R v Tema'ungatuha [2021] SBHC 127; HCSI-CRC 148 of 2020 (20 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tema’ungatuha
Citation:
Date of decision:	20 October 2021
Parties:	Regina v Junior Saueha Tema’ungatuha and Owen Samatai Tino
Date of hearing:	3 August 2021
Court file number(s):	148 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendants Mr. Junior Saueha Tema’ungatuha and Mr. Owen Samatai Tino are hereby convicted of one of manslaughter contrary to section 199 (1) of the Penal Code (cap 26). 2. The defendant Mr. Junior Saueha Tema’ungatuha is hereby sentenced to 4 years and 8 months imprisonment. 3. The defendant Mr. Owen Samatai Tino is hereby sentenced to 5 years and 3 months imprisonment. 4. I direct that the time spent in pre-trial custody be deducted from the total sentence. 5. Right of appeal.
Representation:	Mrs Margret Suifa’asia for the Crown Mrs Martha Manaka for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 200, S 199 (1) [cap 26]
Cases cited:	Rongodala v Regina [2006] SBCA 2, Popoe v Regina [2015] SBCA 20

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 148 of 2020

REGINA

V

JUNIOR SAUEHA TEMA’UNGATUHA AND OWEN SAMATAI TINO

Date Hearing: 3 August 2021
Date of Decision: 20 October 2021

Mrs Margret Suifa’asia for the Crown
Mrs. Martha Manaka for the Defendant

SENTENCE

Bird PJ:

1. The defendants were initially charged with the offence of murder contrary to section 200 of the Penal Code (cap 26). Upon negotiation between the parties, a nolle prosequi was filed in respect of the murder charge and the defendants were then charged by an amended information with the offence of manslaughter contrary to section 199 (1) of the Penal Code (cap 26). They both pleaded guilty to manslaughter on the 3^rd August 2021 and were respectively convicted. On that date, the agreed facts were supposed to be settled and sentencing submissions were to be made in court on the 17^th August 2021.
2. Due to reasons beyond the court’s control, the agreed facts were merely settled and filed on the 7^th September 2021 and the crown filed their sentencing submissions on the 8^th September 2021. After several adjournments, Mrs Manaka filed the defendants sentencing submissions on the 6^th October 2021. I must say that the court is concerned that lawyers are not able to take court direction orders seriously. The court was scheduled to hand down its sentence on the 8^th October 2021 but was unable to because of the very late filing of submissions by Mrs. Manaka. It must be made absolutely clear that an accused person’s right to have his case heard and finalised by an impartial court is protected under section 10 of the Constitution. Lawyers are legally obliged to assist the courts in the disposal of cases in a timely manner. Lawyers have a duty to the courts and their clients to deal with cases effectively and efficiently. I do not expect lawyers to cause further delays to the quick disposal of criminal cases.
3. Having said the above, I must tell both of you that the offence of manslaughter is a felony and carries a maximum penalty of life imprisonment. Notwithstanding, each case depends on each sets of facts and circumstances and the courts are empowered under section 24 (2) of the Penal Code (cap 26) to impose a shorter term of imprisonment than the one prescribed.
4. The facts of your case as was agreed to by both counsel for the prosecution and the defence are the following:

The deceased is one Sihatorangan Manullang, an Indonesian national. He was employed by Bintan Mining SI Ltd at Bellona Island, Renbel Province.

On the 25^th January 2020, at about 11 am, Mr. Anthony Teikahoki was returning in his vehicle from the airport when he met and picked you. Both of you were under the influence of alcohol. On your way, the vehicle broke down and you left, headed for Namalaga Camp in West Rennell. At the camp you met the mechanic, Mr. Robert Alu and asked for a rope to tow the vehicle. One of you had got a chain block and an iron tool to be used to lock the chain block. You then left the workshop.

At that time the deceased had driven by in a dump truck and you stopped him. You both boarded the truck. As you were driving along, the deceased asked you where you were going. You told him you were returning to your broken down vehicle. At that point in time, Mr. Tino asked the deceased where he was going. The deceased responded and told you he was going to load bauxite at Ngakea. Mr Junior Saueha then told the deceased that the company did not obtain consent from your tribe to carry out mining operation at Ngakea. You insisted that the deceased should not go to Ngakea to load the bauxite. There was an argument and the deceased insisted to travel to Ngakea.

In the cause of your argument, the deceased stopped and got out of the vehicle. He swore at you both telling you to fuck devils and ancestors at Ngakea. He also told you to fuck your mother and father. He repeated those swearing words to both of you. You were angered by the swearing and fought with the deceased. The deceased was bigger and stronger than both of you. He punched Mr. Tino on the chest and Mr. Tino fell to the ground. As Mr. Tino was struggling to get up from the ground, the deceased advanced toward him intending to further assault him. In an attempt to defend himself, Mr. Tino swayed the iron tool and it landed on the head of the deceased. After that you both ran away.

