R v Mataisau [2023] SBHC 152; HCSI-CRC 564 of 2021 (20 October 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Mataisau
Citation:
Date of decision:	20 October 2023
Parties:	Rex v Sanders Mataisau
Date of hearing:	20 October 2023
Court file number(s):	564 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. On the charge of murder, the Accused is convicted and sentenced to life imprisonment. 2. The Accused is to serve a minimum of 11 years’ imprisonment before he is eligible for parole. The term of imprisonment commences from the date he was taken into custody.
Representation:	Mr S Tovosia for the Crown Mr S Aupai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	R v Funifaka [1997] SBHC 31, Ludawane v Regina [2017] SBCA 23, R v Sectary of State for the Home Department Ex Parte Anderson [2002] UKHL 46,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 564 of 2021

REX

V

SANDERS MATAISAU

Date of Hearing: 20 October 2023
Date of Decision: 20October 2023

Mr S Tovosia for the Crown
Mr S Aupai for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Sanders Mataisau you have been found guilty on one count of murder. You now appear for sentence. The sentence for murder is life imprisonment and the Court is required to consider a minimum time that you must serve before being eligible for parole.

Facts

2. The Deceased with at least one other person had been consuming alcohol. The local community had a by-law concerning drinking that disturbed the peace of the community. You had heard that those drinking had been reminded of the by-law and had sworn at the by-law. You took it upon yourself to assault the Deceased. You punched him to the head. On your own account to you said you punched him to the back of the head causing him to fall to the ground and then punched him a further four times. The Court did not accept that the Deceased was standing at the time you punched him. You then used a wooden walking stick that is around 1.2 metres long and you swung the heavier end, which was the handle of the walking stick into his face striking him around the eyebrow. He was struck with such force that it caused a laceration on his forehead and bleeding within his skull associated with the laceration. He died shortly afterwards from that injury.
3. The Court has found that you caused the death of the Deceased by that unlawful act and when you did so you had malice aforethought. The Crown relied on and the Court accepted that the malice aforethought was that set out in section 202(b), that is when you caused the death of the Deceased you knew that your action will probably cause the death of or grievous bodily harm to the Deceased and you proceeded nonetheless, being indifferent whether death or grievous harm may be caused or not.
4. In arriving at an appropriate sentence I acknowledge the helpful and thoughtful submissions of both counsel.

Personal Circumstances

5. I am told that you aged 24 and before the offending you supported your parents.
6. You have no previous convictions.
7. You have now been in custody for 2 years and 4 months.
8. Your counsel has said you have been attending prayer three times a day which was not something you did before you lost your liberty.
9. You were a volunteer in the community to address the abuse of marijuana and kwaso in your community. Your counsel has submitted that this was to ensure that the Forest Valley Community is a safe and peaceful place. It is difficult to reconcile this with the deadly violence you inflicted on someone you describe as a friend.

Sentencing Principles

10. Mr Mataisau, in sentencing you I find there are three main objectives. First and foremost, to condemn your crime and to denounce your actions. Second, to hold you accountable for the terrible harm you have caused and to attempt to impose some commensurate punishment. I do that on behalf of the whole community, which in particular includes the victim of your crime, his family, all of whom are a part of the community in Solomon Islands. Third, there is the need to protect the community and in particular its children from you and others who may be minded to act as you did.

Aggravating factors

11. There are a number of aggravating features that the Court must take into account. The most significant is that you acted as a vigilante. You unlawfully attacked the Deceased. You did so with a wooden weapon at night outside the house where the person who had been with the Deceased lived.
12. The Crown has also submitted that the attack occurred in the presence of community members. I find the used of the weapon and the fact that you were not concerned so much with keeping the peace but with inflicting punishment on the Deceased as aggravating. The Deceased was no threat to you nor the community and was trying to protect himself from you when you killed him.

Mitigating factors

13. Your counsel has raised a number of matters in mitigation. I am told your relatives have paid significant compensation which included cash, shell money and a pig and have reconciled with the family of the Deceased. As this Court said in R v Funifaka and others [1997] SBHC 31:
    • “The significance of compensation in custom however should not he over-emphasized. It does have its part to play in the community where the parties reside, in particular it makes way or allows the accused to re-enter society without fear of reprisals from the victims relatives. Also it should curb any ill-feelings that any other members of their families might have against them or even between the two communities to which the parties come from. The payment of compensation or settlements in custom do not extinguish or obliterate the offence. They only go to mitigation. The accused still must be punished and expiate their crime.”
14. Your counsel has submitted you are remorseful and that you understand that your actions have caused the death of your friend.
15. Your counsel points out that you were co-operative with the Police and did not try to flee. He says you remained to find transport for the Deceased.
16. I have previously recorded that you have no previous convictions.

Starting point

17. For the crime of murder there is a mandatory sentence of life imprisonment. The Court of Appeal decision of Ludawane v Regina [2017] SBCA 23 held that with the legislative changes to the Corrections Services Act and Regulations, it is now necessary to set a minimum term in sentences of life imprisonment for murder.
18. At paragraph [15] of the judgement in Ludawane, the Court followed the English case of R v Secretary of State for the Home Department Ex Parte Anderson [2002] UKHL 46 and said:
    • “We adopt without reservation the approach set out in Anderson and confirm that when sentencing an offender to a mandatory sentence of life imprisonment it is incumbent on the sentencing judge to fix a minimum term of imprisonment which the offender must serve prior to his or her release on licence (termed in the legislation ‘parole’).”
19. At paragraph [17] of Ludawane, the Court continued:
    • “As earlier said, it was not necessary under the former sentencing regime to specify a minimum term as a life sentence was not affected by parole provisions. With the advent of this legislative change the requirement to set a minimum term becomes apparent and with that the need for guidelines as to what minimum terms should be set.”
20. At paragraph [18] the Court endorsed three categories of seriousness in murder cases for purposes of determining the minimum term:
    • “18. Murder is one of the most serious offences in the criminal calendar. That is clear from its effect and is reflected in the mandatory penalty provided by the Legislature. This fundamental point should not be overlooked when determining a minimum term of imprisonment to be served. In common with other offences, whilst inevitably serious, murders themselves fall into the most, very and less serious categories. It may be that there should be more categories than the three set out here, but a useful starting point is that division from the worst category of offence to a category which may attract a shorter, although still substantial, minimum terms of imprisonment.” (Emphasis added).
21. In Ludawane the Court of Appeal followed the guidance given in Anderson which had referred to cases with a starting point of 12 years as a minimum sentence to be served. In Anderson the Court said:
    • “Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in paragraph N.13. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph.”
22. The Court in Ludawane also approved the second category meriting a higher starting point. Having considered the submissions of counsel and the description of the factors that give rise to the second category, I find your offending falls within the first category. I find that there are no exceptional circumstances that would reduce the starting point below the 12 years identified in Ludawane.
23. I take a starting point of 12 years’ imprisonment and increase that to take account of the violence used as a vigilante at night in the community setting. I increase the non- parole period by 12 months. Having considered the matters put forward in mitigation, in particular your personal circumstances including the lack of prior convictions. You will receive a credit of 24 months’ imprisonment. That leaves a total period of 11 years before you are eligible to apply for parole.
24. Unlike the case of Ludawane you elected to proceed to trial as is your right. However the result is that you are not entitled to the reduction he received for his guilty plea.

Orders

1. On the charge of murder, the Accused is convicted and sentenced to life imprisonment.
2. The Accused is to serve a minimum of 11 years’ imprisonment before he is eligible for parole. The term of imprisonment commences from the date he was taken into custody.

By the Court

Hon. Justice Howard Lawry

Puisne Judge