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Regina v Popoe [2014] SBHC 155; HCSI-CRC 77 of 2010 (6 November 2014)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 77 of 2010

REGINA

-V-

JOHN POPOE

HEARING : 30 October 2014
Sentence : 6 November 2014

F. Joel (Ms) for the Crown
H. Blundell for the Defendant

Palmer CJ.

1. You have been convicted of the offence of manslaughter after trial on 14 October 2014. The offence of manslaughter is one of the more serious offences in the criminal law in this country. Its' seriousness is reflected in the maximum sentence of life imprisonment that can be imposed on conviction. The gravity in the criminality of the offence is recognised by the fact that a life has been unlawfully taken away suddenly.
   
2. There are of-course varying degrees of seriousness depending on the circumstances of each case, the offence, offender and the presence of aggravating and or mitigating factors. Each case is to be considered on its own merits to arrive at an appropriate sentence.
   
3. I take note of Counsel's submissions and case authorities that have been referred to and thank Counsels for their written submissions.
   
4. This case however, should be distinguished in seriousness as one of those cases falling within the category of domestic violence cases with drastic consequences for the victim and others. This type of case borders on a charge of murder although in this instance the Director of Public Prosecutions had opted for the lesser charge of manslaughter.
   
5. This type of violence occurs within the confines of the home and family setting, for which over the years women groups, family groups, churches, non-Government organisations, including the Police have been very vocal about and repeatedly urged that this type of violent offending be curtailed. It is not something, which cannot be controlled, rather it is within the power of the perpetrator to stop and desist from. It has been pointed out so many times that this is more an attitudinal problem than cultural or anything else. Domestic violence cases are a phenomenon the world over. It occurs in almost every country not only in Melanesia and many organisations and stakeholders have actively sought to highlight this problem so that it is addressed aggressively by everyone in the community and not swept under the carpet. The courts too, not only in this country but in other jurisdictions have duty to ensure that the law which denounces this type of conduct is enforced firmly, fairly and consistently.
   
6. The manner in which the unlawful act was effected in this case resulting in the fatal injury caused, quite contrary to what Counsel for the defendant suggests, places this case in the upper range of seriousness. The act of sitting on the shoulder of the deceased cannot by any standards be accepted as normal, reasonable, or excusable, to the contrary, inhuman and cruel.
   
7. If it is to be described as unique it is because it demonstrates callousness and the absence of any sense of care, concern and consideration on the part of the defendant.
   
8. While the defendant has not denied from the outset what he did, no logical or reasonable explanation has been provided other than that he did this because he was angry. No one in his right mind would think of doing this, a fortiori, to a loved one. This is why I had mentioned this case borders on murder, where there is evidence of an intentional act.
   
9. The attack was unprovoked, unexpected and unwarranted on a defenceless vulnerable unsuspecting victim weaker by virtue of her sex or gender as a female, a woman and unable to stand up to defend herself even if she could, not from an enemy outside but from her own husband. She has every right to be treated with respect and dignity as the wife of the Defendant and does not deserve to be killed in such a painful manner. She died an excruciating death because of what the defendant did.
   
10. This is what distinguishes this case from others in terms of seriousness.
    
11. The community cannot and does not tolerate this type of behaviour from men who think they can get away with this type of assault with fatal consequences, lightly. Physical violence in the home by any partner is unacceptable and must be stopped. Any party in a family setting must be able to resolve their differences, disputes, disagreements or grievances peacefully or without having to resort to physical violence. I bear in mind the principles of retribution and deterrence in this case. As stated in R. v. Rushby[1] quoting the judgment of the Court of Appeal of New Zealand in R v. Radich[2]:
    

" ...one of the main purposes of punishment ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment."

12. As a result of the assault a life has been taken away abruptly and needlessly, a future and destiny deprived and so many other innocent lives affected through one callous act.
    
13. I note his mitigating factors made on his behalf, that this is his first time to appear in court and to be in trouble with the law. He has cooperated with police from the outset. I note he did try to help out after the incident but it was already too late.
    
14. I note the sentence of imprisonment will be hard on his family, in particular his children but he should have thought of them before assaulting his wife in this manner, for his love and concern for his children cannot and should not be separated from his wife (the deceased). If he was really serious about the care of his children then he should have also been caring and considerate enough in how he had treated his wife, the deceased.
    
15. I note compensation has been paid to assist with reconciliation and to facilitate the healing process amongst family members and relatives; that is to be commended as it is a necessary part in allowing the defendant to be accepted back into the community especially after release from prison.
    
16. I also note his family circumstances, that he has 8 children and the majority rely on him. Four of them are adults while the other four are aged between 8 – 17 years.
    
17. I take into account that there has been some delay in this case but partially contributed to by the defendant. For almost a year (2012) he could not be located.
    
18. I note submissions made on behalf of the defendant that he is sorry for what has happened. That however must be balanced with the fact a trial has had to be held in which the causal link of death from the assault had been challenged. His remorse has to be balanced with that fact.
    
19. He does not have the benefit of a guilty plea.
    
20. This case borders in seriousness, in terms of the circumstances of offending, on a sentence of life imprisonment. Foreseeability of grievous harm cannot be totally excluded in this case for the defendant cannot say he did not know, or could not foresee that by his action it was bound to cause grievous harm to the deceased. Sitting on the shoulder of an unsuspecting victim forcefully is bound to cause very serious internal injury and he cannot have failed to realise what his actions would have caused, especially where it is done in anger. The medical opinion and finding have been fairly consistent and clear that given the case scenario it was more probable than not that the actions of the defendant caused the spleen of the deceased to be ruptured, from which the deceased died as a result of excessive internal bleeding. No other reasonable explanation or cause has been proffered.
    
21. I am satisfied a sentence of 15 years imprisonment is warranted in this case. Giving credit for the delay, his cooperation with police, his personal family circumstances, that reconciliation has been established with payment of compensation and that he is a first offender, I reduce that further by 5 years. He is therefore sentenced to 10 years imprisonment. The period spent in custody is to be taken into account and he has a right of appeal against conviction and sentence if aggrieved by the decision of the court.
    

Orders of the Court:

1. Impose sentence of 10 years imprisonment.
   
2. The period spent in custody is to taken into account.
   

The Court.

^[1] [1977] 1 NSWLR 594, Street CJ at page 597
^[2] [1954] NZLR 86 at 97