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R v Basikekero [2023] SBHC 168; HCSI-CRC 153 of 2023 (21 December 2023)

HIGH COURT OF SOLOMON ISLANDS


Case name:
R v Basikekero


Citation:


Date of decision:
21 December 2023


Parties:
Rex v Philip Basikekero


Date of hearing:
18 December 2023


Court file number(s):
153 of 2023


Jurisdiction:
Criminal


Place of delivery:



Judge(s):
Talasasa PJ


On appeal from:


Order:
1 I make the following orders:
2 Length of Sentence imposed: 15 years imprisonment
3 Pre-Sentence period in custody to be deducted:
4 Time to be served in custody:


Representation:
Waisanau P T for Prosecution
Ifuto’o B for the Defence


Catchwords:
Information - charge of murder reduced to manslaughter – amended Information - guilty plea – amended Information; starting point of 7 years suggested by prosecutions and 2 ½ years to 4 years suggested by defence; aggravating features - considered starting point of 7 years - uplift of starting point by 13 years – to a total of 20 years; considered guilty plea – reduced by 3 years and other mitigating features including medical or health conditions of prisoner - reduced by 2 years – total reduction of sentence by 5 years; total sentence to serve - 15 years’ imprisonment.


Words and phrases:


Legislation cited:
Penal Code S 200, S 199,


Cases cited:
Bara v Reginam [2018] SBCA 10, Tii v Regina [2017] SBCA 6, Rongodala v Regina [2006] SBCA 2, Popoe v Regina [2015] SBCA 20, Nathaniel v R [2023] SBCA 35, Popoe v R [2015] SBCA 20

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION


Criminal Case No. 153 of 2023


REX


V


PHILIP BASIKEKERO


Date of Hearing: 18 December 2023
Date of Sentence: 21 December 2023


Waisanau P T for the Prosecution
Ifuto’o for the Defence


Talasasa PJ

SENTENCE

INTRODUCTION

  1. The prisoner was committed to stand trial in the High Court on 27 February 2023, for the charge of murder, c/s 200 of the Penal Code.
  2. An Information by the Director of Public Prosecutions for the same charge was filed on 6 April 2023. Subsequently, the DPP filed an amended Information for the same offence on 12 May 2023. The prisoner pleaded Not Guilty to this Information upon arraignment at the High Court on the same day (12/5/23).

TRIAL/PLEA

  1. The matter has been fixed for trial in May 2024.
  2. The Information for murder was discontinued by way of a nolle prosequi filed and entered on 7 December 2023. It was substituted with an Amended Information for Manslaughter contrary to Section 199 of the Penal Code, filed on the same day, 7 December 2023.
  3. The prisoner pleaded guilty to the amended Information for Manslaughter, c/s 199 of the Penal Code on 7 December 2023.
  4. The Summary of Facts was finalized between Counsels and filed on 14 December 2023. It was read and interpreted in court for the convenience of the prisoner on 18 December 2023.
  5. When it was read and interpreted, the prisoner replied, “Agree my Lord.”
Summary of Agreed Facts
  1. The Accused is Philip Basikekero, he is a Native of Fulisange Village, Central Kwaraa é, Malaita Province. He is now 57 years old at the time of offending. He was born on 15th October 1966. He is now 57 years of age.
  2. The Deceased is Gladys. She is from Lilisiana Village, Auki, Langa Langa, Malaita Province. The deceased was 48 years old at the time of the offending.
  1. On Sunday 25 December 2022, from around 8 am to 6 pm, the Accused, Rachel Ama, Steven Uiga together with the Deceased were drinking Kwaso at his residence at Fulisago settlement, Honiara. The Accused has been drinking since midnight of Saturday 24 December 2022. He joined the Deceased, Rachel and Steven on Sunday morning and they continue to drink Kwaso till evening of that day. The accused was drunk at that time.
  1. At around 7 pm on Sunday 25 December 2022, the Deceased was seen sleeping in their kitchen house. The accused woke her up and told her to prepare food for their little girl.
  2. The Deceased left and went to an incomplete house nearby, where they were gambling. The Accused sent his niece to tell the Deceased to come back, to prepare food for the little girl but she did not come. The accused went over to the Deceased and punched her on the right eye of her face, which caused the Deceased to fall on top a pile of timbers. The accused continue to assault her until the Accused’s son came and led her mother away.
  3. On 27 December 2022, the Deceased complained of head ache and cold. She was taken to the National Referral Hospital for medical treatment. The Deceased was advised to return the next day for review.
  4. On 28 December 2022, the Deceased did not return for the review. She continued to experience headache.
  5. In the evening of 31 December 2022, the deceased continued to experience headache, fever and she vomiting.
  6. Around midnight of the 31 December 2022, the Deceased was rushed to the National Referral Hospital. She was admitted on 1 January 2023. CT scan of the Deceased’s head on the day of the admission revealed that she had features of meningitis. She was treated with antibiotics drugs. However, despite the medical intervention and treatment she died at National Referral Hospital on 2 January 2023.
  7. On 4 January 2023, an autopsy was conducted and the deceased was found to have died from acute meningitis as a result of the blunt trauma to her right eye. The blunt trauma fractured the roof of the right orbit which opened into the cranium and torn the right front lobe. This allowed infections to enter into the regions surrounding the brain and spinal cord. This caused the acute meningitis, which was infection of the meninges (tissues surrounding and covering the brain).
  8. On 4 January 2023, the Accused was arrested and was remanded in custody on 6 January 2023.
  1. On 6 April 2023, an information for Murder against the Accused was filed at the High Court. On 12 May 2023, the Accused pleaded Not Guilty. Trial was set to commence from 13 May - 24 May 2024.
  1. On 30 October 2023, representation was made to the prosecution for a reduced charge manslaughter.
  2. On 6 December 2023, the prosecution informed the Defence that they have considered the representation and agreed to reduce the charge to manslaughter.
  3. On 7 December 2023, an information for Manslaughter was filed and Accused pleaded guilty to the charge.
  4. The relatives of the Accused have paid a compensation of $ 24,000 SBD and 3 shell money to the relatives of the Deceased.
  1. The penalty for manslaughter is a maximum term of life imprisonment.

Manslaughter

199. - (1) Any person who by an unlawful act or omission causes the death of another person is guilty of the felony known as manslaughter. An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.
(2) Any person who commits the felony of manslaughter shall he liable to imprisonment for life.
  1. Counsel for the prosecutions submitted that the method of sentencing in this jurisdiction is settled. Counsel Waisanau referred this court to the case of Bara v Reginam,
  2. Counsel for the prisoner equally referred to the case of Bara v Reginam,
  3. Counsel for the Prosecutions, Mrs Waisanau, in addition to other cases, referred to two Court of Appeal cases.
  4. The first case Counsel Waisanau highlighted in her submissions is the case of Rongodala v Regina [2005] CRAC 008 of 2006, where the Court of Appeal set out the factors to be taken into account in sentencing on a charge of manslaughter:
  5. The second case is the case of Popoe v Regina [2015] SBCA 20; SICOA-CRAC 42 of 2014 (9 October 2015), where the Appellant unlawfully killed his wife, the deceased, by sitting on her left shoulder which caused severe internal injuries to her body which resulted to her death a few hours later. An appeal was made against a sentence of 10 years imprisonment imposed by the sentencing judge as being manifestly excessive. In considering the sentence, the Court of Appeal said,
  6. Counsel Waisanau further iterated in her submissions that the Court of Appeal in Popoe v Regina noted,
  7. Counsel for the prisoner equally referred to the above cases referred to by the prosecutions but further submitted that the Court of Appeal of Solomon Islands and the High Court of Solomon Islands have passed a range of sentences in manslaughter offences,
  8. Counsel Ifutoó ó submitted that the offending in this case falls under the lower scale of offending in manslaughter cases.
    1. That the Accused is a first-time offender in this particular offence;
    2. The guilty plea
    3. No pre-planning
    4. No weapon was used in the offending;
    5. The health condition of the accused
    6. Reconciliation
    7. Pre-trial custody period”[3]

SUBMISSIONS – AGGRAVATING AND MITIGATING FACTORS

  1. Counsel for the prosecutions and Defence filed their submissions as directed.
  2. I have read the written submissions and heard their oral submissions.
  3. Counsel for the prosecutions identified and highlighted the following aggravating feature:
    1. Vulnerability of the deceased — She was unarmed and did not fought back at the accused. She was defenceless. The accused took advantage of the deceased vulnerability
    2. Persistence of the attack/or assault — After the deceased fell down from the punch on her right eye, the accused continued to assault the deceased until the accused son came and led her mother away.
    1. Intoxication - It is submitted that at the time of the offending, the accused was intoxicated. It must be noted that intoxication is not a mitigating factor.
  4. Counsel for the prisoner identified and highlighted the following mitigating features as well as outlining how I should sentence the offender:
    1. The accused has no prior convictions. The is the first time the accused in the trouble with the law. The Accused has been a law-abiding citizen for the past 50 years until the commission of this offence on 25 December 2022.
    2. He has pleaded guilty at the first opportunity when the appropriate charge of manslaughter was laid. The amended information was filed on 7 December 2023 and he pleaded guilty to the charge on the same day.
    1. This matter was listed for trial next year commencing from 13 May to 24 May 2024. The guilty plea now saves the court’s time and resources to run a trial.
    1. A guilty plea is a sign of remorse and an acceptance of responsibility for his action. A guilty plea should warrant a significant discount. In Eric Nathaniel Junior & Ors V R, the court of Appeal at paragraph 17 stated: “Clearly, a guilty plea will normally warrant a significant discount.”
    2. It is submitted this is an early plea and a significant discount ought to be given to the accused.
    3. There was no pre-planning in this offending. It was a spur of moment incident. There is no weapon used in the offending.
    4. The Accused has cooperated with Police in their investigation.
    5. The Accused felt sorry for his action, which led to the death of his wife. Reconciliation has been done between the family of the Accused and that of the Deceased.
    6. The Court is urged to take into account the health conditions of the Accused. According to the medical report dated 11 December 2023, the health status of the Accused is not stable. As he continued to experience regular complains related to his medical condition. Attached is a copy of the medical report.
  5. Counsel Ifutoó for the prisoner also highlighted the report by Inspector Medical of Rove Central Correctional Centre. It stated that inmate Philip Basikekero was admitted on the 6th January 2023 as a new reception. On admission, inmate has presented with history of Hypertension, Bilateral Calculi (LT) and with Hydronephrony Bilateral. Inmate regularly attended to RCCC Correctional Clinic when needs medical attention.
  6. The report stated that for his medical conditions, he was issued with a special diet and was given regular treatments. His past medical history included being admitted at the Surgical Ward, NRH on the 22nd April 2020 to undergo an operation for the Left Renal Calculi and discharged on the 24th April 2020. On 13th July 2020, inmate admitted at the Surgical Ward, NRH for removal of the JJ stent but cancelled due to inmate developed hypertension as was discharged on 14th July 2020. On 5th August 2020, inmate Philip Basikekero readmitted for removal of the JJ stent and was done successfully. On 29th May 2021, inmate admitted again at the Surgical Ward, NRH for having a severe abdominal pain with vomiting and discharged on 30th May 2021.
  7. Personal details include his birth date which is 15 October 1966, married and resides at Fulisango Settlement, in Central Honiara. It was further noted in the report that proactive actions were in place to ensure appropriate support is available to the inmate. Ongoing consultation with the inmate is done at the accommodation blocks and as well as at the RCCC Clinic.
  8. The current health status of inmate Phillip Basikekero is not stable as he continued to experience regular complains related to his medical conditions. Also, the environment is not conducive that can have an impact on both his mental and physical wellbeing. He continues to take his medications while at the Centre but will be scheduled for his review on the 5th April 2024.
  9. Counsel Ifutoó says you belong to the SSEC. I understand that SSEC recognizes and upholds the significance of Christmas. I am sure you would have learned that from childhood, if not later in your life.

THE OFFENDING AND CONCLUSION

  1. I have considered the submissions of both Counsels on sentence together with the authorities referred to, for which I am grateful.

AGGRAVATING FACTORS:

  1. I find the following aggravating factors.

MITIGATING FACTORS:

  1. I find the following mitigation features:
‘A guilty plea should warrant a significant discount. In Eric Nathaniel Junior & Ors V R, the court of Appeal at paragraph 17 stated: “Clearly, a guilty plea will normally warrant a significant discount.”
“It is submitted this is an early plea and a significant discount ought to be given to the accused.
There was no pre-planning in this offending. It was a spur of moment incident. There is no weapon used in the offending.
The Accused has cooperated with Police in their investigation.
The Accused felt sorry for his action, which led to the death of his wife. Reconciliation has been done between the family of the Accused and that of the Deceased.”[4]
  1. I do note that Defence also submitted on the health conditions of the prisoner. Also, that compensation was paid to relatives of the deceased. I take note of that. These have significant effect on the final sentence I will impose on you.
  2. The incident occurred on Christmas Day, in the evening. I do note whilst Christmas is usually celebrated in Christian communities with church services, feastings and sports, it is more reflected as a Christian festivity of remembrance; remembering the incarnation of God in man through the Lord Jesus Christ, that is fully human and fully divine.
  3. Whilst many Christians in Honiara and I believe the same at Fulisango settlement were observing the day, you spent the day drinking; little did you realize that what you might have intended to be a joyous occasion resulted in a fatality within your own family.
  4. You assaulted your wife mercilessly. It took the love and bravery of your son to remove the deceased from your ongoing barrage of assaults. I consider a husband who beat his wife or partner to be a ‘coward.’ You have cowardly attacked your wife.
  5. I note that you were showing fatherly love to your daughter by asking your wife to prepare food for her. But what you did to your wife when she did not follow your instructions would end your family the biggest losers following your acts of aggression and violence. One wrong does not make good another wrong. You deprived your daughter and the rest of your children, a mother. How sad that was, but in my view, is an illustration of greed and jealousy on your part – pure barbarism and primitive an attitude.
  6. Manslaughter is a serious offence. Even though it is in the absence of the element of malice aforethought, it does involve the doing of an unlawful act that caused the loss of one’s life. It carries a maximum penalty of life imprisonment. And so, you will be punished accordingly.
  7. The offence was committed in a domestic setting. Time and again, the court in this jurisdiction had to do the difficult task of sentencing such offenders. The same messages have been pronounced from the bowels of our courts. The Court of Appeal in Popoe v Regina[5] was no exception when it states,

“We agree with his Lordship that domestic violence is a serious issue for the Community in the Solomon Islands.”

  1. It is time penalties for manslaughter are raised to reflect the rationale of parliament in providing for life imprisonment as its maximum penalty. It is the most heinous of crime, second only to murder. A life lost in such circumstances in the communities of Solomon Islands is devastating to the family and the community. It is a destruction of peace in the family and the community.
  2. It is my view that the sentencing court in the country must also reflect that when sentencing such offenders. Of course, a sentencing court is to be mindful of what the Court of Appeal in Popoe v Regina[6]
  3. Prosecuting Counsel asked court to consider a starting point of 7 years. On the other hand, Defence Counsel submitted a range of 2 1/2 years to 4 years imprisonment as starting point.
  4. Taking into account the circumstances of this case, I find the starting point of 7 years as appropriate. With circumstances of aggravation I consider an uplift of 13 years, making it to a total of 20 years.
  5. In considering the guilty plea entered and for what it serves as outlined in Counsel Ifutoó’s submissions on this point, in my view is worth a significant discount by 3 years. For the circumstances or features of mitigation, a further 2 years is deducted, making it 5 years as an appropriate discount in total, making the end sentence of 15 years imprisonment.
  6. Both Counsels submitted that the prisoner has been in custody since 6 January 2023. That was also stated in the CSSI medical report of the prisoner.
  7. I order that time spent in custody is to be taken into account and deducted from the final sentence. I will ask that Inspector Medical of the Correctional Services of Solomon Islands (CSSI) monitor the prisoner and ensure he is well taken care of whilst serving his term. It was noted in the report that proactive actions were in place to ensure appropriate support is available to the inmate; and that ongoing consultation with the inmate is done at the accommodation blocks and as well as at the Rove Central Correctional Centre Clinic (RCCC Clinic).
  8. You have a right of appeal.

ORDERS

  1. I make the following orders:
  2. Length of Sentence imposed: 15 years imprisonment
  3. Pre-Sentence period in custody to be deducted:
  4. Time to be served in custody:

THE COURT
Justice Ronald Bei Talasasa Jr
PUISNE J

[1] Submissions by Counsel Ifutoó for the prisoner, at paragraph 29
[2] Ibid, at paragraph 30
[3] Ibid, at paragraph 31
[4] Submissions by Counsel for the prisoner, Ifutoó, B

[5]Popoe v Regina [2015] SBCA 20; SICOA-CRAC 42 of 2014 (9 October 2015), paragraph 79

[6] Ibid, paragraph 79.

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