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R v Niaka [2020] SBHC 100; HCSI-CRC 29 of 2020 (7 November 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 29 of 2020

REGINA

V

SILVESTER NIAKA

Date of Hearing: 6 November 2020
Date of Sentence: 7 November 2020

Sitting in Gizo: High Court Circuit

Rachel S Olutimayin for the Prosecution
Frank Kama & Paul None for the Defendant

SENTENCE

Bird PJ:

1. The defendant, Mr Silvester Niaka was originally charged with one count of murder contrary to section 200 of the Penal Code (cap 26). On the 3^rd November 2020, a nolle prosequi was filed on the murder charge and an amended information was filed in which the defendant was charged with one count of manslaughter contrary to section 199 of the Penal Code (cap 26).
2. Upon being arraigned on the amended information the defendant had entered a guilty plea. Agreed facts were filed on the 6^th November 2020 and sentencing submissions were also made on the same day.
3. The offence of manslaughter is a very serious offence and carries a maximum term of life imprisonment. The courts view such offending as very serious because you have taken away the life of another person.
4. The facts of your case are that on the morning of the 9^th September 2019, the deceased, his wife and you had travelled to Gizo by boat. After you and the deceased had dropped off his wife at KHY area, you and the deceased went to Chan Corporation bottle shop and purchased alcohol. You then travelled to Loga Island, just outside Gizo and consumed the alcohol on the island before returning to Gizo.
5. On your return to Gizo, you went to KHY area and continued drinking with other people. At about 8:00pm the deceased, Alex Kopana you decided to travel back to Nusabaruku in the deceased boat. It was raining and windy when you left Gizo.
6. Whilst in the boat, you told the deceased to speed up because you did not want your boom-box speaker to get wet in the rain. The deceased told you, why you brought your speaker and also said “olsem small koko”.
7. You got angry and got hold of a mangrove stick from inside the boat and struck the deceased’s head with it. The deceased then fell into the sea. Alex Kopana jumped into the sea to look for the deceased but could not find him. Alex Kopana found the deceased on the side of a stone wall about an hour after he fell into the sea. The deceased was taken to Gizo Hospital but was pronounced dead upon arrival.
8. A post morten was carried out by Dr Roy Maraka. According to the post morten report, the cause of the deceased death was asphyxia due to drowning.
9. The matter was reported to the police and you were arrested and placed in the cell. On the 11^th September 2019, you participated in a record of interview. You have been remanded in custody since then.
10. I have heard submissions from Mr Andrew Meioko for the crown and your lawyer and there are aggravating as well as mitigating features in your offending.
11. I must remind you that the offence for which you are charged is very serious. This unfortunate incident had cost the life of another person. I have noted that you and the deceased were both intoxicated on that occasion. The words spoken to you by the deceased might not have been provocative if you were in a sober state of mind. The court had noted that very serious offences are usually committed by person whilst they are intoxicated with alcohol.
12. I must remind you that being drunk on that occasion is not an excuse for you. The fact that you were drunk on that occasion is a serious factor against you. The court have reminded offenders’ time and time against to refrain from taking excessive alcohol because it can directly affect your behaviour. From the facts of your case, you have been drinking from the morning to about 8.00pm. By the time of the offending, you could have been very drunk. I remind you to learn from that mistake and to live a life that is more controlled and respectable in your community.
13. Another aggravating feature in your offending is the use of a weapon on the deceased. You have used a mangrove stick to strike the deceased on the head. The hit on the deceased’s head had caused him to fall into the sea which then led to his drowning.
14. I have also noted that the offending was carried out at night time. As it was dark, it was difficult to find the deceased as he fell overboard. If the offending had occurred during the day time, it would have been easier to retrieve him and he might not have lost his life.
15. On your behalf, your lawyer have submitted that you are related to the deceased. You are 27 years old. You are married with three children. Your wife and children are in Bougainville.
16. You have no formal education as you were born during the height of the Bougainville crisis. You came to Solomon Islands and lived with the deceased to try and find some form of employment.
17. You have pleaded guilty to the offending at first opportunity. I give you credit for your early guilty plea. The guilty plea saves the court’s time and resources in conducting a trial into the matter. The guilty plea also shows you are remorseful and have come to terms with your offending.
18. You have no previous conviction which makes you a first offender.
19. I have also heard that your family have paid compensation of K5000.00 to the deceased’s family. These had been a reconciliation held between the two families.
20. I am grateful for the various case authorities cited by both the prosecution and the defence. The comparative sentences in the cases cited is between 2 ½ years to 8 years imprisonment for manslaughter depending on the circumstances of each offending.
21. In this case, I have taken note of the case of R v Popoe [2015] SBCA 20, SI COA- CRAC 42 of 2014. The injuries sustained by the deceased were serious and the defendant on appeal to the Court of Appeal was sentenced to 6 years imprisonment.
22. In the case of R v Baomate [2012] SBHC 112, HCSI- CRC 227 of 2010, the deceased and the defendant were drinking and had an argument. The defendant assaulted the deceased and he died as a result. The defendant was sentenced to 4 years imprisonment for manslaughter.
23. In your case, I have noted that the cause of death is drowning. Your unlawful act of striking the deceased in his head with a mangrove stick had caused him to fall overboard and drowned as a result.
24. Taking into account all of the aggravating and mitigating features in your case together with the case authorities cited by both counsel, the sentence that I will impose upon you would bring home to offenders and would-be offenders that this type of offending is not condoned or tolerated by the courts.
25. For the offence of manslaughter contrary to section 199 of the Penal Code (cap 26). I hereby sentence you to 4 years imprisonment.

Orders of the Court

1. Defendant is convicted on one count of manslaughter contrary to section 199 of the Penal Code (cap 26).
2. The defendant is sentence to 4 years imprisonment.
3. I direct that the time spent in pre-trail custody is deducted from total sentence.

THE COURT
Hon. Justice Maelyn Bird
Puisne Judge