [2012] SBHC 94, two 16 year olds were fighting using weapons. A person tried to stop the fight by telling the offender to run away. The offender threw a rock which hit the face of the Deceased, he fell to the ground. He was then struck with a chain in the chest by another person, then kicked while on the ground. The father of the Deceased went to the aid of his son. One of the offenders threw a rock at him as well, striking him in the head. The offender was sentenced to 5 years’ imprisonment. Half of that sentence was to be spent on conditional release in the care of a named person. In the event that the offender breached any of the conditions imposed, he was to be re-arrested and ordered to serve the balance of his sentence in prison.
15. In Regina v Maesala [2013] SBHC 111 the offender was an adult aged 50. He slapped an 18 year old person causing him to fall backwards onto a concrete slab. The victim died from the head injury caused in that fall. The offender pleaded guilty, there was no weapon involved, there was a single slap and reconciliation. A sentence of 3 years’ imprisonment was imposed.
16. The Court is also assisted by the decision of R v K [2006] SBHC 53 where the Chief Justice sentenced a person who was aged 14 and a half years at the time of his offending. The offence was murder arising in the course of the ethnic tensions in Solomon Islands. Half the sentence of 8 years’ imprisonment was to be served in the community in the care of a relative or fit person and quarterly reports were to be prepared by the Social Welfare Office.
17. In Regina v Rakaimua [1996] SBHC 100, the Court sentenced a person aged 12 at the time of the offending. He had proceeded to trial for murder, was acquitted on that charge but convicted of manslaughter. The Court said that there are many grades of seriousness when it comes to the offence of manslaughter. Without limiting the considerations, the Court recorded it must have regard to the age of the offender, previous criminal history, particularly involving violence, provocation, intoxication, the type of weapon if any, the persistence of the attack, the vulnerability of the victim and the relationship between the parties. The offender was committed to the care of his grandparents.
18. In Regina v Kalafu [2014] SBHC 53 two offenders who were both adults were sentenced for manslaughter. The Deceased tried to collect $50.00 change from the offenders and swore at them. He was punched, fell backwards and hit his head on the coral reef. He died from the injury to his head. Both pleaded guilty and were sentenced to 4 years’ imprisonment.
19. In Regina v Faisi [2006] SBHC 131 the offender pleaded guilty to manslaughter. He had punched the Deceased causing him to fall down. The offender punched another person then kicked the Deceased in the head. He was sentenced to 4 years’ imprisonment.
20. In Regina v Tungale [1999] SBHC 47, four offenders beat up the Deceased who they thought had been involved sexually with the wife of one of them. The Deceased died from the injuries he received. The offenders were acquitted of murder but convicted of manslaughter. They received sentences of between 3 and a half years and 5 years’ imprisonment.

Discussion

21. I accept that in terms of Rakaimua the circumstances of the offence in your case are at the lower end of seriousness. Had you been an adult, the starting point would have been 3 to 4 years’ imprisonment before considering mitigating features. You are not an adult and will not be an adult for another two and a half years. However, you chose to steal from an intoxicated victim being encouraged to do so by your peers. You used physical violence in the form of two slaps which caused him to fall and injure his head. He died from the injuries you caused.
22. Because you are still only 15 and your family is able to provide a safe and loving home for you, I am satisfied that in terms of the Act you can be dealt with in one of the ways set out in section 16 of the Act rather than being sentenced to serve further time in prison.
23. As I have recorded you have spent most of the last 7 months in custody. You know that unless you break the ties with those who encouraged your criminal offending you will have chosen a life where you will return to prison.
24. I am required to take into account the aggravating features and to reflect the need for general and specific deterrence. I take a starting point of 3 years’ imprisonment to reflect your offending. I reduce that by a third to reflect the mitigating factors which include your early guilty plea, your youth and the remorse you have shown. I also take into account your lack of previous convictions. Your sentence is then 2 years’ imprisonment which will be deemed to have started on 30 March 2021. I direct that the balance of your sentence from today is to be served in the community under the supervision of your parents. If your parents tell you to not associate with anyone you must not associate with that person. I direct you to undertake 50 hours of community work at a church or community organisation as directed by your parents.
25. You have indicated you want to continue your education and become someone with a good job in the future. Your family support you in that aim. A condition of the sentence that is to be imposed is that you continue your education in 2022, either at your village school or at a vocational school. I direct that the Social Welfare division of the Ministry of Health prepare four reports on your conduct and the community work and provide those reports to the High Court Registrar by 28 February 2022, 31 May 2022, 31 August 2022 and 30 November 2022. Your future is now in your hands.

Orders of the Court

1. The Defendant is sentenced to 2 years’ imprisonment deemed to have commenced on 30 March 2021.
2. The Defendant is to serve the remainder of his sentence from 21 October 2021 in the community under the supervision of his parents.
3. The Defendant is not to associate with anyone his parents direct him to not associate with.
4. The Defendant is to undertake 50 hours of community work at a church or community organisation as directed by his parents.
5. The father of the Defendant is requested to provide supervision of that community work.
6. The Defendant is directed to attend school in 2022, either in the village or at a vocational school.
7. The Social Welfare division of the Ministry of Health is directed to prepare reports on the conduct, education and community work undertaken by the Defendant and provide those reports to the High Court Registrar by 28 February 2022, 31 May 2022, 31 August 2022 and 30 November 2022.

By the Court
Justice Lawry
Puisne Judge