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Anderson v Regina [2022] TVHC 3; Criminal Case 2 of 2020 (6 April 2022)

IN THE HIGH COURT OF TUVALU 2022

CRIMINAL CASE NO.2/20

BETWEEN

MARK ANDERSON APPLICANT

AND

REGINA RESPONDENT

Before Hon Judge Sir John Muria

Hearing 22^nd March 2022

Ms N. S. Tusipese for Applicant
Ms M. Ako for Respondent

J U D G E M E N T

Muria J: This application by the Applicant is now made possible following the passage of the Penal Code (Amendment) Act 2019 to section 193 of the Penal Code. The new section 193 A of the Penal Code gives power to the High Court to re-sentence a prisoner who is serving a life imprisonment sentence for murder. It is under this amendment that the applicant now comes to this Court.

Brief background

2. I set out briefly the background to the applicant’s case. The applicant, who was then 16 years of age, was charged with the murder of the deceased, Seloto, on 27^th November 1998. At his trial in July 1999, the facts before the Court showed that sometime between 8.00 pm and 8.30 pm on 27^th November 1998, the applicant went to the Matagigali Bar. Prior to that, he and his brothers had been drinking at various other places. He was already under the influence of alcohol when he entered the Matagigali Bar. His brothers Simon and Steward were with him at the Bar.
   
3. There was some argument at the Bar and the Bouncer at the Bar restrained the applicant’s brother. The applicant intervened but the deceased pushed him away and told him to go home. The applicant’s other brother, Steward, came over and a scuffle ensued between Steward and Seloto (deceased) during which Seloto punched Steward on the nose, eye and mouth. Seeing his brother was injured, the applicant became very angry. He left the Bar and went back home which was about 5 minutes walk away. His brother Simon accompanied him home.
   
4. While at their house, the applicant and his brother were agitated and vigorously discussing what had happened at the Bar. The applicant then said that he was going to hit someone for what was done to his brother. His mother tried to talk him out of his idea of hurting someone and to “forgive him.” The applicant replied to his mother and said that Seloto hit and injured his brother and that he was going to hurt him. He took a kitchen knife and went out of the house. His mother called him to come back to the house but the applicant refused to listen to his mother.
   
5. The applicant returned to the Bar and stabbed Seloto who died as a result of the stabbing. The applicant did not deny stabbing the deceased.
   
6. The applicant was charged with murder. He was tried, convicted sentenced to the mandatory life imprisonment on 31^st July 1999. His defence of provocation under section 198 failed.
   
7. The applicant committed the offence in November 1998 when he was 16 years old. He was 17 years of age at the time of his trial, conviction and sentence in July 1999.
   
8. In September 2003, the applicant made an application to this Court to review his sentence. His application failed as being misconceived as the Court had no power to review the mandatory sentence of life imprisonment imposed on him by the same Court.
   

New Power of Re-sentencing of the High Court

9. Now armed with the new amendment to the Penal Code, he now asks this Court to exercise its power under section 193A of the Penal Code and re-sentence him. I set out the two recent amendments to the Penal Code.
   
10. In 2014, Parliament amended the Penal Code (Penal Code (Amendment) Act 2014) in which section 193 was repealed and replaced it with the new section 193 which is as follows:
    

“193. Murder

Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be liable to a sentence of imprisonment for not less than 15 years and not more than imprisonment for life.”

11. Under the 2014 amendment, the sentence for murder is no longer a mandatory life imprisonment. The sentence for murder is now within a discretionary range from 15 years to life imprisonment. Then in 2019, Parliament passed a further amendment to the Penal Code by adding a new section 193A which came into effect on 22^nd July 2020 and which provides as follows:
    

“193A Power of the High Court to re sentence prisoner of murder offence.

(1) A prisoner serving a mandatory life sentence may apply to the High Court to recall the sentence previously ordered and resentence the prisoner in the same manner as if he had not previously been sentenced, provided the new sentence is within the sentencing range imposed under section 193.

(2) Any time served under the previous sentence shall be deducted from the new sentence imposed.”

12. There is clearly now a power conferred in the High Court to revisit the applicant’s life sentence for the purpose of re sentencing him. It is not within the remit of section 193A, in the resentencing process, to ascertain if there was any error in the original sentencing process nor is it permitted to add factors that were not before the original sentencing judge who had only one mandatory sentence to impose on the applicant. Section 193A simply empowers the Court, based on the same factors that were present at the time the applicant was originally sentenced, to resentence the applicant “in the same manner as if he had not previously been sentenced” provided the new sentence is not less than 15 years nor more than imprisonment for life.
    

Approach to resentencing

13. In considering what the appropriate sentence should be imposed on the applicant, I will approach it “as if he had not previously been sentenced” based on the same factors that were present at the time of his original sentencing. After determining that appropriate sentence, I will then take into consideration the circumstances of the applicant since his original sentence in order to determine the appropriate sentence to be imposed on the applicant.
    
14. At the commencement of the hearing of this application, Ms Ako of Counsel for the respondent stated the respondent’s position, namely that the respondent supports the resentencing to a term less than imprisonment for life. As to the length of sentence, Counsel submitted that the appropriate sentence should be 23 years.
    
15. As the applicant has also sought bail pending the outcome of this resentencing the respondent also supported the grant of bail. However at the hearing I refused bail, despite the respondent’s support for the applicant’s request for bail. The Court felt that this is not an appropriate case for bail pending resentencing.
    
16. 16. Ms Tusipese of Counsel for the applicant gave a brief narration of the applicant’s circumstances. He was born on 29^th January 1982 making his 40 years old as at 29^th January this year (2022). He was sentenced to life imprisonment at the age of 17 years old. Attempts to have the Court reviewed his sentence failed in 2003. There were attempts made to have the Head of State exercised his power of mercy under the Constitution on the applicants. All his attempts failed. The passage of section 193A of the Penal Code gives him a glimmer of hope, which he now pursues.
    
17. Ms Tusipese earnestly and firmly puts the applicant’s case to the Court. Counsel relied on a number of cases from New Zealand, Fiji and Papua New Guinea to support the applicant’s case. Counsel very helpfully, provided the Court with the extracts of the cases relied on. Counsel, however, acknowledges that each case is dealt with on its own circimstances.
    
18. The thrust of the applicant’s case for resentencing is two-fold. The first is that the applicant was only a young man of 17 years of age, still in his youth, when he was sentenced to imprisonment for life. However, Ms Tusipese accepted that the youth of the offender cannot be the dominant factor in the sentencing for a serious crime such as murder as pointed out in The Queen –v- Rapira and Others (5/9/2003) NZCA, CA 318/02[2003] NZCA 217; , [2003] 3 NZLR 794 (CA) which was also cited with approval in Churchward -v- The Queen [2011] NZCA 531. The Court stated in R –v- Rapira:
    

“ .... Although the youth of the offenders was important it was outweighed by the need for denunciation and deterrence in the case of such serious crimes. The youth of the offenders was still relevant, but it was not the dominant factor in the sentencing.”

19. Nevertheless, Counsel urged the Court, since it is still relevant, to consider the youth of the applicant as a mitigating factor in resentencing him. Counsel referred the Court to the case of the State –v- NT [2003] FJHC 339 where a 15 year old young accused was convicted of murder. The murder was committed in the course of housebreaking during which the accused struck the deceased 3 times with a knife. He was sentenced to 12 years imprisonment.
    
20. Counsel also cited the case of the State –v- CJ (A Juvenile) [2018] PGNC 491. The accused was 17 years old at the time of the commission of the offence. He and his friends confronted the deceased and accused stabbed the deceased on the back with a knife resulting in the death of the deceased. The punishment for murder in PNG is discretionary life imprisonment. The Juvenile Justice Act prohibits sentencing a Juvenile to life imprisonment. Taking into account other factors including the age of the accused, the Court sentenced him to 10 years imprisonment.
    
21. The NZ case of Churchward –v- The Queen (above) was also relied upon by Counsel for the applicant. The accused was 17 years of age when she committed the offence. She was convicted of murder and sentenced to life imprisonment with a minimum period of 17 years to be served. On appeal the minimum period was reduce to 13 years taking into account her age and the new evidence available to the Court of Appeal.
    
22. The case of Pouwhare –v- The Queen [2010] NZCA was also cited by Counsel. That case was not a murder case but Counsel cited it to show that the young age of the accused is a relevant factor in sentencing. The case of R –v- Slade [2005] Z NZLR 526 was also cited by Counsel to show that young offenders are more vulnerable than adults which accounts for some of their behaviours moods and impulses.
    
23. Again on mitigation of sentence, Counsel also submitted that the applicant was intoxicated at the time he committed the crime and as such, as a person of young age, he lacked cognitive maturity to control his impulse and behaviour at the time due to his intoxication. I have to say that generally, the weight of the authorities is against the use of voluntary intoxication as a mitigating factor in sentencing. If anything, it is an aggravating factor. In Singapore, the Court in Wong Hoi Len –v- PP [2009] 1 SLR (R) 115 rejected the use of voluntary intoxication as a mitigating factor in sentencing. In Australia, in Hasan –v- The Queen [2010] VSCA 352, it was firmly stated that the Courts in Australia consistently reject the proposition that intoxication can be a mitigating factor in sentencing. The proposition that voluntary intoxication is not a mitigating factor, rather it is an aggravating factor applies in Tuvalu.
    

Appropriate Sentence

24. In the light of the cases referred to Counsel submitted that the appropriate sentence to be imposed on the accused is one of 15 years.
    
25. Ms Ako of Counsel for the respondent suggested that the appropriate sentence should be the time the applicant has served in prison, which is now 23 years. Referring to the PNG case of the State –v- Wakupa [2012] PGNC 229; N4783 (6/9/2012), Counsel sought to support the suggestion that 23 years imprisonment sentence is appropriate in the applicant’s case. In the case of the State –v- Wakupa, the accused was 17 years old when he committed the crime of murder. He axed the deceased to death after raping her. He was sentenced to 25 years imprisonment. Counsel submitted that since the circumstances in the applicant’s case is slightly less serious than that in State –v- Wakupa, the appropriate sentence should be 23 years imprisonment.
    
26. Very little has been said by Counsel on the issues of violence, the seriousness of the crime, the premeditation and preparedness by the applicant to carry out his plan to attack the deceased and the power of the Court to resentence the applicant even to the same sentence of life imprisonment. These issues are very relevant since this is a resentencing as if the applicant had not previously been sentenced. Simply taking a narrow approach by focussing only on the age of the applicant in the hope that the Court will wave its magic wand and resentence the applicant to the lowest minimum number of years, is not very helpful to the Court which has to do a balancing exercise in order to arrive at an appropriate and just sentence to be imposed on the applicant.
    
27. Be that as it may, the Court cannot ignore the factors that I have just mentioned. Murder is a very serious crime, still punishable by life imprisonment. When it is committed with aggravating features it adds weight to the seriousness of the crime. In this case, the aggravating features are the violence used, the weapon used, there was premeditation, the applicant’s determination to carry out and did carry out his plan to attack the deceased despite efforts by his mother to stop him, fuelled with anger to avenge his brother who was hit by the deceased earlier, and under the influence of alcohol. When all these aggravating features are put together, they clearly outweigh the young age factor in this case, although the age factor is still relevant. That is clearly demonstrated in the case of The Queen –v- Rapira.
    
28. I have considered the case law authorities cited by Ms Tusipese on behalf of the applicant together with the case cited by Ms Ako on behalf of the respondent. I accept the positions taken by the Courts in the various cases referred to that the youth of the offender, although not the dominant factor, is relevant in sentencing, as a mitigating factor. Taken together with other relevant mitigating factors the youthful age of an accused person can assist the Court in arriving at an appropriate sentence to be imposed on the accused person. I accept the young age of the applicant when he committed the offence can be taken into account as a mitigating factor in his resentencing.
    
29. A research study by the Child Rights International Network (CRIN) on Life Imprisonment of Children in Oceania shows that in almost all the jurisdictions in the Oceania Region including Australia and New Zealand imprisonment for life sentence is still lawful to young persons below 18 years of age. But they have parole legislation that enables the Court to fix a minimum sentence to be served before a prisoner is eligible for release on parole. Neither Counsel alerted the Court if Tuvalu has parole legislation in their submissions.
    
30. The discretion which this court now has, (but did not have in 1999), in determining the appropriate length of the imprisonment sentence to be imposed on the applicant ranges from 15 years to life. But the yardstick must be set so that would be offenders, (the young or adult), know that it does not pay to commit crime, particularly the taking away of lives. The court will exercise the discretion, which the law now conferred on it to reflect society’s distastes for criminal conduct in the community and among its peace loving citizens. In this regard, too, the society’s distaste is not only a universal distaste generally, but one that is reflective also of the community where the criminal conduct is perpetuated. In this case, that community is Tuvalu.
    
31. Before determining the appropriate sentence, I will briefly turn to the situation of the applicant since he was sentenced 23 years ago. He went into prison at the age of 17 years. He is now 40 years old. He spent his whole youth and a good part of his adulthood in prison. Despite his unsuccessful attempts to have the authorities reconsider his sentence, the applicant became a changed person while in prison and very much become a model prisoner. Affidavit evidence from the Prison Warden Niutea Siona and Superintended Piliota Viliamu are very supportive of the applicant’s positive conduct and good behaviour in Prison.
    
32. Anxiously as I do in determining what is the appropriate sentence to impose on the applicant, I am satisfied that in the circumstances of this case and in the light of what I have said in this Judgment, the appropriate sentence is one of 23 years, effective as from the date he was taken into custody. Counsel suggested that whatever sentence is imposed on the applicant should account for his one-third remission. I have no evidence of that before me. In any case, that is an administrative matter for the Prison Authority. It is not part of this Court’s function to take over the administrative tasks of the Prison Authority. If the one-third remission rule is applicable, I have no doubt the Prison Authority knows what to do in such matter.
    

Compensation

33. The case for the applicant also includes a claim that the State should compensate him for having served more of his time in prison. However, apart from the bare claim, no authority has been cited to support the claim for compensation in the circumstances of this case. The respondent, as expected, strongly objects to any order for compensation against the State in this case.
    
34. Ms Ako submitted first, that the sentence of imprisonment for life imposed on the applicant in 1999 was lawful, being imposed in accordance with the law as it then stood. Secondly the new section 193A does not provide for compensation on resentencing. Until this Court resentences the applicant, he is still lawfully sentenced to life imprisonment.
    
35. With respect, Ms Ako is right in her submission. A claim for compensation in sentencing would only arise in a case of unlawful or wrongful imprisonment. See Malaumou –v- Attorney General [1991] SBHC 32; HC – CC055 of 1991 (29 April 1991); See also Edward –v- Pohura [2003] TO Law Rp.36; [2003] Tonga LR 231 (25^th July 2003) which states that the two ingredients of false imprisonment are: “the fact of imprisonment and the absence of lawful authority to justify it.”
    
36. In the present case, the sentence of life imprisonment imposed on the applicant was a lawful sentence made pursuant to section 193 (which is now repealed) of the Penal Code.
    
37. I therefore find and hold that the claim for compensation made by the applicant against the State is without merit and must fail.
    

Order on resentencing

38. Having considered the circumstances, the facts, the law and submissions of Counsel, I make the following Orders:
    
    1. The applicant’s application for resentencing is granted.
       
    2. The applicant is resentenced to 23 years imprisonment with effect from the date he was taken into custody.
       
    3. Any entitlement to one-third remission of sentence earned by the applicant shall be accorded to him.
       
    4. The applicant’s claim for compensation from the State is without merit and it is refused.
       

Dated on the 6^th day of April 2022.

Sir John Muria
Judge

[After judgment was delivered, Counsel informed the Court that Tuvalu now has a Parole Act 2021]