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R v Apaniai [2022] SBHC 66; HCSI-CRC 551 of 2020 (2 August 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 551 of 2020

REGINA

V

JAMES APANIAI

AND:

GEORGE KOKORI

Date of Hearing: 29 July 2022
Date of Decision: 2 August 2022

Mr. John Wesley Zoze for the Crown
Mr. Benham Ifuto’o and Oxley Limeniala for the Defendants

SENTENCE

Bird PJ:

1. The defendant Mr James Apaniai was originally charged for murder contrary to section 200 of the Penal Code (cap 26). He was jointly charged with George Kokori. Upon negotiation between the defence and the crown a nolle prosequi was filed in respect of the murder charge. They were both discharged of murder. By amended information filed on the 28^th July 2022, Mr Apaniai was charged with 1 count of manslaughter contrary section 199 of the Penal Code and Mr Kokori was charged with 1 count of assault causing actual bodily harm (ACABH) contrary to section 245 of the Penal Code. On the 29^th July 2022, both defendants pleaded guilty to the respective charges against them and they were convicted accordingly. They now appear before me for sentence.
2. The charge of manslaughter is a serious offence and carries a maximum sentence of life imprisonment. For the offence of ACABH, the maximum sentence is one of 5 years imprisonment. This court nonetheless is empowered under section 24(2) of the Penal Code to impose a shorter sentence than the one prescribed, depending on the peculiar circumstances of each case.
3. The combined facts of your case are as follows:

The deceased was an employee of Kaleco logging company as a security officer. The 19^th June 2020 was their pay day. After receiving his wages, he boarded the company truck and went to his home at Kiu, West Areare. That night he bought some beer and drink with one of his friends. Between 3.00am to 6.00am on the 20^th June 2020, the deceased went to Mr Apaniai’s area at Onepara village and caused some disturbances. Mr Apaniai talked to him and led him away. After being led away, the deceased was again seen at Onepara village at about 6.00am.
A landcruiser belonging to the company came to Kiu village to drop a worker off. There were other passengers in the said vehicle. On their way to Kiu village, they stopped at Onepara village because one Malaysian employee wanted to get medicine from the nurse who was also Mr Apaniai’s wife. When they arrived at the nurse’s house, a woman told them to take the deceased back because he was causing disturbances in the area. At that time, the deceased went to the landcruiser and asked for smoke. He was told there was no smoke. The deceased then climbed into the cabin of the landcruser and then went out again. He then climbed onto the trailer and smoked. He then climbed out and climbed into the cabin again. It was then that Mr Apaniai approached the deceased and told him to go back to his house because he was making a lot of noise and was disturbing.
The defendant then tried to pull the deceased out from the vehicle but he held on tightly on the door of the vehicle. Mr Apaniai continued to pull the deceased and they both fell to the ground. Mr Apaniai stood up and pushed the deceased and told him to go away. The deceased continued shouting and Mr Apaniai landed a punch at the back head and neck area of the deceased. The deceased fell to the ground and got up again. Mr Apaniai pushed him to the main road and Mr Kokori came and landed a punch on the deceased right side face. The deceased sustained abrasion on the right side of his head. He was pushed to the main road and he went his way.
On the same morning, 3 women from Kiu village went to do marketing at Siuwa village. They passed through Onepara village. They saw the deceased walked towards them. The deceased was not wearing any shirt and they noticed there was a swelling on the left side of his face and some blood stains on his neck. The women asked him what happened and he said he was assaulted. They went together to the market where they bought pudding and ate. The deceased then told the women he felt pain on his neck and the back of his head. One of the women Belinda massaged him but stopped because it was painful. The deceased then slept there and the woman left him. When the deceased woke up, he asked a person namely Samuel Warakau to take him back to the other side of the river. He also asked Samuel to massage his neck because it was very painful.
They then took a canoe and went across the river. As the deceased went out he could not walk properly and appeared to be in pain. He laid down on the beach. Around 2pm on the 20^th June 2020, the deceased went to a house at Siuwa log pond. He was shivering with cold. At about 7.00pm a security officer returned to Siuwa log pod with his wife. When they reached their house they saw the deceased laying on a stool in front of their house. He was vomiting. The security officer asked the deceased what happened and the deceased told him that his head was very painful. He asked the security officer to massage the back of his head. The deceased told him he was assaulted and could not talk further and was breathing heavily. The security officer was afraid the deceased might die so he ran to Onepara village to get the nurse. The nurse called a company truck to pick her and the deceased to Kiu clinic. On the 21^st June, at about 6.30am, the deceased was confirmed dead at Kiu Clinic.
An autopsy was carried out by Dr Roy Roger Maraka on the 23^rd June 2020 on the deceased body. Dr Maraka believed the deceased died from a left subdural haemorrhage as a result of blunt trauma (s) to the head. The haemorrhage was present under the dura of the left side of the brain. The most likely cause of the bleeding was blunt trauma to the head. There was evidence of injuries on the head, an abrasion on the right side of the head and a bruise on the upper lip. They could be caused by kicks, hit with fist or hit with hard objects.

4. After having stated the facts of your case, I will have to note the circumstances surrounding the commission of your offending, I must weigh the aggravating features to the mitigating features to assist me in the imposition of the appropriate penalties against you.
5. It was submitted by Mr Zoze of counsel for the crown that an aggravating feature in your case is the loss of life. The defence had counter that argument and said it is an element for the charge of manslaughter. It is my view that the fact that the deceased had died is an aggravating feature in this case. See the case of Popoe v Regina [2015] SBCA 20 SICOA- CRAC 42 of 2014.
6. It is further submitted by the crown that another aggravating feature is the vulnerability of the deceased. From the agreed facts, the deceased was drunk and incapable when he was assaulted by both of you. You were both sober minded on the day of the incident. As matured and responsible villagers, you could have calmly led the deceased back to his house. The assault on him was unnecessary to say the least.
7. On your behalf it was submitted by Mr Limeniala of counsel that you have both pleaded guilty to the respective offences that you are charged with. Your early guilty pleas show that you are remorseful and that you have owned up to your offending and willing to face the consequences of your actions. You have save the courts time and resources in having to conduct a trial into the matter. It is also noted that no weapon was used by you in this offending.
8. In respect of the defendant Mr Apaniai you are 44 years old. You were a primary school teacher. You are married with 4 children and they are all attending school. You have no previous conviction which makes you a first offender.
9. It is further submitted that the incident was an unfortunate one. There was no pre-meditation and no weapon was used in the assault. It is noted that you have been in pre-trial custody since 12^th August 2020 to date. This means that you would have been in custody for a period of 1 year, 11 months and 21 days. That period of time will be taken into account in your sentence.
10. In respect of the defendant Mr Kokori, you are just 23 years old and single. You have no previous conviction which also make you a first offender. It is noted that there was no pre-meditation for the commission of the offending by you. It was a very unfortunate incident which turned out tragic for the deceased.
11. I have noted that you are a youthful offender and you have an opportunity to rehabilitate yourself. Learn from this mistake and do not reoffend in future. I have also noted that you only hit the deceased once.
12. I have heard that you have been remanded in custody since the 12^th August 2020. To date you would have spent a total period of 1 year, 11months and 21 days in pre-trial custody. That period of time will be taken into account in your sentence.
13. Having noted the facts of your case, together with the aggravating and mitigating features herein, I will then have to consider and take into account previous cases of the like nature. For the manslaughter charge against Mr Apaniai, I am greatly assisted by the principles laid down by the Court of Appeal in the case of Rongodala v R (No.8 of 2006) [2006] SBCA 3, CA-CRAC 008 of 2006. In that case the Court of Appeal referred to a broad range of factors which impact upon the level of sentence for manslaughter. The factors included but not limited to:
    1. The age of the offender
    2. Previous criminal history of the offenders (previous convictions involving violence, provocation, intoxication)
    100. Type of weapon used
    4. Persistence of the attack
    5. Vulnerability of the victim
    6. Relationship between the parties

The court of Appeal was also of the view that when a weapon is used the starting point should be one of 6 years imprisonment.

14. In the case of Mr Apaniai and upon consideration of the facts of your case. I will put your starting point at 4 years imprisonment. According to the facts, there was some persistency of the attack and the deceased being drunk and incapable had placed him in a vulnerable position. I would therefore increase your sentence by 12 months. For the mitigating features and especially the early guilty plea in this case, I would reduce your sentence by 2 years. Total sentence to serve is one of 3 years imprisonment. I direct that the time spent in pre-trial custody be deducted from the total sentence.
15. In respect of the case against Mr Kokori, the cases referred to by both counsel puts the range of sentences from a suspended sentence to one of 3 years imprisonment. In your case after having considered the facts, I put your starting point at 12 months imprisonment. For the aggravating features I increase that sentence by 6 months. For the mitigating features and especially your early guilty plea, I reduce your sentence by 10 months. Total sentence to serve is one of 8 months imprisonment. Since Mr Kokori had spent about 2 years in pre-trail custody, he is to be released at the rising of the court.

Orders of the court

1. The defendant Mr Apaniai is convicted of 1 count of manslaughter contrary to s 199 of the Penal Code (cap 26).
2. He is sentenced to 3 years imprisonment
3. I direct that the time spent in pre-trial custody to be deducted from the total sentence
4. The defendant Mr Kokori is convicted of 1 count of ACABH contrary to section 245 of the Penal Code (cap 26)
5. Mr Kokori is sentenced to 8 months imprisonment
6. Mr Kokori is to be released at the rising of the court
7. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge