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R v Nutoga [2024] SBHC 183; HCSI-CRC 28 of 2024 (29 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 28 of 2024

REX

V

AARON NUTOGA

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

Counsel; Mr Tovosia and Mr Beto for the Crown.
Counsel; Mr. Limeniala for the Defendant.

Keniapisia; PJ

Parole Entitlement Period

1. By verdict delivered on 14/10/2024, I convicted Aaron Nutoga (“AN”) for the murder of Rex Riafasia (“RR”). I sentenced AN to lifetime imprisonment, which is the only mandatory punishment for murder.
2. It is also incumbent upon me to set a minimum time period of life imprisonment that AN must serve, before he is entitled to parole. The issue for determination is – “What is the minimum period of life imprisonment AN must serve before he is entitled to parole?”
3. The leading authority on the 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 vulnerable child victim) should start at around 15 years or higher. Less serious cases (for example where people are known to each other and lost their tempers or quarrelled) should start at 12 years non-parole period. The 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. Although the present case has some aggravating features, it was not a premeditated killing. Mr. AN acted recklessly and impetuously in getting a knife and using that knife to strike at his victim, who had provoked him by swearing at him. It was a single yet fatal blow. The victim was a relative of AN. AN would ordinarily have had an obligation to protect his relative, in Fataleka custom. RR died from the serious wound on his stomach and blood loss immediately. I find this case to be in the moderate range of murder, bordering between murder and manslaughter, because AN was provoked, when RR swore at him. This is a case involving people who knew each other as relatives and lost their tempers in a quarrel (swearing). I therefore set the starting point sentence at 12 years. I will reduce the 12 years down to 10 years. This is a borderline case between murder and manslaughter owing to the fact that AN was provoked.
5. I identify the following serious aggravating factors: -
   • (i) AN used a deadly weapon , a long sharp bush knife, which aggravated the assault in two ways. First, he cannot claim that his blow was immediately impulsive. He took time to use his knife to cut his tobacco, and he thought about the swearing words. Second the knife, a deadly weapon, strongly increased the danger of his action in delivering a blow to his victim’s stomach.
   • (ii) The assault was disproportionate in two ways. First, a stab to the stomach was completely disproportionate to the swearing words thrown at AN. Second his victim was unarmed and sat at close range/distance at the back of Fataleka constituency truck. In these circumstances, I cannot say that it was an equal engagement.
6. 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 start point of 10 years because of the aggravating features. Accordingly, I raise the non-parole period from 10 years to 15 years.
7. r. AN is a first-time offender with no previous conviction. I also consider all other mitigating factors defense counsel submitted on such as; personal circumstances, compensation, rehabilitation and lack of intentional killing or provocation.
8. Because of the mitigating features, I reduce the non-parole period by 3 more years. This results in an effective non parole period of 12 years.
9. Mr. AN, I impose a period of 12 years before you may be entitled to apply for parole. This term begins to run from the day you were first remanded in custody. The Correctional Centre in Auki will have the correct date in the absence of submissions by counsel.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE