R v Ghapuika [2021] SBHC 63; HCSI-CRC 266 of 2021 (23 August 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Ghapuika
Citation:
Date of decision:	23 August 2021
Parties:	Regina v Ashley Ghapuika
Date of hearing:	3 August 2021
Court file number(s):	266 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
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 sentence that the defendant will serve before he is entitled to parole is one of 12 years. 4. I direct that the time spent in pre-trial custody be deducted from the minimum period in Order 3 above. 5. Right of appeal
Representation:	Mrs. Margret Suifa’asia and Ms. Martha Mutukera for the Crown Mr. Allan Tinoni for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code s 200 [cap 26]
Cases cited:	Ludawane v Regina [2017] SBCA 23, R v Lokete [2021] SBHC 2, R v Fiuka [2021] SBHC 4

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 266

REGINA

V

ASHLEY GHAPUIKA

Date of Hearing: 3 August 2021
Date of Decision: 23 August 2021

Mrs. Margret Suifa’asia and Ms. Martha Mutukera for the Crown
Mr. Allan Tinoni for the Defendant

SENTENCE

Bird PJ:

1. By information filed on the 17^th June 2021, the defendant, Mr. Ashley Ghapuika is indicted with one count of murder contrary to section 200 of the Penal Code (cap 26). Upon being arraigned on the information, the defendant had entered a guilty plea. He was thereby convicted accordingly. I must mention here that the court has been waiting on Mr. Tinoni to file the defendant’s submission on minimum sentence. The submission was supposed to be filed on the 4^th August 2021. Reminder email was sent to Mr. Tinoni but there was no response to the courts email. The submission was finally filed at the 11^th hour on the 20^th August 2021 at 3.00pm.
2. On that note, lawyers are reminded to take their professional duties to the courts and their clients seriously. They must comply with court direction orders. When lawyers do not work diligently as expected and to the required standard, it affects the courts and all stake holders s in the proper administration of justice.
3. The charge of murder is one of the most serious of offences prescribed under the laws in our country. To manifest its seriousness, the maximum sentence that the courts will impose is one of mandatory life imprisonment. Due to the recent development of our laws in the country and by virtue of the Court of Appeal case of Ludawane v Regina [2017] SBCA 23, SICOA-CRAC 37 of 2018, the court is required to determine the minimum sentence on a murder charge. This ruling is for that purpose.
4. The facts of your case as presented to this court are the following:

The deceased is the late Henry Angikimua from Avatai Village, West Rennell, Renbel Province. You are also from the same village and you were 43 years old at the time of offending. The deceased is your nephew.
On Monday 15^th February 2021, between 7am to 8am, the deceased and one James Tautai went to light their solbako smoke at Loise’s kitchen. Whilst the deceased and James were standing in that kitchen with their smoke, you went into the kitchen holding a 24 inches long bush knife. You went and stood behind the deceased and cut the deceased behind his neck and pulled out the knife full of blood. The deceased slowly fell down on the floor of the kitchen. You were still standing behind him. You held the knife and hid it behind your legs. You then retreated to the kitchen door, went out from the kitchen and escaped along the road towards Lake Tegano. The deceased was transported to Tigoa Mini Hospital but died.
According to the autopsy report dated 16^th February 2021 by Dr Roy Maraka, it shows injuries to the neck causing death. The injuries included:

• Horizontal slash wound, 210mm in length and 95 mm deep, at the back of the neck. It completely cuts the muscles and neck spine.
• Abrasions, 70 x 1mm on the left forehead anteriorly.
• Abrasions, 140 x 300mm, on the right forearm, posteriorly

The autopsy report also shows the cut on the neck spine was around the 4^th and 5^th cervical vertebrae.

5. Upon conviction for the offence of murder, the courts are obligated to impose the mandatory life imprisonment on an offender. Apart from imposing that sentence, the court is also required to determine and consider the minimum sentence that the accused must serve before he/she is entitled for parole. In order for me to deal with that issue, I must take into account the facts of your case, the aggravating and the mitigating features together with case authorities in this jurisdiction.
6. It is submitted by Mrs. Suifa’asia of the Crown that the most notable of the aggravating feature is the use of the bush knife on an unarmed person. The bush knife is a lethal weapon and its use had led to the death of the deceased.
7. The second aggravating feature is the seriousness of the injury inflicted. It is obvious from the medical report that the deceased sustained a horizontal slash wound to his neck around the 4^th to 5^th cervical vertebrae measuring 210mm in length and 95mm in depth. There was also presence of abrasions on the deceased’s left forehead anteriorly and right forearm posteriorly. With the severity of the injuries, there was no chance of survival of the deceased.
8. It is also submitted that the victim was in a particularly vulnerable position. You were standing behind the deceased and the deceased was unprepared for the attack. The deceased was an unarmed man and he was defenceless on that fateful day.
9. I am also informed that you are the deceased’s uncle. Being an uncle, you are placed in a position of trust to the deceased. What you did to your nephew is least expected by your family and the community.
10. On your behalf, it was submitted by counsel that you have pleaded guilty to this offending at first opportunity. I give you credit for your early guilty plea. Your early guilty is not only a sign of remorse but that you have owned up to the offending and that you are willing to face the consequences of your action. It also saves court time and resources in conducting a trial into the matter.
11. You are a first offender and you have no criminal history behind you. I commend you for living a life free from crime for the most part of your life. I urge you that after your serve your time in incarceration, be a changed man. Learn to respect yourself so that you can have respect for others.
12. Your lawyer had submitted that you are very sorry for what you did to your nephew. For that purpose you intend to reconcile with your family members at home. I encourage you to do that. You can be assisted to deal with reconciliation through certain organisations. I urge you to work with Correctional Officers to assist you in that regard.
13. I have also taken note that whilst in remand in custody, you have involved yourself in prayer activities and bible studies. I must say that it is a way forward for yourself and you are expected to live a changed life onwards. Learn from this mistake and try not to reoffend in future.
14. In this sentence, I am inclined to take cognisance of the various starting points that could be imposed as stated in the Ludawane case cited above. Setting the guidelines in that case, the Court of Appeal outlined various starting points, the lowest being one of 12 years. The mid-range sentence was one of 14-15 years. Particularly high in seriousness was one of 30 years and the exceptionally high would be one of life time.
15. The sentence that the court will impose against you will depend on the facts, the aggravating and the mitigating features in your case. For guidance, I will also take into account previous cases of similar nature that this court had dealt with.
16. In the case of R v Lokete [2021] SBHC 2, HCSI-CRC 538 of 20019, the defendant and the deceased were blood brothers. The defendant hit the back of the deceased’s neck with an axe. The minimum imposed in that case was 11 ½ years.
17. In the case of R v Fiuka [2021] SBHC 4, HCSI-CRC 428 of 2020, the defendant was the deceased husband. The defendant stabbed the deceased several times after a domestic argument. The minimum sentence imposed by the court in that case was one of 16 years.
18. In your case, your lawyer did not make any submission on the reason for your attack on your nephew on that fateful day. From the circumstances as were presented to the court, you made an unprovoked attack on the deceased and your action is deplored by the court. For the aggravating features in your case, I put your starting point at 14 years. For the mitigating features advanced in your case and especially your early guilty plea, I reduce your sentence by 2 years. The maximum sentence that you must serve in prison before you are entitled for parole is one of 12 year.

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 sentence that the defendant will serve before he is entitled to parole is one of 12 years.
4. I direct that the time spent in pre-trial custody be deducted from the minimum period in Order 3 above.
5. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge