R v Fiuka [2021] SBHC 4; HCSI-CRC 428 of 2020 (5 February 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Fiuka
Citation:
Date of decision:	5 February 2021
Parties:	Regina v Gordon Sale Fiuka
Date of hearing:	2 February 2021
Court file number(s):	428 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	1. The defendant is convicted on one count of murder contrary to section 200 of the Penal Code [cap 26] 2. the defendant is hereby sentenced to life imprisonment 3. The minimum term to be served before the defendant is entitled for parole is one of 16 years. Time spent in pre-trial custody is to be taken into account under order 3 above
Representation:	Mr. John Wesley Zoze and Mr. Andrew Meioko for the Prosecution Mr. George Gray for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code section 200 [cap 26]
Cases cited:	R v Ludawane (Ludawane case), [2017] SBCA 23, R v Sullivan [2005] 1 Cr App

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 428 of 2020

REGINA

V

GORDON SALE FIUKA

Date of Hearing: 2 February 2021
Date of Decision: 5 February 2021

Mr. John Wesley Zoze and Mr. Andrew Meioko for the Prosecution
Mr. George Gray for the Accused

MINIMUM SENTENCE

Bird PJ:

1. By information filed on the 26^th January 2021, this defendant is charged with the offence of murder contrary to section 200 of the Penal Code (cap 26). He had initially pleaded not guilty to the murder charge.
2. On the 2^nd February 2021, the defendant was re-arraigned and he had entered a guilty plea. He was thereby convicted as charged.
3. For the offence of murder, the maximum sentence to be imposed upon conviction is the mandatory life imprisonment. By the case authority of R v Ludawane (Ludawane case), [2017] SBCA 23, SICOA - CRAC 37 of 2016, I am nonetheless required to determine the minimum sentence that this defendant shall serve in prison before he can be released on parole.
4. I have noted from the facts of this case, that you are married to the deceased. You have two daughters and three sons. On Sunday the 5^th January 2020, there was a domestic argument between the deceased and yourself. Your two daughters, Malina Gasimata and Karlyn Wainasago were present. During the course of argument, there were exchanges of words. You then became angry, got hold of a small knife measuring 15 to 20 cm long, walked over to the deceased in the room and in the presence of your two daughters, stabbed the deceased several times with the knife. You then ran away and paddled to Ughele also in the Western Province.
5. The autopsy report prepared by Doctor Gordon Koburu showed multiple stab wounds on various parts of the deceased body. According to that report, the cause of death was from traumatic bleeding sustained due to multiple stab wounds.
6. Having stated the facts and in discussing the issue of the minimum term for this defendant, I am required to take into consideration the aggravating and mitigating features in your offending as well as the sentencing regimes discussed by the Court of Appeal in the Ludawane case.
7. In the Ludawane case, the Honourable Chief Justice had cited with approval the decision of the Court of Appeal in R v Sullivan [2005] 1 Cr App. R (S.) 67, (“the Sullivan case”). In that case, three starting points were discussed depending on the seriousness of each case. They included:
   1. Exceptionally high in seriousness, the appropriate sentence would be one of life;
   2. If the level of seriousness is particularly high, the starting point is one of 30 years;
   3. In cases where sentences can be regarded as average, normal or unexceptional, sentences would be around 14 years.
8. After having adopted the principles in the Sullivan case, the Court of Appeal in the Ludawane case had factored in five features that aggravate the offending. Those features included the age of the victim, relationship with the offender, obligation of the offender towards the victim, sustained nature of the conduct and sheer brutality against the victim. I also adopt the comments by the Court of Appeal in that case.
9. From the above discussion, I have heard from the prosecution that there are a number of aggravating features in your offending. It is a serious aggravating feature in this case that you are the husband of the deceased. As the husband, you are supposed to have provided safety and security for the deceased and your children in your home. Being a woman, your wife was in a very vulnerable state. She was not armed and was defenceless on that day. What you did to the deceased was horrific and gruesome. You killed your wife in cold blood.
10. It was further submitted by the prosecution that another aggravating feature in your offending is the visible physical suffering that the deceased might have experienced when she was stabbed several times. The autopsy report and the album of photographs had shown the extent of the injuries sustained by the deceased during the attack. It would have been obvious that the deceased was writhing in pain, struggling for breath and had died in agony, a real painful death. You nonetheless had stood by, doing nothing and then escaped.
11. Another aggravating feature is the use of a knife on an unarmed and defenceless woman. The nature of the various injuries on the deceased had shown a senseless killing of a person known to you as your wife. The use of bare hands could have killed your wife. The use of the knife, a lethal weapon on your wife is barbaric and torturous. You have inflicted a total of nine stab wounds on the deceased body.
12. The prosecution had also submitted that the commission of the offending in the presence of your two daughters Malina and Karlyn and other family members is another aggravating feature. The incident was horrific and barbaric and the two daughters and other family members were watching helplessly as you continuously stabbed the deceased.
13. In mitigation, it was submitted by your lawyer that you have pleaded guilty to the offending at first opportunity. Your early guilty plea shows that you are sorry for what you did. It also means that you have owned up to your offending and you are willing to take responsibility of your actions. It also saves your two daughters from coming to court and recounting the horrific and barbaric scenes that you did to your deceased wife and their mother.
14. You are a person without any previous convictions. You have lived a crime free life until that fateful day when during an argument, you stabbed your wife to death. I sincerely hope that you would have learnt from your mistake and would choose to live a more respectable and dignified life in future.
15. I have also heard from your lawyer your personal reasons why you behaved in a most ruthless and erratic manner on the day of the offending. I must however state that those reasons do not take away or diminish your criminal responsibility in this case.
16. What you did to your wife and the mother of your five children on that fateful day is inexcusable. You have allowed your emotions to overtake you and killed your wife in the presence of your two daughters. You have turned the comfort of your home to a crime scene. It will take a very long time before your two daughters could forget what they saw on that fateful day.
17. Having discussed the above principles together with the aggravating features in your case, I am of the view that the starting point in your case will be one of 18 years. For the mitigating features that were raised on your behalf by your lawyer, I will reduce that sentence by 2 years. I therefore direct that the minimum sentence that you must serve in prison before you will be entitled for parole is one of 16 years.

Orders of the court

1. The defendant is convicted on one count of murder contrary to section 200 of the Penal Code (cap 26).
2. The defendant is hereby sentenced to life imprisonment.
3. The minimum term to be served before the defendant is entitled for parole is one of 16 years.
4. Time spent in pre-trial custody is to be taken into account under order 3 above.

THE COURT
Justice Maelyn Bird
Puisne Judge