Penai v Regina [2012] SBCA 17; CRAC15.2012 (2 November 2012)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court Criminal Case No. 248 of 2009 (Faukona J)

COURT FILE NUMBER:	Criminal Appeal Case No. 15 of 2012

DATE OF HEARING:	22 October 2012

DATE OF JUDGMENT:	2 November 2012

THE COURT:	Williams, JA
	Hansen, JA
	Apaniai, J

PARTIES:	Ben Penai (Appellant)

	-V-

	Regina (Respondent)

KEY WORDS: Criminal Law – manslaughter – sentence – relevance of delay before trial

This is an application for leave to appeal against a sentence of 6 ½ years imposed on the appellant by Faukona J on the 16th May 2012 for the manslaughter of his father-in-law ("deceased") on the 4th October 2008 at Santa Cruz, Temotu Province.

The appellant was charged with murder in connection with the death of the deceased but was acquitted of the murder charge and, instead, convicted of manslaughter. He was then given a custodial sentence of 6 ½ years. In imposing that sentence, Faukona J also ordered that the period already spent in custody (2 years and 7 days) be deducted from the 6 ½ year sentence.

The facts of this case can be stated briefly. On the 4th of October 2008, the appellant had an argument with his wife who was the daughter of the deceased. The wife was heavily pregnant at that time. The argument led to the accused pursuing his wife with a piece of timber to assault her. The wife escaped and ran to the deceased who was at that time digging a post for his house. On seeing the appellant pursuing of the wife, the deceased intervened and told the appellant not to harm his wife. The appellant did not listen and continued in pursuit of his wife. As the appellant came past the deceased, the deceased grabbed the appellant by the back of the appellant's collar and a struggle then ensued. During the struggle, the appellant grabbed a piece of timber and struck the deceased on the side of his head just above the right ear causing the injury from which the deceased died.

The appellant was arrested on 6th October 2008 but released on bail on 1st October 2010. His trial did not take place until the 27th February 2012 which means that he was not in custody for approximately 17 months while waiting for trial.

The sole ground of appeal is that the sentence was manifestly excessive in all the circumstances having regard to the comparative level of seriousness of the offence and the delay in prosecuting the case.

However, at the hearing of the appeal Mr. Ghemu of counsel for the appellant focused his submission only on the issue of delay. We take it that he has abandoned the issue of parity of the sentence.

Hence, the only issue on this appeal is whether or not a delay of 3 years and 5 months is manifestly excessive in the circumstances.

Delay in prosecuting a case is indeed a mitigating factor[1] but only to the extent that it is unreasonable[2] and the question whether or not a delay is unreasonable depends on the circumstances of each case.

In his ruling on sentence, Faukona J had considered the question of delay. He had considered the circumstances of the delay, that is, the process of investigation, the preparation of cases by counsels and the limited court resources available as well as the increase in the number of cases now coming before the court as compared to the number of cases in the past. He came to the conclusion that a 3 years and 5 months delay period was not unreasonable in those circumstances.

In our view, that is a matter entirely within his discretion as the trial judge. This court would interfere with the exercise of such discretion only if he has acted upon a wrong principle or if he has allowed extraneous or irrelevant matters to guide or affect him or if he mistakes the facts or if he does not take into account some material consideration[3]. We have found none of those things in this case. As such, there is no reason why we should interfere with the exercise of His Lordship's discretion in imposing a 6 ½ years sentence on the appellant.

As said in Skinner v R[4], a Court of Criminal Appeal is not prone to interfere with the Judge's exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence, but short of such reasons, the Court will not. We would add that the appellant was on bail for 17 months of the delay period. This is an important consideration in determining whether or not the delay was unreasonable.

Court of Appeal of Solomon Islands

Penai v Regina [2012] SBCA 17; CRAC15.2012 (2 November 2012)