HIGH COURT OF SOLOMON ISLANDS
At Gizo

Criminal Case No. 02904

REGINA

-V-

CLEARANCE KILIBIJILI, CHALTON KATALAENA, ESILYN WESLEY, KATALAENA KITU AND ARMSTRONG KATALAENA

Date of Hearing: 7, 8, 9, 10, 11 February 2005
Date of Sentence: 11 February 2005

Peter Little of DPP
Ms. L. Kershaw, Ms. E. Garo and Ms. M. Bird for respective accused

On Sentence for Grievous harm, contra. S226 of Penal Code

Brown PJ: On the facts, proper to plead guilty. 

FACTS

On the night of the 27 July 2002 all accused were involved in a drinking party at Royolo’s house.

An argument erupted between the accused.

After that the accused Armstrong approached the deceased and punched him starting a fight. Eshley then joined the fight. 

The deceased left and changed from a towel into clothes and returned with a stick with which he hit Katalaena causing an injury to his leg. 

The deceased then left. 

Kataleuna then approached some people and insisted on being told the whereabouts of the deceased. One of these people told him. 

After that all the accused came looking for the deceased whilst shouting out threats. The deceased ran to Royolo’s house where all the accused chased him. 

An occupant of the house removed a stick from Katalaena but Clearance took up a piece of 4 x 2 timber about 10 feet long and struck the deceased who was trapped in the corner causing him to almost fall to the ground. All accused were present at least preventing the further flight of the deceased.

In the melee at some stage the deceased also used a broken remnant of a coffee table to defend himself. The table had been used in the attack upon him. The deceased also threw a bottle or bottles at his attackers.

Armstrong approached the deceased and a struggle developed over a coffee table resulting in both men falling into the sea. Armstrong sustained a laceration to the head, which bled extensively as a result of the incident. The laceration was in a v shape and measured approximately 8 cm x 6.5cm.

After falling into the sea, some accused threw bottles at him in the water and no attempt was made to rescue him.

The deceased was dead when removed from the water. On his body were an 8cm laceration to the forehead and scalp and a minor laceration to the ear. There was also blood coming from inside the ear.

Imprisonment

A sentence of imprisonment is necessary to recognize the public conscience and community need for a reduction of violence, reflected in the call for the Regional Assistance Mission.

Likelihood of re-offending.

These men’s character, antecedents, age and mental condition satisfy me that it is unlikely they will offend in this fashion again. That is to their benefit.

The distinction between on remand and in custody on sentence.

The fact that these men, related family, have been taken from their community, held in custody pending trial, must be seen by their community as conclusive of punishment for there is no likelihood of the distinction between sentence and in custody awaiting trial being explained amongst the community generally, whose rudimentary understanding of the criminal law in these villages most probably reflects whims of the local constabulary. The fact that they have been incarcerated is fact enough, for their relatives and community.

Prevalence of offence in the prisoners’ community.

This court should also take account of the prevalence of this type of offence in this community, but I have no real knowledge of that, suffice to say that it does evidence, a course of conduct towards out-siders which conduct is to be criticized, just as outsiders behaviour in a foreign culture should not give rise to real offence.

Need to sentence according to severity of offence with which they have been charged.

They will be sentenced on the offence to which they have pleaded. The prosecution has been eminently fair in my view, in the manner in which this difficult case has come to this conclusion. I will be making a report to all concerned in relation to the administrative process which may improve through greater forethought on all officers concerned during the pretrial call-over process. But that is not for this sentencing process.

Customary compensation may be taken into account as mitigation.

Mitigation is not axiomatic on a settlement by customary ceremony, but here will be a factor calling for a reduction in penalty.

The earlier murder information.

It is appropriate, since the trial on the earlier indictment has ceased by acceptance of this plea to the information under S.226, that the earlier information be concluded at this time.

I do not believe the Director could in law, file a nolle proseque after having accepted the lesser plea to s.226, and consequently I do not propose to allow the continuation of the proceedings in the earlier information laid, pending expiry of the appeal period. If mistakes are subsequently shown in the manner in which the plea or sentence on this information under S.226 is taken, then that is related to that issue and only that issue. It should not, as it were, allow the Crown another chance at the earlier information. For these 5 have pleaded with legal representation, guilty to this later information in the knowledge that the earlier indictment will not be proceeded with and the trial did not proceed.

I formally accept the plea in satisfaction of this later indictment and in the circumstances acquit and discharge you all on the earlier murder information.

Purpose of criminal law.

The purpose of criminal law, (like customary law amongst similar custom groups), is for the protection of the wider community. No obligations were owed far away tribes but with the advert of nationhood, the necessity for protection of all members of society, not just the tribe, calls for the need to provide sanctions against those who break rules seen by the Government and its people generally, as necessary for the protection of life, liberty and may I say it, the pursuit of happiness. If the rule forbidding murder for instance is breached then by this imposed law, the offender can expect to receive a severe punishment from the State (irrespective of how the killing is viewed by the tribe for in some cases it is sanctioned), which has the obligation and so seeks to maintain, order amongst all its citizens by such punishment. The assurance given by the government’s universal rules binding all people irrespective of class or colour, and the policing of such rules, that they have the protection of the law and thus reducing their risk of physical harm, or damage to their property, or corrupt practices affecting their welfare, so affords them the opportunity for happiness, free from such fear or risk.

This criminal behaviour, if left unbridled, re-kindles again the old ways, and takes from society generally, the opportunity to grow, free from the oppression of fear to life and personal liberty. 

I sentence on the severity of the acts which are described in the agreed facts, and must ignore the fact that a man lost his life, I need to balance the rights of all individuals not forgetting, as I say the primary right of society generally to be protected from such criminal behaviour.

Earlier directions to counsel.

In view of the directions given all counsel earlier in the week to recognize the manifest difficulties in concluding this particular trial in the circumstances enumerated (including the unavoidable late commencement; the apparent lost original documents statements, the large expense and physical difficulties in collecting, moving and accommodating witnesses to Gizo, the apparent late service of witness statements on the defence, the lost records of interview the paucity of medical evidence in the absence of a post mortem etc) and the need to pay proper regard to the administration of justice in the circumstances of the country at this time, the Director of Public Prosecutions quite properly as it turned out chose to substitute the lesser information alleging grievous harm in substitution for that original information charging murder.

Mr. Little addressed, allowed over objection on sentence, for he was anxious to raise 3 important aspects which he argued, should not have an unnecessarily favourable effect on my sentencing discretion. They were:

·	The utilitarian value of the plea (saving as it has very great continuing expense to the Crown;

·	The importance of the general deterrence aspect in sentencing in matters such as this;

·	The Crown’s reasons for not pursuing the murder information in the light of the medical report of Nemaria Nonga (Senior Nurse officer, Seghe AHC) and Dr. Divi Oga’oga (given most recently on request by prosecution to comment on findings by the Senior Nurse officer in that contemporaneous report of death.

The Crown’s reasons for not pursuing information for murder.

Dealing with these aspects in reverse order, it is clear from the facts that:

"Armstrong approached the deceased and a struggle developed over a coffee table resulting in both men falling into the sea. Armstrong sustained a laceration to the head which bled extensively as a result of the incident".

The deceased Boranwea Tebi was dead when removed from the water. It would seem he may have been unconscious or unable to move from the water before he was taken to the shore adjacent for the facts relate:

"After falling into the sea some accused threw bottles at him in the water and no attempt was made to rescue him".

There was no post mortem, so the cause of death was not established. Earlier Mr. Little referred me to the English Court of Criminal Appeal case of James Curley (Ct of CA 1909, 109) where that court, faced with evidence that the deceased’s jumping out of the window was contributed to by the appellant’s unlawful act (by rushing at her and putting her in fear). And Mr. Little sought solace in that case by referring to it as justification for presenting the information charging murder. For he had alleged that it was these prisoners’ unlawful acts by pursuing the fight to the deceased that led to the death.

Of course the Crown must have established beyond reasonable doubt that these men were present at the scene with the intention of encouraging or assisting in the killing of the deceased and thereby aiding in its commission, yet Mr. Little rightly points to the relative paucity of information in the actual medial report of the Senior Nurse, in the absence of a post mortem. For on the agreed facts, both Armstrong and the deceased fell together from the window; one survived and one died. In these circumstances the absence of a finding on the cause of death must leave a gap in any chain of causation for surely the fall by both from the window, if it was a contributing factor to the death, cannot in the absence of direct evidence to the contrary, be but a mischance or accident in the heat of the melee.

(The prosecution has the sole responsibility of conducting the proceedings and has to make a reasoned decision on what it has to deal with once it has spoken with the witnesses.)

But that mischance cannot be held against the account of these 5 men on the facts given on the 2nd information. The particular manner in which the deceased met his death then, justifiably gave the Crown pause by the absence of proper medical evidence. The lesser information was adopted by the Crown as proper and preferable to a trial on what may be described as a chance or mischance.

The importance of the general deterrent aspect, and the message to the community if the prisoner were released on the conclusion of the trial.

By speaking to the witnesses in court I sought to allay unreasonable or ignorant understanding of the sentencing function of the court. I deal elsewhere with what I consider to be a general need to strengthen the educational knowledge of the community in the ways of the criminal law, but the weight of that need should not rest on these prisoners.

The utilitarian value of the plea.

A plea of guilty calls for a very great discount as has often enough been said. It is unfair to suggest that, because the plea is to be a lesser offence than that originally charged, this obligation to discount should be hedged about with an implied proviso lessening the benefit to the pleader in such circumstances. It cannot, just as the actual saving to the Crown should not form some table of values for such discounts.

Reference to mitigation.

I shall proceed to the matters raised in mitigation by Ms. Bird, Ms. Garo and Ms. Kershaw. All these matters were clearly raised yesterday. I have no need to reiterate them but I accept them as relevant and appropriate in this case. I was especially reassured by the attitude of Katalaena Kitu who will no doubt be a person of influence and light on his return to the village. Again perhaps alcohol has played its insidious part in this awful affair, and Katalaena may see the connection more clearly than I do.

It was clear to counsel that I was minded to impose a sentence that would have meant their release in June or July this year. But on reflection, having heard their plea and satisfied as I am, of their regret over this awful result of the violent altercation not just regret at their incarceration, I am of the view continued incarceration is unwarranted.

An appropriate sentence.

The range of sentences for this offence is to 14 years. As I say the disparity of sentences in the past reflects the manifold differences in the circumstances in which this offence arises, and the types of persons involved. None of these prisoners can be classified as sophisticated understanding the ways of the adopted law or have an appreciation of the workings of the criminal law, or sophisticated sentencing principles applicable. To release at differing times then, would be counter production, and misunderstood by the community into which they return.

Where manslaughter sentences have fallen within the 2 - 6 year range with individual exceptions, I am somewhat constrained to impose a sentence which does not encroach, as it were, onto one more appropriate for that more serious offence.

In the circumstances of this case, on trial if convicted, these prisoners could expect to receive a sentence of 5 years.

Those matters in mitigation reduce it substantially and I particularly note the compensation payment made so soon afterwards. The fact that it was made before these proceedings were concluded is to the credit of these prisoners, irrespective of the circumstances of the arrangement.

Antecedent Report.

That has, coming after consideration of their antecedent reports which are helpful and should be mandatory in all High Court cases, made my task easier in deciding the period spent in custody in all cases is sufficient and an appropriate punishment.

The fact that differentiation of time actually served, has occurred (by virtue of the time Wesley and Kataleana were freed on bail) relates more to the interests of justice at the time of the grant of bail than to any need at this juncture, to enforce an extended stay in prison for these two for another 10 months to maintain parity of sentences. Frankly they were fortunate, they answered their bail and they shall be released with the others.

Explanation for variation of sentences.

The variance in these sentences may be attributed principally to two factors. The state of the prison at Gizo; unsanitary and overcrowded and the satisfaction in the mind of the court of the unlikelihood of re-offending. To exercise mercy in these circumstances is my prerogative.

Esley Wesley - sentenced to the time already spent in custody awaiting trial. To be released on the rising of the court today.

Chalton Katalaena - 2 years 6 months and the remaining days in custody until today. Released on rising of court today.

Clearance Kilibijili - 2 years 6 months and the remaining days in custody until today. Released on rising of court today.

Armstrong Kitu - 2 years 6 months and the remaining days in custody until today. Released on rising of court today

Kataleana Kitu - time spent in custody

Fortunately for some I do not intend to now separate the release date from prison.

You will all serve your sentences, back dated to the date of arrest and you will be released together on the rising of the court.

BY THE COURT