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Regina v Lunga [2013] SBHC 175; HCSI-CRC 196 of 2012 (25 October 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 196 of 2012

R

v

COMMINS LUNGA

Coram: PALLARAS J
Crown: Ms Florence Joel
Defence: Mr Michael Holara
Hearing Dates: 21 October 2013
Sentence Delivered: 25 October 2013

SENTENCE

1. On 25the October 2013 the prisoner was convicted of one count of murder contrary to section 200 of the Penal Code [Cap. 26] ("the Code").
   
2. That section provides for a mandatory penalty of life imprisonment to be imposed upon conviction for murder. In the case of Regina v Mostyn Ludawane [2010] SBHC 106, Chief Justice Palmer held that a trial judge could make a recommendation as to a minimum term to be served before parole eligibility would arise.
   
3. This decision followed the passage of the Correctional Services Act (2007) and the Correctional Services Regulations (2008), which provided a discretion in the Court to consider whether to specify a minimum term in a sentence of life.
   
4. Section 73 (5) of the Correctional Services Act (2008) provides:
   
   1. The functions of the Parole Board are to make recommendations to the Minister relating to –
      
      • (a) the release on licence of any person serving a sentence, including a sentence for life, or to order the return to the correctional centre of any person who has been released on licence; (my emphasis).
        
5. It has been submitted to me that no Parole Board is currently constituted so that any recommendations for minimum terms cannot be applied. If this is in fact so, it is an appalling abuse of the rights of those incarcerated and should be promptly rectified by the Attorney General and the relevant Minister.
   
6. In the expectation that in the future this failure in the criminal justice system will be rectified, I note that under the legislation and regulations, the Minister receiving a recommendation from the Parole Board must, before granting parole, seek the opinion where possible of the trial judge. As this opinion may be sought many years after the sentence is imposed, it is only prudent for the trial judge, in appropriate cases, to make appropriate recommendations at the time of passing sentence.
   
7. In this regard the Chief Justice in Ludawane, in citing with approval the English decision of R v Sullivan {2005] 1 Cr. App. R., noted three starting points marking the broad range of seriousness in conduct which may constitute the offence of murder. They were –
   
   1. Exceptionally high in seriousness, the appropriate sentence would be life.
      
   2. If the level of seriousness is particularly high, the starting point would be thirty years.
      
   3. In cases where the circumstances can be regarded as unexceptional, sentences would start around 14-15 years.
      
8. It is unnecessary at this time to discuss the usefulness of these precise definitions and descriptions of various categories of murder. What is obvious, however, is that not all offences of the same type have the same degree of heinous or criminal conduct involved and that while the consequences of murder are equally serious in each case where a person's life is taken, the manner in which that occurs can vary greatly.
   
9. Should any Parole Board convened in the future be tasked with a consideration of this case, it is in the context discussed above that I indicate that this is not a case accompanied by significant aggravating features and is one which, in terms of Ludawane's case, I would categorise as unexceptional. That being so, I have made recommendations to the Governor- General and the Parole Board in a sealed envelope as to an appropriate sentence to be served before being eligible for parole.
   
10. The Order of the Court is that the prisoner be sentenced to life imprisonment.
    

THE COURT