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Regina v Baewaisu [2006] SBHC 80; HCSI-CRC 398 of 2005 (17 March 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 398 of 2005

REGINA

-v-

RICHARD BAEWAISU, MICHAEL HA’ARUMAE,
HUDSON RAMOTAISAE AND SILAS TARO DIUATANA

(Mwanesalua, J.)

Hearing: 14th, 15th, and 16th March 2006 at Kirakira
Sentence: 17th March 2006

Samuel Balea and N.H. Mirou for the Crown
Gabrielle Brown for Richard Baewaisu and Hudson Ramotaisae
Patrick Southey for Michael Ha’arumae and Silas Taro Diuatana

JUDGMENT/SENTENCE

Mwanesalua, J: Richard Baewaisu, Michael Ha’arumae, Hudson Ramotaisae and Silas Taro Diuatana were charged with the murder of Simon Peter Hikori on 20th June 2000 at Bwarikuka village in Arosi 2, on Makira Island. On 14th March the 2006, the Crown withdrew the murder charge. Baewaisu, Ha’arumae, Ramotaisae and Diuatana were accordingly discharged and acquitted of murder. On 15th March 2006, Ha’arumae was charged with unlawfully causing the death of Hikori. He pleaded guilty to manslaughter. Baewaisu, Ramotaisae and Diuatana were charged with unlawfully assaulting Hikori thereby causing actual bodily harm to him. I entered guilty pleas on their own pleas and accordingly convicted each of them for the offence of assault causing actually bodily harm.

The Agreed Facts

On the morning of Tuesday 20th June 2000 on Makira Island, Makira Province, Baewaisu, his wife Nancy Nunuau and daughter Philistus (6 years old) left Tawaiabu village and went to Marawairaha village to cut copra. Baewaisu travelled by canoe while his wife and daughter walked on the road leading to Marawairaha village. The reason for going to Marawairaha village was to cut copra at the family coconut plantation.

Nunuau and Philistus arrived at Stephen Tangia’s leaf hut, and a little while later was joined by Baewaisu. Tangia was not at the leaf hut that morning. Sometime later that morning Ha’arumae and his wife Ethel E’eanimae joined Baewaisu and his family at the hut. The women proceeded to prepare sweet potatoes and banana for lunch.

During the cause of the morning, the two families were joined by Granny Kohu (now deceased), Samson Keto (6 years old), Clifton Wagio (child) including Diuatana and Ramotaisae. While the two women were preparing food for lunch, Baewaisu, Ha’arumae, Ramotaisae and Diuatana stayed at the leaf hut. Hikori was observed clearing land on the hilltop not far from the leaf hut.

Lunch was served and everyone ate. Baewaisu told his daughter to go to the hill and ask Hikori (her grandfather) to come to the leaf hut and have lunch with them. When he arrived was he was served lunch. Baewaisu then told him that the land he was clearing rightly belonged to him and his brothers. They had won a court case (custom court) over it. An argument developed. Baewaisu pushed Hikori, and Hikori retaliated and punched Baewaisu on the left shoulder. Baewaisu fell to the ground. when Ha’arumae, Diuatana and Ramotaisae saw Baewaisu fell down, they started punching Hikori. Baewaisu got up to his feet and punched Hikori.

Diuatana took a piece of wood and struck Hikori on the back of the head. Hikori fell to the ground. Ha’arumae who was holding a bush knife rushed at Hikori and struck Hikori on the right forearm with his long bush knife. The right forearm was completely severed from the body. The autopsy examination of the body states: "examination of the right forearm shows evidence of partial incised trauma with resultant transverse oriented fracturing through the mid shafts of both radius and ulna... The forceful hacking at the level of forearm may in part relate to a detaching fracture above the elbow."[1]

Baewaisu, Ha’arumae, Ramotaisaw and Diuatana took Hikori from the leaf hut and carried him up to the hill where he was clearing the land. They returned to the leaf hut without Hikori. They said nothing to the families about what happened, and then all went separately back home.

The missing body of Hikori was discovered by Robo on Saturday 24th June 2000 on the hill not far from the leaf hut. Robo then informed the family and relatives of Hikori on Hikori’s body. The body was badly decomposed, and had quickly decayed. Burial arrangements took place that day given the deteriorating condition of the body.

A post-mortem examination revealed injuries to the lower back consistent with blunt force that was caused by kicking or a blunt object.[2]

The land is the subject of on going dispute between Hikori and the family of Baewaisu, Ha’arumae and diuatana. It was confirmed that the land was purchased in 1962 for Baewaisu, Ha’arumae and Diuatana by their father Samson Ha’atoara. There is a history of ill feelings between Hikori and the parents of Baewaisu, Ha’arumae and Duatana. The chiefs of the village have dealt with the history of this continuing ill feeling.

Baewaisu, Ramotaisae and Diuatana jointly assaulted Hikori when he was at the Leaf hut with them. Following that assault, Ha’arumae used a long bush knife to cut off Hikori’s right forearm. The fighting was over piece of land that Hikori was clearing that day.

Mitigation

Baewaisu. You are a family man, with a wife and two children, aged 16 and one year old. You pleaded guilty. A guilty plea is a point in your favour because in this case it serves public interest. That public interest is that the plea of guilty has saved considerable time and the expense of a trial. I will treat you as a person of no previous conviction. I will disregard your previous conviction for forgery which you committed almost ten years ago as it was unrelated to the offence you now pleaded guilty. The offence you pleaded guilty to occurred at the spur of the moment.