5. Having stated the facts in your case. I will now discuss the aggravating and mitigating features in your offending. I am told by Mrs. Suifa’asia of the crown that you were under the influence of alcohol at the time of offending. I must say that time and time again the courts have reminded citizens about their actions whilst under the influence of alcohol. Whilst in that state you are unable to exercise caution and restraint and many times you get involved in very serious confrontations with others which then lead to the death of those other persons. What had happened is very unfortunate.
6. Ii is also submitted by the crown that apart from the above aggravating feature, is the fact that you have both instigated the argument with the deceased. The deceased was just an employee of Bintan Mining SI Limited. On that fateful day he was carrying out the job he was paid for to perform. The land issue that you raised with him was outside of his control. He is not the owner of the company so that he will be in a position to consider your request. He could be terminated from employment if he goes against his superiors demand and expectation.
7. It is further submitted by the crown that you have used an iron tool to assault the deceased. The use of the iron tool on the deceased’s head had caused serious injuries to him and he died as a result.
8. On your behalf, it was submitted by Mrs Manaka of counsel that you have pleaded guilty to the offending at first opportunity. Your early guilty pleas not only show remorse on your part but that you have both owned up to your offending and you are willing to face the consequences of your actions. Your guilty pleas also save the court’s time and resources in conducting a trial into your case. I give you credit for your early guilty pleas.
9. You both had no previous conviction and you were persons of good character until this offending. I have also noted that you are both youthful offenders. You were 25 years and 21 years respectively at the time of offending. Your youthfulness could have contributed to your offending. As young offenders, there is high possibility of rehabilitation of your respective conduct and behaviour. So apart of just punishing you, the court must also take into account your possible prospect of rehabilitation. Learn from this mistake. Take this opportunity to change your conduct and behaviour for your own future betterment. My advice to you is to refrain from taking alcoholic drinks and try to engage in endeavours that will be of assistance to you, your families and your communities at large.
10. I have noted the circumstances of your offending. From the agreed, you both initiated the argument with the deceased. Having said that I have also noted that the deceased had sworn at you which then led to a fight between you and the deceased. The deceased was a well-built man and he hit Mr Owen. Mr. Owen fell to the ground and whilst you were struggling to get up, the deceased advanced towards you to further assault you. It was at that instant that you hit the deceased’s head with the iron tool that you were holding. That single hit had injured the deceased’s head and he died as a result. You then both ran away. There was no further attack on the deceased. I have noted that apart from the fight between you and the deceased, Mr. Junior was just an accomplice. Your respective culpability in the commission of the offence will be dealt with by the court in actual sentence.
11. It is further submitted on your behalf that you have been remanded in custody since the 28^th January 2020 and you have both remained in custody since. The court will take into account the time you have spent in pre-trial custody in your sentences.
12. In order to further assist the court in sentencing you, I have been referred to in a number of similar cases previously dealt with by this court. In the case of Rongodala v Regina [2006] SBCA 2, CA-CRAC 008 of 2006, the Court of Appeal stated and I quote, “in determining the appropriate penalty many factors have to be taken into account. Without suggesting that these are the only consideration, ordinarily a Court would have regard to the age of the offender, previous criminal history of the offender particularly there were previous convictions involving violence, intoxication, type of weapon if any used, persistence of the attack, vulnerability and the relationship between the parties”.
13. In the case of John Popoe v Regina [2015] SBCA 20, the appellant killed his wife by running onto her and sat on her shoulder. A sentence of 10 years imprisonment was reduced by the Court of Appeal to one of 6 years.
14. In this particular case, both defendants are youthful offenders ages 25 and 21 years respectively. They both have no previous conviction. I therefore put your starting point at 6 years. For the aggravating features present in your case, and for the respective culpability of each of your unlawful acts, I would increase Mr. Junior’s sentence by 6 months. I would likewise increase Mr. Tino’s sentence by 12 months.
15. For the mitigating features in your case and especially your early guilty plea, I would reduce your respective sentences by 20 months. Mr. Junior you are therefore sentenced to 4 years and 8 months imprisonment. Mr. Tino is hereby sentenced to 5 years 3 months imprisonment. Time spent in pre-trial custody is to be deducted from the total sentence.

Orders of the court

1. The defendants Mr. Junior Saueha Tema’ungatuha and Mr. Owen Samatai Tino are hereby convicted of one of manslaughter contrary to section 199 (1) of the Penal Code (cap 26).
2. The defendant Mr. Junior Saueha Tema’ungatuha is hereby sentenced to 4 years and 8 months imprisonment.
3. The defendant Mr. Owen Samatai Tino is hereby sentenced to 5 years and 3 months imprisonment.
4. I direct that the time spent in pre-trial custody be deducted from the total sentence.
5. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge