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Regina v Ludawane [2010] SBHC 128; HCSI-CRC 233 of 2008 (5 October 2010)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

SITTING AT AUKI, MALAITA PROVINCE

REGINA

-V-

MOSTYN LUDAWANE

HEARING: 14TH – 15th July 2010
SENTENCE: 5th October 2010

R. Barry and A. Aulanga for the Crown
D. Hou for the Defendant

Palmer CJ.

The sentence being imposed in this murder case is quite unusual in that this is more or less the first time that this court will give a sentence in a murder case which will take more than a minute. Up until now, most sentences imposed for murder are one-liners, a mandatory life imprisonment without more for that is what the law is.

A change and perhaps more changes in the future however has been brought about as a result of new law introduced under the Correctional Services Act 2007, which established a Parole Board with powers to make recommendations to the Minister responsible for release on licence of any person serving a sentence including those with sentences of life imprisonment. This new legislation has opened up a doorway of discretion for a court to consider whether to specify a minimum period to be served in a sentence of life or not.

The argument now is that when imposing a mandatory sentence of life imprisonment on a conviction for murder, the court should where appropriate consider stating what in its view should be the minimum period to be served in custody to meet the requirements of retribution and general deterrence before an offender is eligible for consideration for release on licence. In my ruling[1] on this legal argument, I pointed out that in the embryonic stage of the law at this time, this remains discretionary and a court is not obliged to do so if it is of the view that it is not appropriate in the circumstances.

You were charged with the murder of James Ludawane on 21st November 2007. When you were arraigned on Wednesday morning, 14th July 2010, you entered a not guilty plea; the trial was commenced immediately after with witnesses called to prove the case against you.

When court adjourned for the lunch break, after two witnesses had been called, the nurse that attended the deceased at your home and one of your sons, you had a change of mind and gave fresh instructions to your lawyer to change your plea. This was conveyed to the court when it reconvened at 1.30 pm in the afternoon. Your lawyer needed time to discuss this change of mind properly with you and so I further adjourned court to 4.00 pm. When we reconvened, you were re-arraigned and you entered a guilty plea.

I note you had spoken with your lawyer about your case; that he had given you advice about a change of plea and its implications, and after careful thought, you have freely and voluntarily decided to enter a guilty plea to the charge of murder, knowing full well this carried a mandatory sentence of life imprisonment.

This court then adjourned to give time to your lawyer to make further submissions about the powers of this court to make recommendations regarding a possible minimum term to be served in your case in the light of recent amendments in the law regarding parole. I adjourned to Honiara and after hearing submissions I ruled that this must remain a matter within the discretion of the court where it considers appropriate in the circumstances of each case. At the moment there is no legal requirement for the court to set a minimum period.

After careful thought I have decided in this case to make some observations, which may or may not be relied on by the Parole Board set up under the Correctional Services Act 2007.

Section 73 (5) of the Correctional Services Act 2007, provides inter alia, that the Parole Board may make recommendations to the Minister relating to the release on licence of any person serving a sentence, including a sentence for life. Note, as at this point of time, no Parole Board has been set up as yet under the Act and no guidelines provided.

I must from the outset commend you for taking this course of action, in entering a guilty plea early. This is a wise and responsible action on your part. You have obviously weighed the odds and realise they are stacked against you. By taking this course of action you have saved other witnesses the trauma of having to come and give evidence against you and re-live what would have been for some of them a terrible experience. That would not have been easy.

I note in particular what your lawyer has said in your mitigation that you acknowledged that although you had intended to chastise or correct your son, your actions went beyond what the law allowed in relation to the degree of force, or the nature of the blow or the blows, or the nature of the instrument used[2]. Whether you were trying to teach your son because he was naughty, or had stolen someone's watermelon, your actions in punching him on the face with a closed fist, hitting him on his back with a sago palm branch, holding him upside down by his ankles and hitting his head against a stone were excessive and went beyond parental control and discipline. You did not stop there but after dragging him by the collar of his shirt to your house, you pushed him down the ladder of your house causing him to fall heavily and hit his head on the cement floor at the bottom. You then tied his hands together across a beam support, had him suspended from the ground and beat him again on the backside and below his neck with a solid mangrove stick. It is common knowledge that a mangrove stick is a very strong stick. The level of violence exerted is disproportionate to anything reasonable and acceptable whether in custom, according to Christian principles, or law. Your son tragically died from a combination of those severe injuries, at your hands.

While you may have thought you had a right to teach, correct and discipline your son, what you did went way beyond what any sane, normal and responsible father would have done. You clearly overreacted and went overboard in your actions. Perhaps you thought because he was your son, that gave you right to beat him; you were clearly wrong on that. Every parent has a right to discipline their children, but not in hatred or anger; it is to be done in love. The most important gift any parent can be given is a son or a daughter. "Children are an heritage from the Lord, and the fruit of the womb is his reward" (Psalm 127:3). The word "heritage" means a blessing and a gift. Children are not property to do as one pleases, rather you are required to bring them up in the "nurture and admonition of the Lord[3]". There are many parents who spend more time taking care of their flowers and gardens, but spend little time on the most valuable gift in their hands, their children. A master carver or painter will spend hours to perfect the image of his carving or painting, how much more should parents on building, mentoring and training their children, so that the right image is produced in their children, based on Christian values and principles, of godliness, righteousness, honesty, love, hard work and truth. There is no perfect parent in this world but God gives his Grace to parents to enable them discharge their parental duties.

The law recognises the right of parents to inflict reasonable and moderate corporal punishment for the purpose of correcting wrong behaviour. That punishment however must be moderate and reasonable, commensurate to the age, physique and mentality of the child and carried out with a reasonable means or instrument[4]. It must be applied in a responsible manner; the yardstick is love.

The nurse and your son who gave evidence did a remarkable job in recalling events which occurred almost three years ago, in particular your son was a very brave boy indeed, coming to court to give frank, clear and objective evidence of what transpired that day against no one else other than his father. It would have been extremely hard on him but he maintained his composure, objectivity and sincerity throughout. I commend him for that.

By this change of plea you have saved us unnecessary court time for a trial which had been listed for five days. We have been able to use those times to attend to other important matters.

By this course of action you have positively demonstrated remorse; that you are sorry for your actions. This is indeed a tragic and sad case for it does not involve an enemy or an adult but a harmless, defenceless little boy. Your change of plea is consistent with someone who has realised he has made a terrible mistake. This is consistent with your actions afterwards observed by Harold Buga that your son was lying on your lap when he arrived at your house. You also voluntarily surrendered to Police the next day.

I note you have no previous convictions. That is a recognised mitigating factor. This has been a double loss to you and your family and no one has gained from this.

I note your family has been very supportive of you but they have also recognised that you should be punished for your actions and to give you opportunity for reform and change. They hope in due time you should be able to rejoin them, as a transformed person; I take that into account.

You have accepted the consequences of your action and have been very cooperative with all relevant authorities.

Your change of plea should work in your favour as at some appropriate stage you may be eligible to be considered for parole or a pardon provided you also behave yourself well in prison.

I note you were under the influence of liquor at the time of commission of offence. That is not a mitigating factor in your case. You had choice not to drink. You knew that alcohol is no good for you for it affects your capacity to think logically, clearly and responsibly. It dulls the senses and causes you to do things which you would not in your right mind normally do. I think you have learnt the hard way and hopefully will not touch alcohol again.

There are a number of factors that a court should take into account when making any recommendations regarding a minimum period to be served. Other jurisdictions have made these a legal requirement and so to our benefit, we do have useful material from those case authorities and comments of learned judges on the point.

One particular case referred to by Mr. Hou which provides direct assistance on how the discretion can be exercised is an English Court of Appeal case, the case of R. v. Sullivan (Melvin Terrence)[5]. The English Court of Appeal noted that in a mandatory sentence of life imprisonment, there are two periods. The first one is known as the minimum term, this is the period to be served by an offender as a punishment and a deterrent. The second is the period during which the offender could, but might not be released on licence by the Parole Board if it decided that the safety of the public did not require that the offender to remain in prison.

The Court noted three starting points for seriousness of the murder committed; if it was exceptionally high in seriousness, then the appropriate sentence would be one for life. If the level of seriousness is categorised as particularly high then the starting point would be 30 years. In the average, normal or unexceptional circumstances, it would be around 14-15 years. The Court also noted that the starting point can be as low as 12 years in situations where the killing arose from a quarrel or loss of temper, where the element of premeditation, planning etc. were absent and that it occurred on the spur of the moment. The period could increase or be reduced further depending on the aggravating or mitigating factors.