I consider that your plea of remorse was not genuine. There was no concrete evidence of contrition on your part. There was no compensation paid to the family and relatives of Hikori as an admission of your guilt to them and show your intention to re-establish good relation with them. You have not co-operated with the family and relatives of Hikori to recover his body so that they could give him a decent funeral when his body was still fresh.

I consider your undertaking to reconcile with the family and relatives of Hikori as a mere promise. I place little weight on it because a promise before sentence is liable to be forgotten after sentence has been imposed.

I note that your wife and children were heavily reliant upon you for their support and welfare. And that you did not attend to the funeral of your mother last year as you were in custody. However, the cessation of support to your family is the usual consequence of remand and imprisonment of a spouse.

Ramotaisae. You are a family man, with a wife and a child. You pleaded guilty. That saved time and the expense of a trial. The offence you pleaded guilty to occurred at the spur of the moment. I will disregard your previous conviction for store breaking which you committed more than sixteen years ago. It was not related to the offence you now pleaded guilty. You are a young adult and hard working in setting up your farm.

Your wife, child and sick father rely on you for support and comfort. These ceased when police took you into custody. The cessation of that support and comfort are usual results of remand and imprisonment of a spouse. You expressed remorse for the death of Hikori and the loss suffered by his family and relatives as a result of his death. I do not consider that your remorse was genuine. There was no evidence that your remorse was genuine. My observations to Baewaisu on this point would equally apply to you.

Diuatana. You are of good character with no previous conviction. You pleaded guilty which saved time and the expense of a trial. You have admitted your part in the death of Hikori to the police in your caution Statement. You are single and young, but do have a daughter who is fully supported by her mother.

You, have a sick uncle who missed your support when you were taken into custody. But that is usual when the person rendering such report is being remanded or imprisoned.

You expressed remorse at the death of Hikori. I do not consider that your remorse was genuine. You also made an undertaking to reconcile with the family and relatives of Hikori. My observations to Baewaisu on these two points would apply equally to you.

Ha’arumae. You have no previous conviction. You pleaded guilty which saved time and costs of a trial. You are married with no child. You are aged around 57 years. You have lived a productive life and a law-abiding citizen for half a century. I give you credit for keeping out of trouble until 20th June 2000 when you unlawfully caused the death of Hikori.

You were admitted to KiraKira Hospital on 12th August 2004 and diagnosed with high-blood pressure. You were discharge on 16th August 2004. You have later been transferred and remanded at Rove Prison. You have not told the court what happened to your condition there. It appears that your condition had been stable, otherwise the Prison Authorities would have taken you to see a doctor at the Prison Clinic or the National Referral Hospital.

You admitted causing the death of Hikori in your caution Statement. I think you confessed because you were about to be detected and the burden of your crime was too great.

You expressed remorse at the death of Hikori and made an undertaking to reconcile with his the family and relatives. I consider that your remorse was not genuine. The observations, made to Baewaisu on remorse and reconciliation equally apply to you.

Sentence

You, Baewaisu, was the Spokes person for your family. You invited Hikori to have lunch with you and your family. When he was served lunch, you told him that your family owned the piece of land he cleared that day. That caused the argument which followed. You pushed him and he responded by punching you to the ground. I think there would be no fight if you had not raise the issue about the land and pushed him.

You, Baewaisu, Ha’arumae, Ramotaisae and Diuatana assaulted Hikori in company. Dr. Dodd, the Pathologist who conducted the Autopsy on the exhumed body of Hikori on 20th May 2005, found focal traumatic bone loss from the posterior spinous lumber spines 2, 3 and 4. He said that feature of traumatic bone loss is consistent with blunt trauma applied to the lower back as would be seen after kicking or being struck with a heavy blunt object.

You, Diuatana took a piece of wood and struck Hikori on the back of his head which made Hikori fell to the ground. You, Ha’arumae then rushed to Hikori while he was on the ground and severed his right forearm with your bush knife. Hikori posed no danger to Baewaisu when you struck his right forearm with your knife. Your knife was sharp. Dr. Dood described the injury which you inflicted on Hikori as a "Traumatic loss of one-half of right radius and ulna. Close examination of ulna under magnification identifies a short transverse oriented area which is sharply demarcated from a continues fracture. This small transverse oriented area is straight edged and is entirely in keeping with the application of a sharp dividing instrument. The fracture extends laterally in a nonspecific fashion to involve full thickness of both radius and ulna.[3]"

You, Baewaisu, Ramotaisae, Diuatana and Ha’arumae carried Hikori from the Leaf hut where you assaulted him to the hill where he did some clearing work that day. You did not explain the reasons you did that after Hikori was fatally wounded. I think you did that to conceal his body and conceal your crimes.

The Medical report showed that Hikori died from blunt force trauma and acute blood loss (from the incised amputation of his right forearm).

Assault causing actual bodily harm is a serious offence. Its maximum penalty is imprisonment for five years. I take into account the various mitigating factors said on your behalf by your Counsels. I consider that the appropriate sentence to be imposed on each of you, Baewaisu, Ramotaisae and Diuatana is three years imprisonment, commencing from the first day which each of you went into custody. For Baewaisu and Ramotaisae, that would be on 6th August 2004 and for Diuatana on 13th August 2004.

As for you, Ha’arumae, your case is more serious. A life had been cost. You pleaded guilty to manslaughter, which carries a maximum penalty of imprisonment for life. I take into account the mitigating factors said on your behalf by your Counsel. I consider that the appropriate sentence for your offence is five years imprisonment, commencing from the first day you went into custody. That would be on 6th August 2004.

Puisne Judge

^[1] Doctor Dood’s Autopsy Report at page 7
^[2] Ibid p.7 paragraph 2 and 3
^[3] Dr. Dood’s Autopsy Report at page 6