R v Idu [2021] SBHC 53; HCSI-CRC 251 of 2021 (1 July 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Idu
Citation:
Date of decision:	1 July 2021
Parties:	Regina v Alex Idu
Date of hearing:	1 July 2021
Court file number(s):	251 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant is convicted and sentenced to one year ten months’ imprisonment. 2. The whole of the sentence is to be suspended for 15 months pursuant to section 44 of the Penal Code. 3. Section 44(6) has been complied with.
Representation:	Mr A Meioko for the Crown Mr B Alasia for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Pena Code S199 (1), S 44, S 44 (6)
Cases cited:	R v Aitorea [2020] SBHC 111, Rongodala v Regina [2006] SBCA 2, Regina v Poa [2011] SBHC 8, Regina v Maesala [2013] SBHC 111, Regina v Faisi [2006] SBHC 131, Regina v Kalafu [2014] SBHC 53, Tapa'amae v R [2021] SBCA 12, Ofea v R [2019] SBCA 9

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case no. 251 of 2021

REGINA

V

ALEX IDU

Date of hearing: 1 July 2021
Date of Decision: 1 July 2021

Mr A Meioko for the Crown
Mr B Alasia for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Alex Idu, you are charged with one count of manslaughter contrary to section 199 (1) of the Penal Code. The maximum penalty for manslaughter is life imprisonment. You have pleaded guilty to the charge at the earliest opportunity. The information was filed in the High Court in Honiara and first presented in this Court on Monday 28 June 2021.

Facts

2. On 29 June 2021 your counsel and the Crown filed a Summary of Facts both you and the Crown agreed upon. On 17 January 2021 the Deceased had argued with his wife then consumed alcohol to the point of intoxication. Between 9.30pm and 10.00pm while intoxicated the Deceased was walking along the road. He was shouting and abusive towards his wife. When in front of a market stall he removed his bag and hit the wall of the stall. You approached the Deceased and told him to stop causing a disturbance. The Deceased advanced towards you and swung a punch which missed you. You then punched the Deceased with your right fist striking the left side cheek of the Deceased. He fell to the ground. He could not get up. Attempts to resuscitate him were unsuccessful. He was carried to his house the taken to hospital. Where he was pronounced dead.
3. The post mortem report indicated that an autopsy was carried out on 19 January 2021. The Deceased died from bleeding within the extradural and subdural spaces covering the brain. The pathologist explained that the Deceased had received blunt force trauma to the left side of face. The trauma caused sudden movement of the brain tearing blood vessels which in turn caused the bleeding. You were formally arrested on 21 January 2021 and have been held in custody since then.

Aggravating and mitigating features

4. The Prosecution has raised two matters said to be aggravating. The first is the loss of life. While recognizing that there has been a loss of life I cannot regard that as an aggravating feature as it clearly forms part of the essential ingredients of the charge of manslaughter.
5. The second feature said to be aggravating is the fact that the offence occurred at night. I acknowledge that this is so however in the circumstances of this case it was the actions of the Deceased that were responded to by you. You did not go out at night in order to commit the offence.
6. Your counsel has submitted that you have pleaded guilty at an early stage and I accept it was at the earliest opportunity. I note that the Police originally charged you with murder. It is not clear why they did as the circumstances of this case would make such a charge inappropriate. The prosecution also acknowledges that you were co-operative with the Police from the start of their enquiries.
7. You have no previous convictions. I am told this is the first time you have “come into trouble with the law”.
8. Your counsel submits that you are remorseful and have demonstrated your remorse. From my observations and the material placed before me, I accept that this is so. The fact of your early guilty plea to the charge in the circumstances of the Deceased being the aggressor and abusive, throwing a punch at you in response to being told to not cause a disturbance when he was clearly causing a disturbance at night supports that submission.
9. I am told that the family of the Deceased has refused to reconcile with you. That is unfortunate. I express the hope that in time they will appreciate that although there was a loss of life it was the conduct of the Deceased that led to the tragic events of that night.
10. I understand you have been in custody of the Police, then Corrections, since 18 January 2021.

Starting point

11. Both Counsel have referred to R v Aitorea [2020] SBHC 111. That case has some parallels with yours so far as the facts are concerned. The prisoner in that case was involved in an argument with his drunk abusive brother who was armed with a small knife. In the course of the struggle the prisoner took the knife and stabbed the deceased. The Court took a starting point of 4 years’ imprisonment which was reduced to 2 years because of mitigating features.
12. In addition, Counsel has referred to Regina v Rongodala [2006] SBCA where the Court of Appeal set out 6 factors that impact on the level of sentence for manslaughter. None of those increase what would otherwise be the sentence in the present case.
13. Counsel referred to Regina v Poa [2011] SBHC 8 and accepted that that case represents the bottom of the range available. The offender in Poa had been drinking with the deceased and pushed him, he fell and hit his head leading to his death. He pleaded guilty at the earliest opportunity and was sentenced to 2 and a half years’ imprisonment.
14. In Regina v Maesala [2013] SBHC 111 the offender had slapped the deceased causing him to fall backwards onto a concrete slab. The deceased received a head injury which caused his death. There was no weapon, a single slap, a guilty plea and reconciliation. Those mitigating features reduced the sentence to 3 years’ imprisonment.
15. In Regina v Faisi [2006] SBHC 131 the offender punched the deceased in the forehead causing him to fall to the ground. The offender assaulted and chased a friend of the deceased then returned to kick the deceased to the head. The offender pleaded guilty. There was no use of a weapon. The final sentence after mitigation was four years’ imprisonment.
16. In Regina v Kalafu [2014] SBHC 53, two accused had been with the deceased drinking alcohol, later he followed then, swore at them and threw a punch at one of them. The offenders punched the deceased who fell back and hit his head on the coral reef. He fell unconscious and died. The Judge considered that imprisonment was inevitable and the range would be between 3 to 4 years. He imposed 4 years’ imprisonment on both defendants.
17. The Crown referred to Popoe v Regina [2015] SBCA 20 where death resulted from an offender sitting on his wife causing a rupture to her spleen. I regard this case as more serious than the present as it arose in the circumstances of domestic violence. The Court of Appeal reduced a sentence following trial from 7 to 6 years.
18. The Crown also referred to Tapa’amae v Regina [2021] 12, where the Court of Appeal reduced a sentence from 10 years to 6 years. I regard that case as significantly more serious than the present because of the actions of the offender, knocking the drunken deceased off the wharf and leaving him to drown in the water.
19. Finally, the Crown referred to Ofea v Regina [2019] SBCA 9 where the Court of Appeal overturned a conviction for murder and imposed 8 years’ imprisonment for manslaughter in circumstances more serious than the present.

Discussion

20. There has been a loss of life. I accept that the death of the Deceased is a tragedy. It resulted from a single punch from you at a time when he was intoxicated and abusive and following his throwing a punch at you. The Crown has submitted that there is a range of sentences imposed for manslaughter from 2 and a half years to 8 years, as is clear from the cases referred to above.
21. Your previous good character satisfies me that you are not in need of a sentence to specifically deter you from similar offending in the future. However, the offending is of sufficient seriousness that the Court has no option but to consider a sentence of imprisonment.
22. I take a starting point of 4 years’ imprisonment. There are no aggravating features except that this occurred at night. I deduct 12 months to reflect your guilty plea entered at the earliest opportunity. The guilty plea saves the Court the expense of a hearing, it saves the family of the Deceased and the witnesses the stress of reliving the events and is a recognition of your acceptance of your criminal conduct.
23. You have already been in custody for more than five months which making allowances for remission is equivalent to a sentence of more than eight months. I therefore deduct 8 months to reflect that period already spent in custody. For your previous good record, remorse and the other mitigating features identified I allow a further 6 months’ reduction. That leaves a final sentence of 1 year 10 months’ imprisonment.
24. I then turn to section 44 of the Penal Code. I am satisfied that the offence is sufficiently serious that it warrants a term of imprisonment. It is necessary to remind others that violence used in the community can have serious consequences beyond what may be intended. However, the factors I have taken into account in mitigation, in particular your early guilty plea, your previous good character all persuade me that this is a case where the sentence can be fully suspended. This means you will be sentenced to 1 year ten months’ imprisonment. That sentence will not take effect unless during the next 15 months you commit another offence punishable with imprisonment and a Court orders under section 45 that the original sentence shall take effect. The sentence now suspended takes effect from today.

Orders of the Court

1. The Defendant is convicted and sentenced to one year ten months’ imprisonment.
2. The whole of the sentence is to be suspended for 15 months pursuant to section 44 of the Penal Code.
3. Section 44(6) has been complied with.

By the Court
Justice Howard Lawry PJ