In his judgment the learned Chief Justice, Lord Justice Judge, noted that the offence of murder can be committed without the offender having an intention to kill, an intention to inflict grievous bodily harm being sufficient (this is the same position in Solomon Islands), and that it covers a particularly broad spectrum of gravity. His Lordship gave the example of a sadistic killer at one end to a mercy killing by a caring member of the deceased's family responding to a plea to bring terminal suffering to a more rapid conclusion. He noted that minimum terms can range from a whole life to even less than eight years.

His Lordship pointed out that on the question of fixing a minimum period, the primary focus of the court would be on the level of seriousness of the murder committed. This he pointed out will help determine where the starting point should be. He pointed out that the court must have regard to the culpability of the offender in committing the offence and any harm caused, intended to cause or might foreseeably have caused. He also pointed out that where there are previous convictions, this may, depending on what they are, be an aggravating factor.

He also pointed out that a court should look at whether a guilty plea had been given and give credit for it. This is done by deducting it from the period of the minimum term, which the judge would have determined if there had been no plea of guilty.

Once a starting point has been fixed, the court should take into account any aggravating or mitigating factors. He identified some aggravating factors to include the following:

(a) a significant degree of planning or premeditation;
(b) the fact that the victim was particularly vulnerable because of age or disability;
(c) mental or physical suffering inflicted on the victim before death;
(d) the abuse of a position of trust;
(e) the use of duress or threats against another person to facilitate the commission of the offence;
(f) the fact that the victim was providing a public service or performing a public duty; and
(g) concealment, destruction or dismemberment of the body.

Some mitigating factors he identified on the other hand could include the following:

(a) an intention to cause serious bodily harm rather than to kill;
(b) lack of premeditation;
(c) that the offender suffered from any mental disorder or mental disability which lowered his degree of culpability;
(d) provocation for example by prolonged stress but falling short of the defence of provocation;
(e) acting in self-defence;
(f) belief that the murder was an act of mercy; and
(g) the age of the offender.

Decision

On the question of level of seriousness, it is my view this case falls within the average, normal and unexceptional, which would bring it within the range of 14-15 years. I say this because this is a case where correction or discipline had gone overboard.

In terms of aggravating factors, from the list provided, I can identify about three, which apply. These relate to (i) the age of the victim, a child, (ii) the element of mental and physical suffering which the child would have endured before death, the anguish and confusion that would have gone through his mind, and (iii) the position of trust held by the offender, his father, over the victim.

There is material which showed that you were under some influence of alcohol; that would have been an aggravating factor. Drinking alcohol is not regarded or accepted as normal behaviour especially in the rural areas. Drink is shunned upon especially when it is generally linked to many causes and incidence of criminal behaviour, disorderly and rowdy conduct in public.

On the opposite end, I note there are also a number of mitigating factors in your favour. I note you did not have an intention to kill; it was more an intention to cause serious bodily harm.

There was a lack of premeditation or planning in the killing of the victim. There wasn't one clear act but more a series of acts which occurred over a period of time and it was the totality of those actions that resulted in the death of your child.

I note also there was some element of provocation where the victim had been involved earlier in stealing some watermelons and would seem to have been naughty and that you were upset and wanting to correct wrong behaviour. So while your intentions may have been "good", it was how you followed through and carried them out that was the problem. It would seem that you believed you were disciplining and teaching your child with the view to correct wrong behaviour and conduct.

I note also your age, about thirty years old, you are a young man and father as opposed to a mature adult. The roles and responsibilities of fatherhood are not easy and require a lot of patience, practice and understanding.

Your early plea at the beginning of the trial is an important mitigating factor. It is clear you regret your actions and are sorry for what you have done and that you have no previous convictions; these all add up as mitigating factors.

Giving due credit for the strong mitigating factors in your favour I would recommend that any minimum period be around the 8 year mark; it could be earlier or later. This means you could be released on licence as early as after serving 8 years or even earlier, if not, then you should be eligible for release anytime thereafter. I must point out that these are recommendations only for the assistance of the Parole Board and Minister when exercising their discretion.

You are convicted of the offence of murder and sentenced to life imprisonment. I note you have requested to serve your sentence in Auki; that is a matter for the Correctional Service authorities to consider but I can understand why you have made that specific request. I am sure your lawyer will convey that request to the Commissioner of Corrections for his consideration.

The Court.

^[1] R. v. Mostyn Ludawane CRC 233/08, 15 September 2010.
^[2] R. v. Terry [1954] VicLawRp 87; [1955] VLR 114 at 116.
^[3] Ephesians 6:4
^[4] Ibid 116.
^[5] [2005] 1 Cr. App. R. (S.) 67