R v Liomauri [2021] SBHC 56; HCSI-CRC 522 of 2017 (10 June 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Liomauri
Citation:
Date of decision:	10 June 2021
Parties:	Regina v Allen Liomauri
Date of hearing:	31 May 2021
Court file number(s):	522 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. For the conviction of one count of murder contrary to section 200 of the Penal Code (cap 26), I hereby sentence you to life imprisonment. 2. I further order that the minimum sentence that you must serve in prison before you are entitled to pardon is one of 8 ½ years. 3. I further direct that the time spent in pre-trial custody is to be deducted from the minimum sentence. 4. Right of appeal
Representation:	Mr. Andrew Ega Kelesi for the Crown Mr. Lazarus Waroka for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 200 [cap 26]
Cases cited:	Ludawane v Regina [2017] SBCA 23, Regina v Ludawane [2010] SBHC 128, R v Sullivan [2001]1 Cr. App, Tii v Regina [2017] SBCA 6,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 522 of 2017

REGINA

V

ALLEN LIOMAURI

Date of Hearing: 31 May 2021
Date of Decision: 10 June 2021

Mr. Andrew Ega Kelesi for the Crown
Mr. Lazarus Waroka for the Defendant

SENTENCE

Bird PJ:

1. On the 6^th May 2021, I found the defendant guilty of the charge of murder contrary to section 200 of the Penal Code (cap 26) and have convicted him accordingly. He was thereby remanded in custody awaiting sentence.
2. Respective submission on minimum sentence from the prosecution and defense was heard by this court on the 31^st May 2021.
3. By virtue of the Court of Appeal case of Ludawane v Regina [2017] SBCA 23, SICOA- CRAC 37 of 2016, it is incumbent on the court to determine the minimum sentence on a murder charge. It is for that purpose that this sentence is hereby published.
4. In the case of R v Ludawane [2010] SBHC 128, the Honourable Chief Justice had cited with approval the decision of the Court of Appeal in R v Sullivan [2001] 1 Cr. App that noted three starting points on a murder charge depending on the range of seriousness of each offending. They include:
   1. The normal starting point - 12 years
   2. The higher starting point – 15-16 years
   3. The very serious cases – 30 years and above.
5. In order to weigh the gravity of seriousness in each case, the court is guided by the peculiar circumstances of each case. That requires the court to take into account the aggravating as well as the mitigating features in each offending.
6. In your case, it was submitted by Mr. Kelesi of counsel for the prosecution that the most notable aggravating feature is that a life was unnecessarily lost. This is an unfortunate incident whereby your unlawful action in assaulting and kicking the deceased had led to his death a few days after the incident.
7. It is also obvious that you were under the influence of alcohol on that occasion. Time and time again, serious criminal cases that come before this court are normally associated with the use and abuse of alcohol. If you had been sober on that date, you might just have been able to weigh what you could have done to the deceased. You were drunk and as the witnesses put it, you have acted somewhat erratically towards the deceased on that occasion. In the case of Tii v Regina [2017] SBCA 6, SICOA-CRAC 14 of 2016, the Court of Appeal had stated that intoxication may be an explanation for an offender’s conduct but not an excuse for it.
8. I am also informed by Mr. Kelesi that on the date of the incident, the deceased was unarmed. He was an elderly person and you were a young and robust person then.
9. On your behalf it was submitted by Mr. Waroka of counsel that taking into account the guidelines discussed in the Ludawane case, the appropriate starting point in your case should be the normal starting point of 12 years.
10. I have noted from your evidence in court that you have apologised to the deceased for what you did to him before his passing. That showed genuine remorse on your part and I commend you for that. I have also noted that the deceased had provoked the situation. Notwithstanding, you could have exercised restraint had you been in a sober state.
11. I have also heard that payment of compensation was made by your family members to the deceased’s family. In our culture, payment of compensation reconciles the disputing parties. That is seen as a plus for you.
12. I must also add that this court is very concerned about the delay in the prosecution of your case. The offending for which you are charged occurred on the 14^th January 2017. You were committed to this court on the 4^th May 2017. The information against you was filed in this court on the 30^th October 2017. From the court records, this matter was ready for trial since January 2018. The Case Listing Committee was directed to fix a trial date from the 26^th January 2018 and no date for trial was fixed. There is also record to show that the matter was fixed for reserve trial for the 2^nd to the 6^th December 2019 but for reasons unknown to me, the trial did not proceed.
13. This matter was referred to me in June 2020, and by that time a proposal was sent to the office of the DPP on a reduced charge. Notwithstanding and on the 1^st July 2020, a trial date was fixed for the 5^th April 2021 for five days. The trial of your matter was then conducted on the scheduled date.
14. I am mindful of the rights of an accused person under section 10 of our Constitution and I will not take lightly, any breach of the Constitutional provision in the administration of justice within our justice system. In this case, there has been a delay of more than 4 years before this case is finalised.
15. Having noted all of the above circumstances, I am of the view that the starting point in your case is the normal range of 12 years. For the long delay in the finalisation of your case, I will reduce that sentence by 3 ½ years.

Orders of the court

1. For the conviction of one count of murder contrary to section 200 of the Penal Code (cap 26), I hereby sentence you to life imprisonment.
2. I further order that the minimum sentence that you must serve in prison before you are entitled to pardon is one of 8 ½ years.
3. I further direct that the time spent in pre-trial custody is to be deducted from the minimum sentence.
4. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge