R v Koethivoa [2022] SBHC 90; HCSI-CRC 107 of 2022 (16 November 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Koethivoa
Citation:
Date of decision:	16 November 2022
Parties:	Rex v Nathan Koethivoa
Date of hearing:	11 and 16 November 2022
Court file number(s):	107 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Accused is sentenced to a term of six years loss of liberty. 2. That period will be divided so that two years will be spent in custody commencing on the day he was first taken into custody. The balance will be spent in the community under the supervision of Chief Samuel Manekauivaka who will direct where he is to live and with whom he may not associate. 3. During the time to be served in the community he is to undertake such community work as directed by the Chief Samuel Manakuivaka at the Vono SDA Church, local schools or other places as may be directed. The total community work should not exceed twenty hours in any one week. 4. Throughout the period served in the community, the Accused is not to consume any alcohol until his 20th birthday nor shall he consume any illicit drug 5. During the period served in the community, Chief Samuel Manekauivaka is to provide reports to the Registrar of the High Court concerning the progress of the Accused and his compliance with the conditions imposed. The first report is to be provided to the Registrar of the High Court three months after his release from prison. Chief Samuel Manekauivaka is to provide further reports to the Registrar after each period of three months for the first year after his release and thereafter to provide reports at the conclusion of each 6 month period. 6. For the avoidance of doubt the Accused is to spend two years of the sentence in custody and the remaining four years in the community under the conditions set out above.
Representation:	Ms M Suifa’asia for the Crown Mr M Holara for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Juvenile Offenders Act S 13, Penal Code S 200, Constitution S 5 (1) (g),
Cases cited:	Kelly v Regina [2006] SBCA 17, Ti’i v Regina [2017] SBCA 6, Fo’oka v Regina [2014] SBCA 10, Regina v Tiko [2010] SBCA 7

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 107 of 2022

REX

V

NATHAN KOETHIVOA

Date of Hearing: 11 and 16 November 2022
Date of Decision: 16 November 2022

Ms M Suifa’asia for the Crown
Mr M Holara for the Accused

SENTENCE

Introduction

1. The Accused Nathan Koethivoa has pleaded guilty to one count of murder. He now appears for sentence.

Facts

2. On 22 December 2021 he was with others in Tasimboko where the group bought kwaso. They then went to Boboro village where they drank beers and kwaso. The Accused had been drinking since the day before. They drank through the night.
3. About 5:00am on 23 December 2021 the Accused went outside to urinate. He overheard those inside talking about him. He took exception to hearing the Deceased say to the others to let him go as he had not paid for any beer. The Deceased denied saying that when the Accused confronted him. The Deceased tried to pull the Accused inside so they could all continue drinking. The Accused had a knife in his hand and swung it at the Deceased, stabbing him in the chest. The Deceased died from loss of blood. The stab wound had cut his heart which bled into the pericardial cavity.
4. I record that after the Accused stabbed the Deceased another person took the knife from him. When the Deceased did not respond to the Accused, he left and went to his own house.
5. The Deceased died later that day. Although the agreed facts record the Accused as being aged 16 at the time he was actually only 15 and turned 16 a few days later. His date of birth is shown as 27 December 2005.

Aggravating factors

6. The Crown has submitted that there are two aggravating features. The first is the intoxication of the Accused and the second is the use of a knife as a weapon. In the circumstances of this case I view the intoxication as being a circumstance of the case rather than an aggravating factor. How the Accused was able to engage in drinking alcohol over such a prolonged period given his age is difficult to understand. I do not know what long term harm he has done to himself by engaging in such binge drinking.

Mitigating factors

7. The Accused has pleaded guilty to the offence. He has expressed remorse which I accept is genuine remorse. That has been expressed to the social welfare officers, and by his plea and by the reconciliation process.
8. He is still only 16 years old and was 15 at the time of his offending.
9. He is shown to have been of good character and community leaders speak well of him.
10. Counsel has submitted that the Accused co-operated with the Police including when he knew the Police were coming to arrest him. I regard this as neutral and a lack of a further aggravating factor.

Juvenile Offences Act

11. Although the Penal Code provides that a person who is guilty of murder is to be sentenced to life imprisonment section 13 and 16 of the Juvenile Offenders Act permit the Court to impose a lesser finite sentence.
12. The Court of Appeal in Kelly v Regina [2006] SBCA 17 in dealing with this issue said:
    • “There can be little doubt that, approached in this way, s.13 qualifies not only s.16 of the Act but also s.200 of the Penal Code in imposing mandatory life imprisonment for a murder committed by a child or young person. Section 13 of the Act deals specifically with particular class of individual, namely those under 18 years of age who commit a murder. It is later legislation enacted after and subsequently to the Penal Code. On ordinary principles of interpretation, and for each of these reasons, s.13 therefore takes precedence over s.200 of the Code. To the limited extent prescribed in s.13, the mandatory sentencing rule in s.200 is impliedly repealed or displaced. To the extent that there is any ambiguity or question about this result, it is confirmed or required by s.5 (1) (g) of the Constitution, and, if need be, also by international treaties and conventions on the subject. Indeed, if s.13 of the Act is not given the interpretation adopted here, it serves no purpose at all, and might as well not have been enacted. Some meaning and effect must be given to it, and in our view it is to be read as qualifying the mandatory terms of s.200 of the Penal Code as regards life imprisonment in the case of the grave crime of murder committed by a child or young person.”
13. In Ti’i v Regina [2017] SBCA 6 the Court of Appeal confirmed and applied this approach. The Court affirmed the goals of punishment, deterrence and rehabilitation. At paragraph [25] the Court adopted was said in Fo’oka v Regina [2014] SBCA 10 which included:
    • “The common feature which appears repeatedly in the previous sentences brought to our attention is the concern shown by the court for the rehabilitation and reintegration of the juvenile into the community. The sentence of any young person convicted of a grave crime such as murder must be imprisonment or detention but, even if the incarceration is for some years, he will still be relatively young on his release. The courts have tended to allow his release into the community as soon as possible in order to encourage effective rehabilitation and reintegration. This has been achieved by combining the order under 16 (j) with one under 16 (d). The younger the offender, the higher the proportion of the sentence which has been ordered to be spent in the care of another person.”

