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R v Kuki [2024] SBHC 194; HCSI-CRC 404 of 2022 (22 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 404 of 2022

Rex

V

Fredrick Kuki

Date of Hearing: 6 December 2023 (Submissions term)
Date of Sentence: 22 October 2024

Appearance:
Manu O for Prosecution
Ifuto’o B for Defence

SENTENCE-SETTING OF MINIMUM TERM OF IMPRISONMENT

INFORMATION (THE CHARGE AND ELEMENTS)

1. I found the prisoner Fredrick Kuki guilty of murder contrary to section 200 of the Penal Code, after trial.
2. The Information was filed on 11 October 2022. Fredrick Kuki pleaded Not Guilty to the Information. The Information states as follows:
   • Statement of Offence
   • Murder: contrary to section 200 of the Penal code [Cap 26].
   • Particulars of Offence
   • That Fredrick Kuki of Kodalovi Village, Aola area, Guadalcanal Province between 11 and 12 May 2022, at Ngalipoguru, Aola, Guadalcanal Province, did murder a person namely Obed Manearea.
3. The trial was proceeded with in May, June and September 2023. The verdict was delivered on 3 November 2023.
4. The facts agreed to by both Counsels for the Defence and Prosecutions, prior to trial, if I may repeat those facts here, are as follows:
   • (i) The accused is Fredrick Kuki of Kodalovi Village, Aola area, Guadalcanal Province; whereas
   • (ii) the deceased is Obed Manearea of Komavaulu Village, Aola, Guadalcanal Province;
   • (iii) The alleged incident occurred between the 11^th and 12^th of May 2022 at Ngalipoguru, Aola area in Guadalcanal Province. The offending arose from an alleged sorcery incident referred to as ‘vele’in the community.
   • (iv) Prior to the incident five houses in the village were burnt down on 10 May 2022, including the deceased’s house. The deceased had escaped.
   • (v) The defendant met the deceased at his son Raymond Leua’s Copra Shed (Air Drier).
   • (vi) The defendant attacked the deceased by kicking him on the right leg. The deceased moved towards the side of the river. He used a bush knife to whip the deceased on the back two times.
   • (vii) The defendant tied the hands of the deceased with a rope and led him to the Abalolo tree. The Defendant left him underneath the Abalolo Tree and returned to the village.
   • (viii) A post mortem was conducted by Dr Rogers Maraka on 13 May 2022 two days after the incident. The Autopsy Report revealed that cause of death was Asphyxia (lack of oxygen) as a result of strangulation of the neck.
5. As I noted in the judgement, it was accepted by the Defence that the prisoner did not deny that he tied the deceased hands with a rope and led him underneath the Abalolo tree, however, he contended that he did not do anything further to the deceased and just left him there.
6. As it had transpired, however, I found the prisoner guilty of the offence of murder. This is what I stated in the judgement.
   • “I am satisfied beyond reasonable doubt that it was the accused who tied the deceased on the neck with a bush vine. He had tied his hands earlier with a rope. That when the accused did so, he had an intention to cause the death of or grievous bodily harm to Obed Manearea.”
   • “Accordingly, I find that the prosecutions have proven its case beyond reasonable doubt that the accused with malice aforethought, strangled the deceased on the neck with a bush vine which resulted in the deceased suffering from asphyxia (lack of oxygen) which led to his death.”

DISCUSSION ON SETTING OF MINIMUM TERM

7. In R v Taiga^[1], this court at paragraphs 18-20, referring to Ludawane v Regina [2017] SBCA 23, set out the legal basis for setting out a minimum term in a mandatory sentence of life imprisonment in Solomon Islands.
   • “18. For the crime of murder there is a mandatory sentence of life imprisonment. The Court of Appeal decision of Ludawane v Regina [2017] SBCA 23 held that with the legislative changes to the Corrections Services Act and Regulations, it is now necessary to set a minimum term in sentences of life imprisonment for murder.
   • 19. At paragraph [15] of that judgement in Ludawane, the Court followed the English case of R v Secretary of State for the Home Department Ex Parte Anderson [2002] UKHL 46 and said:
     • “We adopt without reservation the approach set out in Anderson and confirm that when sentencing an offender to a mandatory sentence of life imprisonment it is incumbent on the sentencing judge to fix a minimum term of imprisonment which the offender must serve prior to his or her release on licence (termed in the legislation ‘parole’).”
   • 20.At paragraph 17 of Ludawane, the Court continued:
     • “As earlier said, it was not necessary under the former sentencing regime to specify a minimum term as a life sentence was not affected by parole provisions. With the advent of this legislative change the requirement to set a minimum term becomes apparent and with that the need for guidelines as to what minimum terms should be set.”
8. Taiga^[2] was appealed and the Court of Appeal reduced the non-parole period of 25 years imposed by the sentencing judge to one of 18 years imprisonment.
9. The court of Appeal highlighted in Taiga v Rex^[3] that murder is always a heinous crime.
   • “14. Murder – that is, causing the death of another person with intent to kill or to cause grievous bodily harm - is always a heinous offence. Solomon Islands law provides that an adult offender who is convicted of murder must always be sentenced to life imprisonment.
   • 15. Objectively, however, the circumstances in which murders are committed and the levels of criminality involved vary quite widely. While a sentencing court has no discretion in fixing the duration of the term of imprisonment it imposes for murder, it has some discretion in fixing the ‘non-parole period’ – that is the minimum time the offender must serve in prison before becoming eligible to apply for parole. Whether he or she is granted parole is a matter to be determined by the Parole Board, not the sentencing court.
   • 16.Sub-regulation 5(1) of the Correctional Services (Parole) Amendment Regulation 2020 provides –
   • (1) Subject to sub regulations (3) and (4), a convicted prisoner who is serving a life sentence may only apply to the Board for parole if the prisoner has served:
     • (a) the minimum term of imprisonment set by the Court on
     • sentencing the prisoner; or
     • (b) if no minimum term was set – at least 15 years of his or her effective sentence.”
10. In its discussion of the approach a sentencing court is to take on murder cases, the Court of Appeal stated as follows, see: paragraphs 17-19 in Taiga v Rex^[4]:
    • 17. In Ludawane v R [2017] SBCA 23 this Court provided a framework to guide sentencing Courts in setting the minimum term a prisoner convicted of murder must serve before becoming eligible to apply for parole. Drawing on practice in the English criminal courts,[1] it described three categories of murder cases according to the gravity of the offending. Then it set a nominal but substantial non-parole period for each category, intending that the sentencing court would use that as the starting point in fixing the non-parole period in the case at hand. It envisaged that the sentencing judge would then make an upward allowance for any aggravating features followed by a downward allowance for mitigating factors. In other words, the non-parole period should be fixed as follows:
      • Starting point (according to category of offending) PLUS allowance for aggravating factors MINUS allowance for mitigating factors.
    • 18. The three categories in Ludawane are –
      • (i) those that attract ‘the normal’ starting point of 12 years - for example, those involving the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other.
      • (ii) those that attract a starting point of 15 or 16 years - that is, cases where the offender’s culpability was exceptionally high, or the victim was in a particularly vulnerable position. In Ludawane the Court provided a non-exhaustive list of eleven features of a murder in this category. They included that the victim was vulnerable and the infliction of extensive and/or multiple injuries before death.
      • (iii) the most serious cases - for example, those involving a substantial number of murders, or where there were several of the factors identified as attracting the higher starting point of 15 – 16 years. In such cases a substantial upward adjustment might be appropriate. In exceptionally serious cases, the non-parole period might be as much as 30 years or the Court could say that there was no minimum period which could properly be set in the particular case.
    • 19. Factors which would warrant an upward allowance for aggravated offending include premeditation and being armed with a weapon in advance.

The higher starting point of 15/16 years

11. The Court of Appeal outlined in Ludawane v R, a non-exhaustive list of eleven features of a murder in this category.
    • “N.13 The higher starting point will apply to cases where the offender’s culpability was exceptionally high, or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: -
    • (a) the killing was ‘professional’ or a contract killing;
    • (b) the killing was politically motivated;
    • (c) the killing was done for gain (in the course of a burglary, robbery etc.);
    • (d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness);
    • (e) the victim was providing a public service;
    • (f) the victim was a child or was otherwise vulnerable;
    • (g) the killing was racially aggravated;
    • (h) the victim was deliberately targeted because of his or her religion or sexual

orientation;

(i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing;
(j) extensive and/or multiple injuries were inflicted on the victim before death;
(k) the offender committed multiple murders.

12. The Court of Appeal went further to state,
    • “It is incumbent upon a sentencing judge to expose his or her reasoning in arriving at the sentence ultimately imposed.”

Aggravating features

13. The prosecutions submitted the following aggravating features:
    1. The use of a weapon. In this case, a knife was used as a weapon. The knife was used to assault the deceased at the copra shed.
    2. The deceased was unarmed.
    3. The attack was revenge on an allegation of black magic. The defendant went and searched for the deceased, met him at the copra shed dryer, assaulted him, uttered hateful words, tied his hands and legs, led him to the abalolo tree, tied a rope around his neck and attached it to the abalolo’s root which led to the death of the deceased. Thus, the evidence shows that the offending was pre-meditated. If he had not premeditated or pre-planned killing, he would have left the deceased at the copra drier and gone his way after the assault.

Mitigating factors

14. The defence submitted that the prisoner is a first-time offender. In other words, this is the first time the prisoner has a brush with the law. He has been a law-abiding citizen for the past 40 years of his life.
15. With regard to starting point, the prosecutions submitted that the appropriate starting point for this case should be 15 years.
16. Defence submitted that it should be the normal starting point of 12 years; after taking into account the aggravating and mitigating factors, court should impose a minimum term of 10 or 11 ½ years’ imprisonment.

DETERMINATION

17. Both counsels justified their submissions on the minimum term by referring to previous cases that have been decided on starting points in like matters.
18. Whilst those cases provide helpful guide, each case is to be decided on its own merits.
19. I am grateful for Counsels’ submissions.
20. The attack was a revenge on an allegation of ‘vele, ’that the deceased was accused of practising and using against others, as stated in the Agreed Fact, paragraph (ii).
    • (ii) “The alleged incident occurred between the 11^th and 12^th of May 2022 at Ngalipoguru, Aola area in Guadalcanal Province. The offending arose from an alleged sorcery incident referred to as ‘vele’in the community.
21. I was intrigued by the response of the witnesses when I asked each of them to clarify for what ‘vele’ as commonly known in Guadalcanal culture, is, its nature and form. None was prepared to say, for example the grandson of the deceased, Calvin Bele of Bulugalai Village, in Aola, when I asked:
    • Court: How much do you know about vele or stories about vele?
    • Bele: Mi no savve anything aboutim vele.
    • I know nothing about vele.
    • Court: .... when you heard that Obed Manearea was accused of practising vele did you understand ... what they were accusing him of?
    • Understanding hao nao you meanim yah?
    • What do you mean?
    • When Obed Manearea was accused of practising as you heard, did you understand when you heard about it?
    • Nomoa.
    • No.

Did you have any understanding of what vele is?

No.
No.
Did you ever hear stories from your parents or from your family about vele?
No.
No.

22. Another witness PW Shadrack Manegaua, a 36-year-old man, from Bulugalai, Aola, East Guadalcanal, says this, in his evidence^[5], when asked by court:
    • “JUDGE: I have a question to ask.

Okay.

Counsel for the Defence asked you if the burning of the house belonging to Obed Manearea was due to an allegation of vele. Do you remember that?

No.

No the lawyer asked you that and you said you don’t know.
I just said the burning of the house.

Yes. Whether that was because of the allegation of vele you said that you don’t know. My question is, do you know what vele is, do you understand what vele is?

I don’t understand what vele is and mi no savve wat nao hem luk like a vele and wat type of rope or any stone or wat mi no, I don’t idea with vele.
I have no idea whether it’s a rope or stone I have no idea what vele is.
Did you ever hear stories in your childhood or even as you grow up?
No.

23. Whether these witnesses deliberately refrained from saying so, or were just limited in their knowledge of what ‘vele,’is or was about which the deceased was alleged to have practised, I don’t know. I don’t know why the deceased was accused of ‘vele’ or using ‘vele’ against the prisoner’s wife or others in the community when there seems to have been little knowledge or no knowledge at all about ‘vele’.
24. I accept and take note of the following aggravating factors:
    1. The deceased was accused of practising or using ‘vele.’and so was attacked in that sense;
    2. The use of a weapon. In this case, a knife was used as a weapon. The knife was used to assault the deceased at the copra shed.
    3. The deceased was unarmed and vulnerable.
    4. Sadism is a type of behaviour in which a person obtains pleasure from hurting other people and making them suffer physically or mentally.

black magic. The defendant went and searched for the deceased, met him at the copra shed dryer, assaulted him, uttered hateful words, tied his hands and legs, led him to the abalolo tree, tied a rope around his neck and attached it to the abalolo’s root which led to the death of the deceased. Thus, the evidence shows that the offending was pre-meditated. If he had not premeditated or pre-planned killing, he would have left the deceased at the copra drier and gone his way after the assault.

25. The defence submitted in mitigation as follows:
    • (i) that the prisoner is a first-time offender. In other words, this is the first time the prisoner has a brush with the law.
    • (ii) The prisoner has been a law-abiding citizen for the past 40 years of his life.
26. I note that the prisoner through his counsel did not submit nor expressed any remorse for what had happened to the deceased.
27. I note from Ludawane the Court of Appeal highlighted a non-exhaustive list of eleven features of a murder in the category that attracts a higher starting point of 15/16 years imprisonment. Some of the features include where the victim is particularly vulnerable or there was evidence of sadism, humiliation or degradation of the victim before the killing.
28. I accept the deceased was subjected to an act like torture at the copra shed. He was assaulted with a knife, bound and was taken further inland where he was tied tightly with a rope and strong bush vine by his hands, legs and his neck.
29. I found (as what Dr Maraka testified to) that the prisoner strangled the deceased on the neck with a bush vine which resulted in the deceased suffering from asphyxia (lack of oxygen) which led to his death.
30. When I considered the facts as I found and think about what the prisoner did at the copra shed and at the bottom of the abalolo tree, together with the findings of Dr Maraka, I could not help thinking in consideration of the accepted facts and circumstances in this case, of an agonising death that the deceased might have gone through in the final hours of his life: the deceased having feared for his life after the burning of houses in his village escaped and hid at the copra dryer, the very place he was first relying on for refuse and personal safety. became the first location where he was assaulted struggled for breath and slowly with his vulnerable physical body deteriorated in life until his death.
31. I cannot comprehend the evil and barbarism that engulfed anyone’s conscience in this way.

CONCLUSION and starting point for this case

32. In applying the guide in Ludawane v R^[6] as emphasised in Taiga^[7] in setting a minimum term the prisoner in this case must serve before becoming eligible to apply for parole, this case falls under the second category with a higher starting point.
33. As pointed out in Ludawane above, the sentencing court should fix the non-parole period as follows,
    • “Starting point (according to category of offending) PLUS allowance for aggravating factors MINUS allowance for mitigating factors.”
34. With regard to the factors as discussed and outlined in this sentencing remark, an upward allowance is warranted.
35. In the circumstances of the offending, I identify the starting point of 23 years and with features of aggravation I add 5 years, making it to 28 years.
36. I have taken into account circumstances of mitigation submitted by your counsel; I deduct 2 years.
37. I take into account the aggravating features as well as the mitigating features present in this case.
38. I order that 26 years of imprisonment is the minimum term to serve.

THE COURT
Hon. Ronald Bei Talasasa Jr
PUISNE JUDGE

[1] R v Taiga [2022] SBHC 57; HCSI-CRC 437 of 2021 (14 September 2022)

^[2] Ibid

[3] Taiga v R [2023] SBCA 5; SICOA-CAC 33 of 2022 (28 April 2023)
[4] Taiga v R [2023] SBCA 5; SICOA-CAC 33 of 2022 (28 April 2023)

^[5] Transcripts, page 11, 2 June 2023, Day 4
^[6] Ludawane v R [2017] SBCA 23

[7] R v Taiga [2022] SBHC 57; HCSI-CRC 437 of 2021 (14 September 2022)