R v Wale [2021] SBHC 41; HCSI-CRC 504 of 2019 (5 May 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Wale
Citation:
Date of decision:	5 May 2021
Parties:	Regina v John Wale
Date of hearing:	26 April 2021
Court file number(s):	504 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is hereby sentenced to life imprisonment for the offence of murder contrary to section 200 of the Penal Code (cap 26). 2. The minimum sentence that the defendant must serve before he is entitled to parole is one of 11 ½ years imprisonment. 3. The defendant is sentenced to 2 years imprisonment for the offence of unlawful wounding contrary to section 229 of the Penal Code (cap 26). 4. The defendant is sentenced to 7 months imprisonment for the offence of escape from lawful custody contrary to section 125 of the Penal Code (cap 26). 5. The sentences in counts 2 and 3 are to be served concurrent to the sentence in court 1. 6. I direct that the time spent in pre-trial custody is to be deducted from the total sentence. 7. Right of appeal
Representation:	Mr. Andrew Ega Kelesi for the Crown Mr. Henry Kausimae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code Section 229, Section 125 and Section 200 [cap 26]
Cases cited:	Ludawane v Regina [2017] SBCA 23, Tii v Regina [2017] SBCA 6

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 504 of 2019

REGINA

V

JOHN WALE

Date of Hearing: 26 April 2021
Date of Decision: 5 May 2021

Mr. Andrew Ega Kelesi for the Crown
Mr. Henry Kausimae for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr. John Wale has been found guilty after trial for the following offences
   • Count 1: Murder contrary to section 200 of the Penal Code (cap 26),
   • Count 2: Unlawful wounding contrary to section 229 of the Penal Code (cap 26) and
   • Count 3: Resisting arrest and escape contrary to section 125 of the Penal Code (cap 26).
   • Having been found guilty, the defendant was thereby convicted accordingly.
2. Pursuant to the conviction on the murder charge, both counsel were required to make submissions on minimum sentence. Sentencing submissions were also required on counts 2 and 3.
3. The maximum sentence that the court would impose upon conviction on a murder charge is the mandatory term of life imprisonment. By virtue of the Court of Appeal decision in the case of Ludawane v Regina [2017] SBCA 23, SICOA- CRAC 37 of 2016, and upon conviction on a murder charge, this court is required to decide on the minimum sentence that should be imposed in each case. It is for that purpose that submissions were required by the court.
4. The Ludawane case is the authority on point in this jurisdiction. The Court of Appeal in that case had outlined three categories of starting points for a charge of murder depending on the seriousness of the offending. The first category of cases referred to, are the exceptionally high in seriousness. This category of cases warrants one of life imprisonment. The second category is where the seriousness of the offending is particularly high. The starting point would be about 15/16 years. The third category is where the seriousness can be regarded as average, normal or unexceptional. A starting in such cases is one of 12 years imprisonment.

Aggravating features

5. In the case against you, there is a presence of several aggravating features. The most notable, is the fact that you were armed with a lethal weapon, a knife on that occasion. You used the knife to assault two people. One of the victims died as a result of the assault and the other received an injury to his left wrist.
6. Secondly, you were under the influence of alcohol when you committed the offending. In that regard, I am referred to what the Court of Appeal stated in the case of Tii v Regina [2017] SBCA 6, SICOA-CRAC 14 of 2016. In that case, the said court stated that intoxication may be an explanation for an offender’s conduct but not an excuse for it.
7. It was also submitted by the crown that the circumstances of the offending were serious because there was a loss of life as a result of your attack. Your attack on the deceased was fatal. Notwithstanding what doctors had tried to perform on him, the deceased died for loss of blood caused by the stab wounds that you inflicted on him. I have also noted that at the time of offending, the deceased was unarmed.

Mitigating factors

8. In trying to balance the circumstances in your case, it is submitted by Mr. Kausimae of counsel that you are a first offender. You have no previous criminal history. You are a person of previous good character until that fateful day when you stabbed the deceased and he died as a result. You have also injured another person, namely Nelson Aike.
9. I am told that you are a young person. You were 19 when you committed the offending. You are now 21 years old. I am further told that after leaving Class 6, you attended Afutara SDA Vocational School and did carpentry. You came to Honiara to do your practical attachment when you committed the offending. It is very sad and unfortunate that your bright future has come to an abrupt stop because of the offending. I have also heard that you were engaged to get married but for this offending. Time and time again, serious offences like murder are committed whilst offenders are under the influence of alcohol. I urge such offenders to control your drinking habits and do not allow alcohol to take control of you. A lot of such incidences could have been avoided if people drink responsibly. If it is difficult to control yourself, it would have been better to refrain from taking alcoholic drinks.
10. I have heard that your action in stabbing the deceased was done on the spur of a moment. It lacks pre-meditation. It arose from a tragic turn of events and loss of temper and self-control mostly because you were intoxicated with liquor. I have also noted that there was no intention to kill but that your unlawful action had led to the death of the deceased.
11. According to the particular circumstances of your case and having regard to the discussions and guideline set out in the Ludawane case, I am of the view that the starting point in this case is in the lower range of 12 years imprisonment. For the aggravating features in your offending, I increase that sentence by 1 ½ years. For the mitigating features and especially your young age and that there is a prospect of rehabilitation, I reduce that sentence by 2 years. I therefore hold that the minimum sentence you will serve before you are entitled for parole is one of 11 ½ years imprisonment.
12. For the offence of unlawful wounding pursuant to section 229 of the Penal Code (cap) and having regard to the aggravating and mitigating features discussed above, I hereby impose a sentence of 2 years imprisonment to be served concurrent with the sentence in count 1.
13. For the offence of escape from lawful custody, pursuant to section 125 of the Penal Code (cap 26), and having regard to the circumstances of the offending, I hereby impose a sentence of 7 months imprisonment. I direct that the sentence is to be served concurrent to count 1.

Orders of the court

1. The defendant is hereby sentenced to life imprisonment for the offence of murder contrary to section 200 of the Penal Code (cap 26).
2. The minimum sentence that the defendant must serve before he is entitled to parole is one of 11 ½ years imprisonment.
3. The defendant is sentenced to 2 years imprisonment for the offence of unlawful wounding contrary to section 229 of the Penal Code (cap 26).
4. The defendant is sentenced to 7 months imprisonment for the offence of escape from lawful custody contrary to section 125 of the Penal Code (cap 26).
5. The sentences in counts 2 and 3 are to be served concurrent to the sentence in court 1.
6. I direct that the time spent in pre-trial custody is to be deducted from the total sentence.
7. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge