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R v Haomaerihu [2025] SBHC 76; HCSI-CRC 549 of 2022 (3 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 549 of 2022

REX

V

FLOYD JUNIOR HAOMAERIHU, NICKSON GWALU, HARISON GILO HAKELEA, MATHEW ROCKY MOALA

Date for Hearing: 15 November 2024
Date of Sentence: 3 March 2025

Ms H Naqu on behalf of Tonowane for the Crown
Mr. R. Pulekera for Defendant Floyd Junior Haomaerihu
Mr. L Waroka for Defendant Nickson Gwalu,
Mr. B Harunari for Defendant Harison Gilo Hakelea
Mr. A. Tinoni for Defendant Mathew Rocky Moala

SENTENCING AFTER PLEA OF GUILTY

Faukona, DCJ:

1. By original information filed on 21^st February 2023, all the defendants were charged with one Count of murder contrary to section 200 of the Penal Code.
2. On 17^th July 2023, all the defendants pleaded not guilty to the charge of murder.
3. On 27^th March 2024, the charge of murder was nollied against all the defendants and dismissed and an amended information was filed in substitution on the same day.
4. The amended information now reflected that defendant Floyd Junior Haomaerihu was then charged for manslaughter contrary to section 199 of the Penal code.
5. All the other three defendants were charged for common assault contrary to section 244 of the Penal Code.
6. On 29^th September 2024 all the defendants had entered a plea of guilty to their charges respectively.

Agreed facts of the case.

7. On the evening of 5^th August 2022, about 9:30pm the deceased and a friend picked his wife from work at Rove Prison Service. They were then driving eastward of Honiara. Along the way they dropped the friend at Ports area.
8. On their way the deceased and his wife drove to Bahai first to buy some beers. They bought six blue canoe beers. After buying the beers they drove home to Vara Creek.
9. As they drove into Vara Creek they parked opposite 02 bus stop facing the Mataniko river. On the other side of the road was a market stall where some boys were, and were drinking beer. The deceased and wife were sitting in their car drinking.
10. When the wife started to sip from her second beer the defendants Gwalu and Hakelea approached them and asked for a match but the deceased told them they haven’t got any.
11. The deceased and wife some-how got out and went around to where the boys were standing. Shortly thereafter was an argument with the two boys.
12. A fight broke out and accused Gwalu slapped the deceased’s eye glasses and fell off. The deceased responded by kicking both boys. The accused Gwalu then pushed the deceased away.
13. At that moment the wife of the deceased intervened trying to calm the situation. At that time defendant Moala join the fight against the deceased. The fight then moved in front of Naohaoru’s market stall. The accused Moala then kicked the deceased’s leg.
14. The accused Haomaerihu who was sitting at a market stall opposite the incident, saw his brother in-law in the scene so he ran over trying to stop the fight. However, the deceased turn around and punched him several times.
15. On one occasion the deceased kicked the accused Floyd’s left leg causing him to fall. As he stood up, he punched the deceased causing him to fall on his back and hit his head on the tar road. Accused Floyd then left the scene and went back to the market stall.
16. The deceased was admitted to National Referral Hospital on 5^th August 2022. He was in coma and unable to speak until he passed away on 10^th August 2022 at the National Referral Hospital.

Sentencing Principles.

17. In determining the appropriate sentence, the Court must maintain a balance approach to sentencing.^[1]
18. With amass emphasis done by law of precedent, the courts have developed the principles of sentencing to guide the exercise of discretion in consideration of deterrence, prevention, rehabilitation and retribution. The work of the judge is to decide which principles apply in a given sentence. In some case the judge will give a balance consideration of all the principles, in others a judge will emphasis one principle over the other.
19. In furtherance, the Court should ask itself whether public interest in the case will be served by retribution and deterrence of the offender and other from committing the type of offence, or whether public interest will be better served by rehabilitation of the offended^[2].

Sentencing method.

20. The case of Bara v Reginam^[3], had set out guidelines, where available a judge should identify a starting point. From the starting point the Court must identify the aggravating and mitigating features and how they affect the starting point. Reference should be made to the effect, if applicable, if an early guilty plea.
21. Then the application of the totality principle and a discussion of credit for pre-sentence custody. Where no discount be given, a reason for that decision. When no allowance be made for pre-sentencing period reason should be given as well.

Starting point for manslaughter.

22. The only defendant answerable to a charge of manslaughter is Floyd Junior Haomaerihu, the rest of three others were charged for common assault.
23. The Charge of Manslaughter contrary to Section 199 of the Penal Code carries a maximum penalty of life imprisonment. I must emphasis that in manslaughter cases life is taken away.
24. On the charge of manslaughter there is still no or limited tariff judgment for offending of this nature. In 2015 in the case of Popoe v Regina^[4] the Court of Appeal found there was no authority recognize any tariff as such.
25. However, in the Popoe case the Court of Appeal had set 7 years as a starting point for manslaughter. In difference from that was the minimum pointed out in R v Idu^[5] where the Court of Appeal stated that 4 years starting point is too law. From the two extremes the range can be well identified.
26. In the case of Tapa’amae v R^[6] the Court of Appeal noted that the sentencing judge had set out relevant part of the judgment in Poepoe where the Court of Appeal set 7 years as starting point.
27. After the sentencing judge had considered all the relevant factors, he imposed a 6 years’ imprisonment. The 6 years was affirmed by the Court of Appeal on appeal.
28. I have no doubt the common and ordinary guidelines which I have highlighted in paragraphs (10) and (11) above are applied. If that was so then the charge of Manslaughter should have a starting point of 7 years. And I confirm and apply the starting point in this case is 7 years

Aggravating factors.

29. The prosecution submits three factors as aggravating in the offending in this case.
30. The first is that the injury the deceased sustained cost his life subsequently. The assault did not only cause injury but life of the victim which was taken away by an aggravated action of one of the accused.
31. The on-slaughter by the four defendant who had each played their part in assaulting the deceased is an aggravating feature. Four young man in concert assaulting a single deceased was not proportionate in number and strength. The unproportionate of strength makes it aggravating when the accused was assaulted by three co-accused who eventually met his demise.
32. However, the level of culpability of the 4^th accused in particular is higher than the other 3, because of the fact that he had delivered the final blow which caused the fatal death of the deceased. The Dr.’s report had attributed to this.
33. The deceased was 63 years of age at that time of the incident and all the defendants were in their twenties except for one teen ager. With the defendant and three other co-accused concertedly assaulting the deceased, he was therefore in a vulnerable position. With his age the deceased cannot match the boys whose ages are within twenties and Mr. Moala who was the youngest of all at 18.
34. The offence did take place at night. It began when the 2 boys approaching the deceased whilst sitting in his car with his wife drinking. The 2 boys were also had been drinking.
35. The reason why the 2 boys approached the car and sought for a matches (lighter) which the deceased told there was none. Of course, there must have been something said by the two boys which induced the deceased to go out of his car. With three of them under influence of alcohol a fight broke out. And that attracted the accused Floyd who intervened in an attempt to quell the situation, instead he was punched by the accused.
36. It was the effect of alcohol which caused a lot of criminal activities in this nation. It is a serious matter to address now, since the nature of it seems to be in a chronic stage.
37. With those aggravating factors I therefore accelerate by uplifting the lead sentence by 4 years making the head sentence adds to 11 years.

Mitigating factors.

38. The mitigating factors which I consider on the charge of manslaughter against the accused Floyd Junior Haomaerihu are:
    • (a) He has entered an early plea of guilty at the earliest opportunity after the information was amended. It serves Court’s time and resources for both parties.
    • (b) The defendant was 24 at the time of offending. He is a married man with two young children 4 years old and 1 year old.
    • (c) This is the first criminal offence he committed. Before that he was in good behavior and has no criminal record.
    • (d) At the time of offending he was without a formal employment but still fulfilling his obligations by supporting his family.
    • (e) The defendant felt remorse for his actions. He expressed this through his Counsel’s submissions. He regrets his action resulted in the commission of the offence.
    • (f) I also consider that the accused and his friends had paid $78,000.00 and 32 red shell money. However, I have noted that payment of compensation should be in reasonable term and cannot be used to buy one out of criminal liability.
39. Upon considering those mitigating factors and how they affect the head sentence, I noted the Courts stance that at least 1/3 of the sentence be deducted.
40. I therefore, based on the mitigating factors I deduct 3 years from 11 years head sentence making it a total of 8 years imprisonment. 5 months and 2 weeks the accused remand in custody be deducted from 8 years imprisonment sentence.

Sentence on the charge of common assault.

41. All the co-defendants Mr. Nickson Gwalu, Mr. Harrison Gilo Hakelea and Mr. Mathew Rocky Moala were all charged for common assault contrary to section 244 of the Penal Code.
42. The charges were filed after the incident that occurred on 5^th August 2022, at Vara Creek near O2 bus stop. All the accused did not dispute that they all involved in that incident and had participated in assaulting the deceased concertedly.
43. This case is an offence occasioned by the effect of alcohol. The deceased was drunk same as the three accused who had been drinking that night.
44. What have been the cause cannot be blamed on the deceased as an aggressor. The two of the accused who approached his car earlier before he got out must have said something which caused him to get out of his car and that was when things got out of hand.
45. The major aggravating factor here is that 3 young men in the early twenties with one teen ager, attacked an old man of 63 years of age concertedly, at night on a main public road. The wife cannot assist much because of her status as a woman with no match. She may had attempted to stop or cool the situation but impossible to turn against 4 young and strong men.

Mitigation.

46. The mitigating factors that are common to all the three defendants are, they all entered a plea of guilty to the charge of common assault at first instance on 29^th September 2024, when the information was amended after the charge of murder was nollied.
47. Pleaing guilty to a charge is demonstrative of remorse and accepting whatever sentence the Court may impose. By a plea of guilty it saves a long and tedious trial and serves time and resources to bring witnesses to Court, see the case of Kingi Pepe V DPP^[7].

First time Offenders.

48. Submissions attested that all the three defendants are first time offenders. They have no previous criminal records until this case. It shows they have been good citizens until they committed this offence on 5^th August 2022.
49. All of the three defendants including Mr. Floyd Junior who was charged for manslaughter had paid compensation of $78,000.00 and 32 traditional shell money to the families of the decease who accepted. It ought to be noted that the value of compensation should not appear as unreasonable or would be seen as buying out one’s criminal culpability.
50. I noted the amount given as compensation is quite substantial, perhaps due to the number of accused persons involved in this case. In Solomon Islands custom compensation symbolizes restoration of peace between the parties and this has long been recognized by the Courts as mitigating factor.

Personal circumstances.

51. I also consider personal circumstances of each accused. All of them are in the twenty years of ages now. Accused Gwalu was a married man with one child. The rest are young boys.
52. Accused Moala was 17 at the time of offending. He was a student at Tuvaruhu at that time. However, his involvement with adults in drinking alcohol, smoking and spending nights at the road stall does not speak well of him. He must be careful. He is facing a long road ahead and it may start to get tough on him now.

Delay.

53. There is 2 years and 3 months delay, calculating from August 2022 to November 2024. I noted it is not the Courts delay but administrative delay caused by investigations and finalizing of the criminal case in Court.
54. In respect to sentencing tariff I have noted precedents from the case authorities alluded to in the submissions which range from 3 – 6 months. Because this is a misdemeanor crime with small maximum penalty, I consider immaterial to identify a starting point. But as a judge of fact and law I am tasked to weigh and balance out the aggravating and mitigating facts. Having done so I have concluded that the appropriate sentence is one year imprisonment for all the three accused.
55. The striking factor here is that all the accused had pack assaulted upon the decease and one of them had admittedly caused the death of the deceased by his single punch. And secondly alcohol is the major cause of the brawl.

Final Orders:

1. The first defendant Floyd Junior Haomaerihu is guilty on his own admission of the charge of manslaughter contrary to section 199 of the Penal Code.
2. That Floyd Junior Haomaerihu to serve 8 years imprisonment.
3. Any pre-trial custody period be deducted from 8 years.
4. The defendants Nickson Gwalu, Harrison Gilo and Mathew Rocky Moala are guilty on their own admission of the charge of common assault contrary to section 244 of the Penal code.
5. That all the defendants to serve one-year imprisonment each.
6. Any pre-trail custody period be deducted from one-year imprisonment.

The Court.
Hon. Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] R v Timothy Sulega (Unrep. Criminal Review Case No. 113 of 1999).
^[2] Johnson Tariani v R [1988 – 89] SILR 7.
^[3] [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2018).
^[4] [2015] SBCA 20; SICOA-CRAC 42 of 2014 (9October 2015).
^[5] [2022] SBCA 1; SICOA-CRAC 16 of 2021 (8 July 2022)
^[6] [2021] SBCA 12; SICOA-CRAC 3 of 2020 (1 February 2021)
^[7] Criminal Appeal NO.4 of 1987 (Unreported Criminal Appeal).