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R v Taiga [2022] SBHC 57; HCSI-CRC 437 of 2021 (14 September 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.437 of 2021

REX

V

MAX GOSIA TAIGA

Date of Hearing: 9 September 2022
Date of Decision: 14 September 2022

Mr A Kelesi for the Crown
Mr B Alasia for the Defendant

Lawry: PJ

SENTENCE

Introduction

1. Max Gosia Taiga you have pleaded guilty to one count of murder. You had initially pleaded not guilty. Your trial was to commence on 5 September 2022. On that day your counsel asked for the trial to be delayed until the following day after there was a view of the scene where you had beaten and stabbed your victim. On 6 September 2022 you were again arraigned and changed your plea to guilty. You now appear for sentence.

Facts

2. The deceased was the owner of the Wai Hai shop in Point Cruz. She was a 44 year old wife and mother to two 8 year old children. You were an employee of the deceased. At the end of the day before the killing you hid inside the shop. You waited through the night. You disguised yourself. The deceased unlocked and entered the premises at 8.07am on 13 April 2013. You knew she would be alone. A minute later you emerged from where there were stacked boxes and buckets. You lunged at her tackling her to the ground. While she was on the ground you repeatedly struck her head with an iron rod.
3. You then went and changed your clothes. At 8.12am the deceased stood up. She contacted her husband on her mobile phone. She sought help from him. You ran and attacked her again. You pinned her to the floor and you stabbed her on the left side of her neck. You then tied her legs together attaching the rope to a fixed object. You left her lying bleeding from the stab wound. You then left the building making sure it was locked preventing access to the shop. You then joined with others who were trying to gain entry. You later gave a witness statement to the police. The following day you went back to your village in Malaita. After negotiation between the police and your relatives, you eventually surrendered to the police and were transported to Honiara.
4. You had been employed by the deceased since January 2021. In the course of your employment the deceased had sworn at you and used words that were offensive to you.
5. As a result of your attack on the deceased she suffered the following injuries:
   1. An abrasion 15mm x 15 mm on the right side of her forehead.
   2. A 20mm x 10mm bruise on the right eyebrow.
   100. A 30mm x 10mm abrasion on the right side of the neck.
   4. A 40mm x 10mm abrasion to the front of the neck.
   5. A 9mm x 1mm abrasion on the left side of the neck towards the front.
   6. A laceration/ incision wound at the back of the head on the right side measuring 56mm x 2 mm and 12 mm deep.
   7. A laceration 30mm x 5 mm and 14 mm deep on the left side of her head.
   8. A stab wound 37mm x 12mm and 100mm deep on the left side of the neck below and behind the ear. The stab wound was downwards but diagonally to the front.
6. The pathologist reported that there was bruising associated with the injuries to the head. The deceased died from the loss of blood as a result of the stab wound severing the left internal jugular vein. The abrasions on the neck were consistent with manual strangulation. The laceration on the left side of her head was likely to have been caused when you struck her with the iron rod. The laceration to the back of the head could have been caused by either the iron rod or the knife. The abrasions on the forehead and other bruising to the right eyebrow were likely to be caused by the iron rod.

Personal Circumstances

7. I am told that you are married and have two children. You are from West Kwaio in Malaita. You have no previous convictions.
8. I am told by your counsel that you co-operated with the police. By that I understand your counsel to mean that you eventually surrendered to the police after the police had been negotiating with your relatives.

Sentencing Principles

9. Mr Taiga, in sentencing you I find there are three main objectives. First and foremost, to condemn your crime and to denounce your actions. Second, to hold you accountable for the terrible harm you have caused and to attempt to impose some commensurate punishment. I do that on behalf of the whole community, which in particular includes the victim of your crime and her family, all of whom are a part of the community in Solomon Islands. Third, there is the need to protect the community from a person capable of committing such a calculated murder and who presents such a grave risk to public safety.

Aggravating factors

10. There are a number of aggravating features that the Court must take into account. The most significant is that this was clearly a pre-planned, cold, deliberate killing. You had disguised yourself. You waited at the shop until your employer arrived. She was unarmed and you attacked her with an iron rod then with a knife.
11. I find there was a gross breach of trust of the employer/employee relationship.
12. The deceased was vulnerable in the sense that she was alone opening her business at the start of the day and you knew she would be vulnerable to your attack.
13. You attacked her twice with weapons. The first time with an iron rod and the second with a knife. You tied her legs together and secured them to another object while she lay bleeding.
14. Your counsel explained that the reason you killed her was because she had caused offence by words she had previously used. What you did then was in revenge or retaliation for that perceived slight.
15. After killing the deceased, you took steps to prevent others from going to her rescue. The shop was locked and you waited and watched while entry was made from the neighbouring shop.

Mitigating factors

16. The only mitigating factor is the fact that you eventually pleaded guilty. However, you had previously pleaded not guilty and only changed your plea on the scheduled second day of trial.
17. I have previously recorded that you have no previous convictions.

Starting point

18. For the crime of murder there is a mandatory sentence of life imprisonment. The Court of Appeal decision of Ludawane v Regina [2017] SBCA 23 held that with the legislative changes to the Corrections Services Act and Regulations, it is now necessary to set a minimum term in sentences of life imprisonment for murder.
19. At paragraph [15] of that judgement in Ludawane, the Court followed the English case of R v Secretary of State for the Home Department Ex Parte Anderson [2002] UKHL 46 and said:
    • “We adopt without reservation the approach set out in Anderson and confirm that when sentencing an offender to a mandatory sentence of life imprisonment it is incumbent on the sentencing judge to fix a minimum term of imprisonment which the offender must serve prior to his or her release on licence (termed in the legislation ‘parole’).”
20. At paragraph 17 of Ludawane, the Court continued:
    • “As earlier said, it was not necessary under the former sentencing regime to specify a minimum term as a life sentence was not affected by parole provisions. With the advent of this legislative change the requirement to set a minimum term becomes apparent and with that the need for guidelines as to what minimum terms should be set.”
21. At paragraph [18] the Court endorsed three categories of seriousness in murder cases for purposes of determining the minimum term:
    • “18. Murder is one of the most serious offences in the criminal calendar. That is clear from its effect and is reflected in the mandatory penalty provided by the Legislature. This fundamental point should not be overlooked when determining a minimum term of imprisonment to be served. In common with other offences, whilst inevitably serious, murders themselves fall into the most, very and less serious categories. It may be that there should be more categories than the three set out here, but a useful starting point is that division from the worst category of offence to a category which may attract a shorter, although still substantial, minimum terms of imprisonment.” (Emphasis added).
22. In Ludawane the Court of Appeal followed the guidance given in Anderson which had referred to cases with a starting point of 12 years as a minimum sentence to be served. In Anderson the Court said:
    • “Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in paragraph N.13. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph.”
23. It is not necessary to look at those factors because clearly your offending is much more serious than this category described in Anderson. Your counsel has referred to a number of cases none of which had the aggravating factors present in your case. The closest case to yours is the decision of this Court in R v Goufi and keota Criminal Case 337 of 2017. In that case two offenders, one of whom was the security for the shop, attacked and robbed a husband and wife who were shopkeepers. Both shopkeepers were killed with knives used as weapons. The victims were vulnerable although as there were two together, they were perhaps not so vulnerable as your victim. The two offenders were equally callous as you. The Court imposed a minimum term of 53 years. The offenders had pleaded not guilty and were convicted after trial. The Court held that the offending was in the most serious category.
24. Because your violence was premeditated, with a vulnerable victim and you had breached the trust placed in you as an employee the minimum sentence for your offending must exceed the 15 to 16 year guideline which is where the second category of offending discussed in Anderson begins. I consider that the sustained nature of the attack using two different weapons, disguising yourself then waiting for your victim to arrive, then preventing others from having access to assist her places the minimum term between the second and third categories. After considering the aggravating factors I take a starting point for the minimum term of imprisonment as 27 years.
25. I reject the submission that the term should be reduced because of the perceived slight at words the deceased had previously used. This is not a case where you even came close to losing the power of self-control. You killed in retaliation. You planned what you would do and waited through the night for the deceased to come to the shop. You had the opportunity to reflect on your plan of action. You chose to proceed. You attacked, restrained and killed your employer. If anything such a reaction is an aggravating factor.
26. From the starting point of 27 years I recognise that you have not previously come to the attention of the police. That must be balanced against your brutal conduct on this occasion. I also recognise that you have entered a guilty plea. That plea was entered at a very late stage. It is however a recognition of what you did and perhaps of the strength of the case you faced. Had you entered your plea at an early stage I could accept that it showed remorse and you may have received a greater reduction than is the case. For your guilty plea and other mitigating factors I reduce that term to 25 years.
27. I bear in mind that this is not the first occasion when an employee of a shopkeeper has used violence against an employer. The community has a right to know that those who choose to act violently against others who have entrusted them with employment can expect the Courts to impose significant terms of imprisonment.

Orders

1. On the charge of murder, the Accused is convicted and sentenced to life imprisonment. The Accused is to serve a minimum of 25 years’ imprisonment before he is eligible for parole. The term of imprisonment commences from the date he was taken into custody.

By the Court
Justice Howard Lawry
Puisne Judge