R v Gaza [2024] SBHC 16; HCSI-CRC 529 of 2023 (14 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Gaza
Citation:
Date of decision:	14 February 2024
Parties:	Rex v Jeffery Gaza
Date of hearing:	8 February 2024
Court file number(s):	529 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. The prisoner Jeffery Gaza is sentence to life imprisonment. 2. Minimum period to be served by Jeffery Gaza is 16 years before eligible for parole, 3. Sentence to commence from the day the prisoner was taken into custody, 4. No further orders.
Representation:	Kelesi A & Tonowane for the Crown Kwalai D & Aisa T for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code {cap 26] S 200
Cases cited:	Ludawane v R [2017] SBCA 23Tii v Regina [2017] SBCA 6,Taiga v R [2023] SBCA 5,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 529 of 2023

REX

V

JEFFERY GAZA

Date of Hearing: 8 February 2024
Date of Sentence” 14 February 2024

Kelesi A & Tonowane for the Crown
Kwalai D & Aisa T for the Defendant

SENTENCE

Maina PJ:

1. Defendant Jeffery Gaza is charged with one count of murder contrary to section 200 of the Penal Code (Cap 26).
2. The particulars of the offence is that Jeffrey Gaza of Koe village, Ranongga Island Western Province on 19^th May 2023 at Koe village, Ranongga Island Western Province did murder a person namely Edwin Niga.
3. On arraignment, the defendant pleaded guilty to the charge of murder.

Summary of Agreed Facts

4. Counsels for the Crown and the Defence provided the Summary of Agreed Facts. The facts were put or read by the DPP to the defendant in Pidgin English.
5. The Defendant Jeffery Gaza, and the deceased Edwin Niga are brothers and the incident occurred at Koe Village on May 19, 2023, around 10:30am.
6. Defendant was sleeping inside Casmero’s house when it was in the morning he heard Mrs Mae who lived in her house next door called out to the defendant that he will tell her husband to him and will also tell Edwin Niga to kill him.
7. The Defendant heard what was said by Mrs. Mae, got up, put on his bag, took his knife, and went off from Casimero’s house.
8. As the defendant walked out from the house Mrs Mae saw him and quickly went into her house and locked the door. She the Defendant responded back to her and said that what did he did to them that they wanted to kill him.
9. Defendant walked down on the road with his bag and a knife in his right hand. He came to Silson Nepia’s house and sat down with Nepia and his brother Isaac.
10. It was there that the Deceased shouted at the Defendant and uttered it was you who went talk none sense. Defendant did not reply and went off or walked away but the deceased threw a stick to him.
11. The stick missed the Defendant and he then, with the knife in his right hand, moved towards the deceased and struck him with the knife’s blunt side. The blunt side of the knife struck the deceased on his head.
12. The Deceased turned and wanted to run away, but the Defendant, with his knife, struck him the second time at his left side, below his left armpit.
13. The Deceased escaped to another place but later he returned to Nepia’s house and shouted at the Defendant. Deceased told the defendant to wait for him, but he walked away.
14. At that time, Rose Mae and Mr. Nepia came and carried the deceased back under Mr. Nepia’s house but the deceased had heavy bleeding from his wounds. Attempts to stop the bleeding were futile, and he died a few minute later.
15. The Defendant went to Gason’s house and told Gason about what had happened between him and the deceased. He then went to Noni Village but returned to Gason’s place, and spent the night there.
16. On the next day he went the village to Amos’ house and to Holland’s house intending to go to Nelo’s house when the Police came and arrested him.
17. The doctor’s report from Dr. Deanray Mark, dated May 21, states that there was one deep laceration on the left temporal part of the head, 6cm horizontally and 1cm vertically. Visible temporal muscle and scalp when the wound was opened widely. There was a deep laceration on the left axillar area (underarm) with a visible axillar artery and axillar vein dissection, along with other small blood vessels measuring 11cm long and 6cm wide.
18. Further, Roy R. Marak, who provided his medical opinion by interpreting the photographs in Dr. Deanray’s medical report, stating that the deceased died from severe blood loss because of the cut would into the medial aspect of his left arm. There was another wound on the left temporal region of the head, but the fatal injury was the cut on his left arm. It was possible that he may have tried to defend himself when he was cut on his left arm.
19. The defendant had agreed to the facts as true and correct and or entered plea of guilty, I am satisfied and find the defendant Jeffery Gaza guilty upon own plea and accordingly convicted him on the charge of murder. The sentence for him is life imprisonment.

Parole

20. The law is quite straight forward that the life imprisonment for murder under section 200 of the Penal Code is mandatory sentence. However, the Court of Appeal in case of Ludawane v Regina^[1] prompt to change or adopt a sentencing method on murder with mandatory sentence. The appeal court stated that upon the conviction of murder, the court is oblige to state what in view should be the minimum period of sentence or non-parole period to be served before the prisoner is considered or eligible for parole.

The Issue

21. The issue now before me is what should be the starting point for the consideration on non-parole period for the prisoner in the murder charge, which the accused has enter guilty plea and was convicted on the charge.

Submissions by Counsels

22. To determine the issue, the DPP and Defence Counsel made their submissions to the court.
23. The DPP Kelesi submitted and referred the change in sentencing of murder that was set in the Ludawane case for the court to decide the non-parole period of the life imprisonment sentence.
24. DPP stated that to the process set by the Court of Appeal in Ludawane case is for the sentencing court to take into account and in particular, what to decide on the starting point for non-parole terms.
25. DPP also referred to the Correctional Services (Parole) Regulation 2020 at regulation 6 that expressed the requirement of minimum term set by the court before a prisoner may apply for Parole.
26. He stated that for the mitigation, the defendant has no previous conviction and the aggravating factors are:
    • (i) He is the sibling or biological brother of the deceased.
    • (ii) The incident happened at the family home that should be peaceful place and tranquility or place we expect to fine calmness.
    • (iii) The used a knife, a lethal weapon and being a dangerous weapon to cut the deceased with or committing the offence.
    • (iv) A very serious and loss of life of the deceased.
    • (v) The act of the accused was repeated.
27. DPP submitted that with above aggravating and in particular, with the used of weapon to kill his biological brother and the incident happened at home. Home supposed to be a place to find peace and tranquility and should a safest place people.
28. The DPP also referred to the Court of Appeal in case Tii v Regina^[2] when the court stated that a sentence should be crafted to attain the goal of punishment, deterrence and rehabilitation and submitted that with the facts and offending by the defendant in this case the starting point should be 15 years of non-parole period.
29. Defence Counsel Kwalai made a submission on minimum sentence for his client and stated that the Court of Appeal case in Taiga V R^[3] and he concedes that the Court of Appeal put the approach to sentencing in murder cases when it states:
    • “Murder – that is, causing the death of another person with intent to kill or to cause grievous bodily harm - is always a heinous offence. Solomon Islands law provides that an adult offender who is convicted of murder must always be sentenced to life imprisonment”.
30. Counsel Kwalai said the sentencing courts have some discretion when it comes to fixing a non-parole period that a prisoner must serve before he is eligible to apply for parole. Counsel also noted the provision in the sub regulation 5 (1) of the Correctional Services (Parole) Amendment Regulation 2020 that refers to the minimum term of imprisonment set by the court.
31. You have entered a guilty plea at early stage and I applaud and give credit for your course of action, as it is a sensible and accountable action on your part. This crime for sure has a big obstacle to you. It serves time, efforts, expenses and saved the witnesses with trauma to come and give evidences against you with the trauma and awful experiences.
32. For the mitigation, your lawyer submitted that:
    • (i) You were initially threatened by Mrs Mae which you said may contributed to your state of mind and action,
    • (ii) Deceased shouted at the defendant in a threatening manner but you ignored him,
    • (iii) Deceased saw you already held a knife but decided to throw a stick to you which provoked you and cut him twice later with a his knife would prompt your action to the lesser degree,
33. Defendant has no previous conviction, he has entered a guilty plea and the Defence counsel submitted that the appropriate starting point should be 12 years.

The Court

34. The cases of Ludawane and recently with the Taiga v R the Court of Appeal set out clearly the format or three categories for consideration when determining the minimum term of murder sentence. The consideration depends in its seriousness and or by the gravity of the offending.
35. Briefly, the Ludawane case provide the fixing or method of the starting point on parole that is based on the practices of English and Wales Criminal Courts. The Court of Appeal adopted three categories for our jurisdiction.
    • (i) Those that attract the normal starting point should be 12 years
    • (ii) The higher starting point attract 15/16 years and
    • (iii) The very serious cases attracting the higher starting point of 15 – 16 years.
36. With the Court of Appeal cases referred to above, they emphasis on the question of fixing a minimum period and the sentencing court should focus on the level of seriousness of the murder committed. This then would assist the sentencing court to determine the starting point. Regards must be on the culpability of the offender in committing the offence with any harm caused, intended to cause or that likely to cause. Further, if there are previous convictions that depend on what they are, be an aggravating factor.
37. From the facts, there was the use of weapon, a lethal knife and he struck the deceased twice with the knife. With these and circumstances of his offending, I am satisfied that the starting point for this case on the non-parole term is 15 years.
38. I note the migration presented by the defence counsel however they seems not satisfactory and would draw less thought on them by the court except that the defendant has no previous conviction as alluded to by the DPP.
39. The offender’s culpability was high and victim was in vulnerable position. The act of the accused when he cut with a knife the victim that caused two extensive injuries that inflicted on the victim before his death.
40. The use of a knife, a dangerous weapon to inflict injuries of your biological brother at the family home raise the seriousness of the offending by you thereby resulted a loss of life.
41. With these, I am satisfied that the minimum term to be served by prisoner Gaza before eligible for parole is 16 years and accordingly is ordered.

Orders of the Court

1. The prisoner Jeffery Gaza is sentence to life imprisonment.
2. Minimum period to be served by Jeffery Gaza is 16 years before eligible for parole,
3. Sentence to commence from the day the prisoner was taken into custody,
4. No further orders.

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge

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^[1] [2017] SBCA 23, SICOA – CRAC of 2016, (13^th October 2017)
^[2] [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017)
^[3] [2023] SBCA 5; SICOA-CAC 33 of 2022 (28 April 2023)