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R v Felega [2024] SBHC 182; HCSI-CRC 12 of 2024 (29 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 12 of 2024

REX

V

JONATHAN FELEGA

Date of Hearing: 1 November 2024 (Written Submission)
Date of Sentence: 29 November 2024

Counsel; Mr. Kelesi (DPP) and Ms. Oroi for the Crown.
Counsel; Mr. Alasia for the Defendant.

Keniapisia; PJ

PAROLE ENTITLEMENT PERIOD

1. Mr. Jonathan Felega (“JF”), by verdict delivered on 14/10/2024, I convicted you for the murder of Peter Hamusin (“PH”). You assaulted PH. PH fell to the ground unconscious. Then you dragged PH and threw him over the edge of the cliff at Minisi Settlement. PH died from serious multiple fractures to his ribs and mandible. In the same verdict, I also imposed the only mandatory punishment for murder and sentenced you to life imprisonment.
2. It is also incumbent on me to set a minimum time period of life imprisonment that you must serve before you are entitled to parole. The issue is, “What is the minimum period of life imprisonment Mr. JF must serve before he is entitled to parole?”
3. The leading authority on minimum parole entitlement period is the Court of Appeal case of Ludawane, which set guidelines for different bands of murder convictions. The highest band, for exceptionally serious cases (for example as in Ludawane, a young, helpless victim to whom the offender owed a moral duty as a father, sustained brutal beatings and assaults carried out over 4 days and the sheer brutality of the crime) attracted a starting point of 20 years non-parole period (reduced to 18 years for mitigating features in that case). Generally serious murder cases (for example, contract killing, multiple injuries or a vulnerable child victim) should start around 15 years or higher. Less serious cases (for example where people known to each other lost their temper or quarrelled) could start at 12 years non-parole period. Normal starting point sentence could be reduced if the case came close to the borderline between murder and manslaughter or if the offender was provoked.
4. This is a case of premeditated killing. Mr. JF was drunk, returning from Sagelua Village to Minisi Settlement after drinking alcohol at Isaiah’s house with PH and others. The drinking party lasted into the late hours of 10/08/2023 and into the early hours of 11/08/2023.
5. JF acted recklessly when he went after PH, grabbed him, pulled him back, and physically assaulted him with his hand and a stick. PH fell to the ground and was unconscious. JF dragged PH to the edge of the cliff where he threw him over the cliff leading directly to PH’s death, because PH landed brutally at the bottom of the cliff, causing fatal multiple ribs and mandible fractures. JF pre-planned a retaliation killing on PH due to past incidents where PH and his brothers beat JF severely. JF had other civilised, cultural, religious and legitimate ways to resolve any ill-feelings he had with PH. Instead he chose to take revenge killing. I find this case as a generally serious murder. I will put the starting point sentence at 15 years.
6. With respect, I do not accept defence’s submission to reduce the start point downwards to 8/9 years, just because JF showed a caring attitude when he carried PH from the bottom of the cliff, and called out for help to carry PH to his house. All these were acts intended to hide JF’s killing of PH rather than to demonstrate good Samaritan intent. JF also told Renaldo, his nephew, not to tell the true story about the killing. I found evidence on these in the main verdict.
7. The fact that Mr JF was drunk may be an aggravating feature or not. However, his drunkenness is no excuse. He cannot evade liability because he put himself in a state where he was unable to think as clearly as he could have done, if sober.
8. I identify the following serious aggravating factors: -
   • (i) JF used a weapon (stick) which aggravated the assault in two ways. First, he cannot claim his blow was immediately impulsive. He took time to walk after PH, assaulted him with his hands, took time to locate a stick, PH fell to the ground unconscious, dragged PH on the ground, before finally pushing him over the cliff. Secondly the stick, a deadly weapon, strongly increased the danger of his action, by delivering the fatal blow to the deceased’s neck, which caused the deceased to fall to the ground unconscious, before he dragged him to the edge of the cliff and then finally and inhumanly pushed him over the cliff. PH landed brutally at the bottom of the cliff causing multiple ribs and mandible fractures, leading directly to PH’s dead.
   • (ii) The assault occurred in the hours of darkness, in the early morning of 11/08/2023, making it difficult for the deceased to anticipate his danger or defend himself. PH was walking on the road next to the cliff and suddenly was hit from the back by JF. JF ambushed and killed PH.
   • (iii) The assault was disproportionate in two ways. First a stab to the neck and then the pushing over at the edge of the deadly high rocky cliff, which was completely disproportional to the past incident for which JF took retaliatory actions. Second his victim was unarmed and drunk. It was not an equal engagement.
   • (iv) Offence was committed in the presence of a child who was the nephew of JF. The child Renaldo, will no doubt experience trauma and nightmare in witnessing the horrific killing. JF as the adult uncle to Renaldo has a moral duty to protect Renaldo from being party to and witnessing arrogant attitudes such as anger, assault, fighting, revenge killing and eventually murder.
9. Serious aggravating features in a murder case, should generally be counted in substantial steps in years rather than weeks or months. In this case, I add 5 years to the non-parole period because of the serious aggravating features. Accordingly, I raise the non-parole period to 20 years.
10. Mr JF is a first-time offender with no previous conviction. Personal circumstances and rehabilitation are two other mitigating factors I take into account. I shall reduce JF’s non-parole period by 5 years in respect of these mitigating factors. The result is an effective non-parole period of 15 years.
11. Mr. JF, I impose a period of 15 years before you may be entitled to apply for parole. This term begins to run from the time you were first remanded. The Correctional authority will have the records to ascertain the actual date.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE