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R v Idu [2022] SBCA 1; SICOA-CRAC 16 of 2021 (8 July 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. An appeal against sentence imposed by the High Court in the case of R v Alex Idu (the respondent) has been brought by the Crown. The sentence appealed was imposed in July 2021. The Director of Public Prosecutions (the Appellant) brought this appeal on the grounds that the sentence imposed is manifestly inadequate. Such an appeal falls within section 21 (1) (b) of the Court of Appeal Act [Cap 6].
2. The Respondent pleaded guilty to the offence of manslaughter. The circumstances of that offence are that between 9.30 and 10.30 pm on 17^th January 2021the deceased was walking along the road with at least one other after arguing with his wife. Reaching a house in Kibiri Village, the deceased used his bag to hit the wall of a market stall. The respondent, who had witnessed this act of violence, got up and approached the deceased with a request that he stop causing a disturbance. That request was met with violence from the deceased.
3. That violence was an attempted punch which the respondent avoided. The offence came about as the defendant returned the unconnected punch with a punch of his own, delivered with clenched right fist directly onto the left side cheek of the deceased face. That blow caused the deceased to fall, into a pool of water, on the side of the road. He was unable to get up after the fall and attempts to revive him by onlookers were unsuccessful.
4. After being carried to his house, the deceased was then taken to the local hospital where he was pronounced dead. A subsequent autopsy revealed extradural and subdural haemorrhages as the cause of death. The doctor explained that a sudden violent blow to the cheek caused the brain of the deceased to move and tear blood vessels causing bleeding.
5. The respondent pleaded guilty to the offence of manslaughter, having earlier been charged with the more serious offence of murder which was subsequently withdrawn. He appeared before the trial court with no previous convictions recorded against him. The appellant identified two matters which it asked the court to consider as matters going to aggravate the offence, the first being that a death had occurred and the second that the offence took place during the hours of the night
6. Quite correctly, in the view of this Court, the trial judge decline to regard either of those matters as going to aggravation. Manslaughter by definition involves a death and cannot be said to aggravate that offence. The timing of the offence was dictated by the deceased, not the respondent. As the trial judge said, the respondent did not go out seeking to cause trouble, let alone a death.
7. Considering a sentencing starting point, therefore, the sentencing judge found nothing which could be said to aggravate what was already a serious offence. He had his attention drawn to various authorities within which sentences had been imposed for the same offence albeit in different circumstances. Most authorities referred to were from the High Court. Two of the authorities were from this Court.
8. In Rongodala v R [2006] SBCA 2 this court found that a sentence of seven years imprisonment for the offence of manslaughter to be within the range of sentences available for that offence. In that case, a charge of murder was reduced to manslaughter when a man killed his wife with a single ae blow. This court explained:-
   • It can be said that there are many grades of seriousness when it comes to the offence of manslaughter. In determining the appropriate penalty many factors have to be taken into account. Without suggesting that these are the only considerations, ordinarily a Court would have regard to the age of the offender, previous criminal history of the offender particularly whether there are previous convictions involving violence, provocation, intoxication, type of weapon if any used, persistence of the attack, vulnerability of the victim, and the relationship between the parties.
9. In sentencing this respondent, the court below noted that no weapon was used, that the deceased had provoked a response from the offender, that he had no previous convictions, that the attack comprised a single blow towards an aggressive victim with whom the offender had no particular relationship. Applying the criteria as laid down in Rongodala, the offence could be said to reside in the lower category of this type of offence.
10. In Tapa’amae v R [2021] SBCA 12 this Court said:-
    • The sentencing judge set out the important, relevant parts of our judgment in Popoe where this Court set a starting point of seven years imprisonment for an offence of manslaughter where the appellant had sat on the shoulder of his victim causing death. Whilst the majority, if not all, of the authorities quoted from the High Court indicated a lesser starting point, it is understandable and, indeed, correct, to follow a precedent, when available, from a higher court, in this instance the Court of Appeal. It is for the Court of Appeal, the highest court within the structures of the Solomon Islands which is tasked with setting precedent and which the High Court is tasked with following.
11. The sentencing judge was referred to Popoe v R [2015] SBCA 20 in which the offender caused death by sitting on the deceased rupturing the spleen. There was no other weapon involved. The starting point adopted by the judge at first instance of ten years was reduced by this Court to a seven-year starting point. The end sentence was six years. We said:-
    • This type of offending is a serious offence and warrants custodial sentence. The question then is for how long? The Appellant’s Counsel submitted the 10 years sentence imposed is manifestly excessive comparing with the current trend of sentences imposed for like offences but with more serious aggravating circumstances. It is our respectful view that the sentence of 10 years imprisonment is excessive taking the circumstance of the present case.
12. Following these authorities from this Court it should be clear that a starting point of four years is at the lower end of the scale. Whilst it may have been adopted by the High Court in some sentencing cases, it has not been adopted by this Court. We do not see that it should be adopted in this case as a suitable starting point. We are conscious, however, that this is an appeal brought by the Crown and so we will deal with it accordingly.
13. After identifying a starting point and noting no circumstances of aggravation, the sentencing judge outlined where he applies credit for mitigating factors which he has identified including the guilty plea, previous good character, the deceased’s own conduct, and remorse. The four-year sentence is thus reduced from four years to two years and six months.
14. The sentencing judge then purports to give credit for pre-sentence custody by making a further reduction from the starting point by eight months reflecting an actual period of pre-sentence custody of five months allowing for the customary good behaviour discount. That, in our view, is where the sentencing judge fell into error.
15. Credit for pre-sentence custody should always be given unless there is good reason not to do so. If the court determines that for good reason, credit is not to be given reasons for that decision should be provided. This principle was set out in Tii v R [2017] SBCA 6 where this Court said:-
    • In a case like the present, where the offender was in pre-sentence custody solely on account of the offence for which he was being sentenced and where the period of pre-sentence custody was continuous (that is, unbroken by periods out of prison on bail), this should be done simply and effectively by ordering that the sentence be deemed to have commenced on the date he was taken into custody. See Penal Code s. 24(5). It would be necessary to make such an order as part of the sentence to ensure that the date he was first taken into custody was used as the starting point in calculating one-third of the sentence for remission purposes.
16. Credit for pre-sentence custody should not form part of the deductions from the sentence imposed. The sentence to be imposed for any offence(s) should reflect aggravation, mitigation and totality but is primarily based on the circumstances of the offence or offences for which the offender appears before the court. It is not part of the sentence for the offence but a matter which should be considered when calculating how long the offender needs to serve to complete the sentence and pre-sentence custody.
17. Our conclusion is that the deduction of eight months from the term of imprisonment for the offence of manslaughter in addition to the discount already applied is an error. Assuming that the correct starting point was four years, the sentence that should have been imposed is two- and one-half years. Such a sentence of imprisonment cannot be the subject of an order of suspension as it exceeds the prescribed maximum term which may be suspended. See s.44 (1) of the Penal Code [Cap 26].
18. The question of whether a sentence imposed for the offence of manslaughter might be suspended is not the subject of any earlier decisions that have been referred to on the hearing of this appeal. It is not a question likely to arise given that most sentence will exceed the maximum permissible terms of two years. It does not now arise in this case given our decision that the correct sentence following the starting point set by the sentencing judge is two- and one-half years. Suffice it to say that following a conviction for manslaughter it will only be in exceptional circumstances that an immediate custodial sentence is not appropriate.
19. We consider, referred to earlier, that a four-year starting point is too low. We can and should interfere with a sentence only when an error of principle is shown. Whilst we consider four years to be too low in the circumstances of this offending, it cannot be said to be outside the range of permissible sentences and for that reason, and that reason alone, we do not propose to interfere with it. We would not have imposed such a lenient sentence ourselves, but that is not the test which should be applied in an appeal such as this. Our expression of opinion serves only to inform future decisions.
20. This appeal is allowed. The sentence imposed on 1 July is quashed. In its place a sentence of 30 months immediate imprisonment is imposed. The offender has been at large since the imposition of the suspended sentence and so must be arrested and begin to serve his sentence on arrest. Credit, however, must be given for the period for which he spent in pre-sentence custody. Because of the break in between that period of custody and the future date when he will begin his sentence, we cannot order that the sentence be deemed to commence when the offender first went into custody for this offence. We can say that the sentence is deemed to commence considering the number of days that the offender spent in pre-sentence custody. We note that the trial judge referred to a period of five months, but we suggest that the actual number of days can be applied in reduction of the time the offender needs to remain in custody to complete his sentence.

Goldsbrough P
Palmer CJ
Hansen JA