R v Hebala [2022] SBHC 108; HCSI-CRC 205 of 2022 (23 September 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Hebala
Citation:
Date of decision:	23 September 2022
Parties:	Rex v Curtis Hebala and David Philip
Date of hearing:	22 September 2022
Court file number(s):	205 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The accused Curtis Hebala is convicted and sentenced to a term of imprisonment for 5 years. 2. The accused David Philip is sentenced to term of imprisonment for three years. 3. I direct that the time each of them have spent on remand in custody be taken into account.
Representation:	Ms H Naqu for the Crown Mr D Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Campbell v Reginam [2005] SBCA 3, Rongodala v Regina [2006] SBCA 2, Regina v Talu [2005] SBHC 123, R v Banisi [2000] SBHC 73, Regina v Bobby [2009] SBHC 52, Regina v Gere [2013] SBHC 19, Regina v Baega [2012] SBHC 94, Regina v Baomate [2012] SBHC 112, Regina v Oma [2011] SBHC 72, Regina v Tema’ungatuha [2021] SBHC 127, Regina v Ive [2021] SBHC 64, Regina v Folia [2020] SBHC 75, Regina v Niaka [2020] SBHC 100

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 205 of 2022

REX

V

CURTIS HEBALA AND DAVID PHILIP

Date of Hearing: 23 September 2022
Date of Decision: 23 September 2022

Ms H Naqu for the Crown
Mr D Kwalai for the Defendant

Sentence

Introduction

1. Curtis Hebala and David Philip, you have each pleaded guilty to one count of manslaughter. You were both originally charged with murder. The prosecution elected to reduce the charge to manslaughter and you both pleaded guilty as soon as that charge was before the Court.
2. The basis for your pleas is that you Curtis Hebala were the principal offender, striking the deceased on the head with a mangrove stick. You, David Philip are charged as a party to that offending in that you held the deceased when Mr Hebala struck him. You now both appear for sentence.

Facts

3. On 26 February 2022 between 8.00pm and 9.00pm you went to the house of another person and asked for cigarettes and betelnut. You were told that the deceased had already taken 10 rolls of cigarettes on credit for you. You were angry and you went to look for the deceased. You were intoxicated. You found the deceased playing ludo. Curtis Hebala you held a mangrove stick that was 2 – 3 metres in length. David Philip, you saw the deceased and told Curtis Hebala who swung the stick at the deceased. The swing missed him. The deceased tried to run away. David Philip you then held the deceased and you Curtis Hebala struck the deceased hitting him on the back of his head. You used both hands and struck him with force. He fell to the ground and lost consciousness.
4. The deceased was taken to Lalaga area and later to the Tataba Clinic. He died the following morning. The post mortem revealed that he had suffered a fracture to the skull and died of bruising following blunt force trauma to the head.

Aggravating Factors

5. The Crown has reminded the Court that the offending resulted in the death of another person. That of course is not an aggravating factor but a recognition of the seriousness of taking a life.
6. You were both intoxicated.
7. You used a weapon to attack the deceased.
8. You attacked him at night and there were two of you acting together.

Mitigating Factors

9. You are both relatively young men who have not previously been in trouble with the law.
10. You have pleaded guilty as soon as the amended indictment permitted you to do so.
11. There has been compensation paid and a reconciliation in custom with the family of the deceased

Personal circumstances

12. At the time of the offending Curtis Hebala was aged 24 and David Philip was aged 23.
13. You are both single. I have earlier recorded that neither of you has any previous conviction.
14. Curtis Hebala you were educated to Form 6 and studied computer science and English at USP. You were to study civil engineering this year but because of your offending have been unable to attend SINU.
15. David Philip you were educated to Form 3 at a community high school in Isabel Province. In 2019 you completed vocational education at Garanga Rural Training Centre, graduating as a mechanic. You have worked with your father as a mechanic.

Deterrence

16. In imposing sentence, I must deter you from acting in a violent way in the future and must make it plain to the community that there are severe consequences for those who choose to attack others with weapons.

Starting Point

17. The charge was reduced from murder to manslaughter, not because of any loss of self-control but because the Crown has accepted that it could not prove that in swinging the mangrove stick in the direction of the head of the deceased you knew your action will probably cause the death of or grievous harm to the deceased. Mr Hebala, you should consider yourself to be fortunate that the Crown has taken such a lenient approach. You swung at the deceased more than once. The first swing missed and the second was with sufficient force to fracture his skull and cause the bleeding in his head that brought about his death.
18. The Court of Appeal has provided guidance in sentencing manslaughter cases when a weapon has been used. In Campbell v Reginam [1994] SBCA 3 the Court of Appeal noted that in the domestic situation where no weapon was used the Courts have consistently imposed sentenced of 2 to 4 years’ imprisonment. The Court said: “Where a weapon was used in a non-domestic situation a sentence of 6 years’ imprisonment has been imposed.”
19. In Rongodala v Regina [2006] SBCA 2 the Court of Appeal referred to the decision of the Chief Justice in Regina v Talu [2005] SBHC 123 in which the Chief Justice reviewed the sentences imposed for manslaughter and noted that the sentences generally ranged from three and a half years’ imprisonment to five years’ imprisonment. He also noted that where a weapon was used then sentences of six and seven years’ imprisonment have been imposed. In Rongodala the Court of Appeal identified factors that the Court ordinarily would take into account when fixing the appropriate penalty. These included:
    • (a) The age of the offender
    • (b) The previous history of the offender
    • (c) Provocation
    • (d) Intoxication
    • (e) Type of weapon (if any)
    • (f) Persistence of attack
    • (g) Vulnerability of the victim; and
    • (h) Relationship between the parties.
20. A you are both in your mid-twenties you cannot be said to be youthful offenders. You are young men who ought to have exercised better judgment and self-control. You were intoxicated. You used a mangrove stick as a weapon. To an extent your victim was vulnerable as he was just 18 and was prevented from escaping by the two of you acting together.
21. Counsel has referred the Court to R v Banisi [2000] SBHC 73, where there was a confrontation between two groups. The accused struck the deceased on the head with a stick which caused the death of the deceased. The court acquitted the defendant of murder but convicted him of manslaughter and sentenced him to 3 and a half years’ imprisonment. This was one of several cases reviewed in Talu.
22. In Regina v Bobby [2009] SBHC 52 the accused with others attacked and kicked the deceased, who was stabbed with the accused used a small knife he had taken from the person who attacked him. The offender was just 18 years old. Three years’ imprisonment was imposed.
23. In Regina v Gere [2013] SBHC 19 the Court was concerned with excessive self-defence which resulted in the deceased being stabbed. Three years’ imprisonment was imposed on the charge of manslaughter.
24. In Regina v Baega [2012] SBHC 94 a fight broke out between two groups of youths at a wedding. The accused threw a rock which struck the deceased in the face. He fell to the ground. Another person struck him in the chest with a chain and a third person kicked the deceased while he was on the ground. The Accused was sentenced to 5 years’ imprisonment. He was only 16 years old. Conditions were placed on his release.
25. In Regina v Baomate [2012] SBHC 112 the deceased with companions arrived at the house where the accused was. They called for him to come out and fight there was a fight in which the deceased kicked the accused in his private parts. The accused struck the deceased in the head with a rock. The deceased died of the injury received. The Court took a starting point of 6 and a half years’ imprisonment. There had been a guilty plea following the charge being reduced from murder and four years’ imprisonment was imposed.
26. In Regina v Oma [2011] SBHC 72 there was an argument in a family matter. The accused was drunk. The deceased had thrown a torch at the accused who was armed with a knife. The accused received an injury to his head. There was a fight and deceased was stabbed and died of the injury. The accused pleaded guilty to manslaughter when the charge was reduced from murder. He was sentenced to 4 and a half years’ imprisonment.
27. In Regina v Tema’ungatuha [2021] SBHC 127 two accused pleaded guilty to manslaughter once the charge was reduced from murder. There was an argument with swearing. The deceased fought the accused. He punched one accused who fell to the ground as the deceased advance to hit him again that accused hit the deceased on the head with an iron bar. The accused were sentenced to 5 years and 3 months’ imprisonment and 4 years and 8 months’ imprisonment respectively.
28. In Regina v Ive [2021] SBHC 64 the accused pleaded guilty to manslaughter after it was reduced from murder. The deceased with two others who were intoxicated reacted to words spoken by the accused. They went to his house and approached the accused. The accused held a pair of scissors. When the deceased moved towards him the accused stabbed him in the abdomen with the scissors. A sentence of 5 years’ imprisonment was imposed.
29. The Crown has referred the Court to Regina v Folia [2020] SBHC 75. The accused was angry because he was teased about his football team being beaten at the World cup. He armed himself with a kitchen knife and stabbed the deceased who died. On a guilty plea to the reduced charge of manslaughter he was sentenced to 7 and a half years imprisonment.
30. In Regina v Niaka [2020] SBHC 100 two persons in a boat argued. The accused grabbed a mangrove stick and hit the head of the deceased who fell into the sea. The accused jumped into the sea to look for the deceased but could not find him. The deceased died from drowning. A sentence of 4 years’ imprisonment was imposed.

Conclusion

31. I regard the use of the mangrove stick as less culpable than the cases where a knife is deliberately used. However, your victim was vulnerable being attacked by both of you. You were both affected by alcohol and attacked the deceased at night. This was not a case where you were under attack at all as was the case in a number of the authorities to which the court was referred.
32. Curtis Hebala, you were the principal offender. For your offending striking the deceased on the head using a mangrove stick with sufficient force that you fractured his skull and killed him I take a starting point of six years and a six months’ imprisonment.
33. I acknowledge your early guilty plea and your part in reconciling with the family of the deceased and paying customary compensation. I take into account that you have not previously appeared before the Court. There will therefore be a reduction of 18 months’ imprisonment for the mitigating factors, leaving a find sentence of five years’ imprisonment.
34. David Philip, I take the starting point of six years and six months’ imprisonment and reduce that by two years to acknowledge that you had a lesser involvement. You became involved only after Mr Hebala had already swung and missed the deceased. However, you assisted Mr Hebala by holding the deceased when Mr Hebala struck the fatal blow. That reduces the starting point for you, after aggravating factors, to four years and six months’ imprisonment.
35. I further reduce that term to take into account your mitigating factors which include your early guilty plea, your previous good record and your personal circumstances. I reduce the sentence by a further 18 months. That leaves a total sentence of 3 years’ imprisonment.

Orders

1. The accused Curtis Hebala is convicted and sentenced to a term of imprisonment for 5 years.
2. The accused David Philip is sentenced to term of imprisonment for three years.
3. I direct that the time each of them have spent on remand in custody be taken into account.

By the Court
Justice Howard Lawry PJ
Puisne Judge