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Regina v Pese [2009] SBHC 6; HCSI-CRC 594 of 2005 (6 February 2009)

HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 594 OF 2005

BETWEEN:

REGINA
Crown

AND:

MATHIAS PESE
Accused

(Mwanesalua, J.)

Date of Hearing: 6 February 2009
Date of Sentence: 6 February 2009

Ms Christiansen for the Crown
Mr Tovosia for the Accused

SENTENCE

Mwanesalua J:

1. The accused was convicted of one count of murder and one count of abduction on 2 July 2007. He appealed to the Court of Appeal against his conviction and sentence for murder, which carries a mandatory sentence of life imprisonment. The Court of Appeal dismissed his appeal against conviction but allowed his appeal against sentence. It thus remitted his case to this Court, as the trial court, to pass fresh sentences on him for both murder and abduction

2. The accused committed the offences on 28 April 2003 when he was 15 years 8 months and 10 days old and was convicted when he was 19 years 10 months and 17 days old. In other words, he was a minor when he committed murder and was an adult when he was convicted of the offence. The issue before the Court of Appeal in his case was whether the trial court was right in sentencing him to a mandatory sentence of life imprisonment as an adult; or whether he should still be sentenced as a juvenile even though he was already an adult when he was convicted.

3. The Court of Appeal considered Section 13 of the Juvenile Offenders Act to determine this issue. That Section provides:

"Notwithstanding anything in this Act to the contrary, when a child or young person is convicted of a grave crime, the court may sentence the offender to be detained for such period as may be specified in the sentence; and where such a sentence is passed the child or young person shall, during such period, notwithstanding anything in the provisions of this Act, be liable to be detained in such place and on such conditions as the Minister may in his discretion direct, and whilst so detained, shall be deemed to be in legal custody."

4. The Court of Appeal was of the view that this provision is capable of more than one meaning as opposed to the trial court’s view that it merely applied to persons who were below 18 years when they were convicted. The Court of Appeal held that the provision also applied to minors who committed murder but who were convicted after they reached adulthood because of the capricious effect of the section.

5. The accused was born at Issuna Village on 18 August 1987. He committed his offences on 18 August 1987. He is married with a child. He was arrested for his offences on 26 August 2005. He was in custody for nearly 3½ years. This period included pre-trial custody ad part of his sentence for murder. There was reconciliation ceremony at Kolina on the Weather Coast. The relatives of the victim and his relatives took part in that reconciliation. There is no longer any risk to his safety and well being in his community. His wife and child are ready to live with him again if he leaves prison.

6. His relative, John Suge Lepole, is willing and ready to accommodate him, his wife and child if he is released from prison, until be builds a new house for his own family. Lepole lives at Inaviti village close to Nduidui Village where the accused would live if he leaves prison. Lepole undertakes to supervise the accused’s behaviour and attitude when he leaves prison. The accused was involved in Sunday School programmes before his arrest. There is no reason to indicate that he would re-offend when he leaves prison.

7. The appropriate sentence in your offence of murder is 7 years and for abduction 4 years, to be served concurrently with the murder sentence. The sentence of 7 years is reduced by one year to reflect your time in prison after sentence from 7 February 2008 to 6 February 2009. You have been in custody since 26 August 2005. You should not spend any more time in prison. So for the balance of the sentence, I will commit you to the care of your relative, John Suge Lepole, in accordance with Section 16(d) of the Juvenile Offenders Act (Cap.14). That Order will expire on 25 August 2010. During that Order, every three months, a report will be prepared by the Social Welfare Officer with information from John Suge Lepole on your behaviour. You are therefore free to go.

F. Mwanesalua
PUISNE JUDGE