Discussion

14. At paragraph [33] of Ti’i the Court said that ten years imprisonment is an appropriate starting point in sentencing a juvenile for murder committed in the course of a fight between two groups. In that case the starting point was increased by 2 years to take account of the aggravating factors. There was then a reduction because of the mitigating factors which included the fact that the appellant in Ti’i was only 14 at the time, he had pleaded guilty and expressed remorse. There had been unacceptable delays including a delay of 15 months between plea and sentence. The final sentence imposed in that case was six years with part of the sentence served in prison and part in the community.
15. In Regina v Tiko [2010] SBCA 7 the Court of Appeal reviewed a number of sentences imposed for offending by a juvenile. A 16 year old had pleaded guilty to murder and the Court dealt with the need to balance the competing goals to help the necessary process of rehabilitation and reintegration into society. The Court considered a sentence in the range of 5 to 7 years could be a reasonable range.

Circumstances of the Accused

16. This case did not involve mob violence as described in Ti’i. It was a spontaneous reaction to words and actions from the Deceased by a teenager who was a few days short of his 16^th birthday at a time he was clearly affected by the alcohol he had been consuming over a long period.
17. The Accused has put material of some significance before the Court. This material includes evidence of a reconciliation/mediation settlement involving community leaders, police officers and men and women from both the Accused’s side and the side of the Deceased. The parties agreed on the outcome recognising that this matter will be completed in Court. Counsel has also placed a detailed report from the Social Welfare Division of the Ministry of Health and Medical Services before the Court.
18. There are references from the Vono SDA Church, from a village/community chief and from a tribal chief. The references all have a common theme. Those who know the Accused well were shocked at what happened as it is so out of character from the person they know. He is described as someone who is a responsible and reliable young man. He had a good reputation. He has participated in community work for his family, his village, his school, the local clinic and the church. I accept that the Accused has good prospects for rehabilitation with the right guidance and supervision.
19. Samuel Manekauivaka is a tribal chief of Tathiboko Ward. He has recommended that the Accused undergo community labour. He undertakes to administer, supervise and monitor the Accused to check compliance with conditions set by the Court.

Conclusion

20. For the action of taking a life in a spontaneous act when he was offended by what the Deceased had said, the Court considers a starting point of 9 years imprisonment is appropriate. That takes into account that he used a kitchen knife to inflict the fatal wound at a time when he had been drinking to excess. From that starting point the Court recognises that he was only 15 years old at the time. He has pleaded guilty. He has taken part in customary reconciliation. He has expressed remorse. He has until this event been of good character. It has been suggested that his family background, with his parents being separated, may have contributed to his involvement with others who drank to excess.
21. All these factors persuade me that a reduction of three years is appropriate. The remaining period can be divided into 2 parts in accordance with Section 16 of the Juvenile Offenders Act. He will be required to spend a significant part of the six year period in the community which has been affected by his offending. He is to be supervised by Chief Samuel Manekauivaka who will provide reports to the Registrar of the High Court.

Orders

1. The Accused is sentenced to a term of six years loss of liberty.
2. That period will be divided so that two years will be spent in custody commencing on the day he was first taken into custody. The balance will be spent in the community under the supervision of Chief Samuel Manekauivaka who will direct where he is to live and with whom he may not associate.
3. During the time to be served in the community he is to undertake such community work as directed by the Chief Samuel Manakuivaka at the Vono SDA Church, local schools or other places as may be directed. The total community work should not exceed twenty hours in any one week.
4. Throughout the period served in the community, the Accused is not to consume any alcohol until his 20^th birthday nor shall he consume any illicit drug.
5. During the period served in the community, Chief Samuel Manekauivaka is to provide reports to the Registrar of the High Court concerning the progress of the Accused and his compliance with the conditions imposed. The first report is to be provided to the Registrar of the High Court three months after his release from prison. Chief Samuel Manekauivaka is to provide further reports to the Registrar after each period of three months for the first year after his release and thereafter to provide reports at the conclusion of each 6 month period.
6. For the avoidance of doubt the Accused is to spend two years of the sentence in custody and the remaining four years in the community under the conditions set out above.

By the Court
Justice Howard Lawry PJ
Puisne Judge