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R v Mamuala [2024] SBHC 191; HCSI-CRC 122 of 2024 (26 March 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 122 of 2024

REX

V

PHILIP MAMUALA AND MICHAEL SODU

Date of Hearing: 10 February 2024
Date of Sentence: 26 Mach 2024

Ms L Pellie for the Crown
Mr B Alasia for the 1st Defendant
Miss R Palmer for the 2nd Defendant

SENTENCING AFTER PLEA OF GUILTY

Introduction:

1. Both defendants were originally charged for the offence of murder contrary to section 200 of the Penal code. The charge was related to the death of the deceased David Horiwaio on 3^rd November 2024, at the National Referral Hospital compound.
2. The first Defendant hails from Takwa village, North Malaita, and the second defendant comes from Tambaiki village, Ngella, Central Province. The decease comes from Masupa village, East AreAre, Malaita Province.
3. On 22^nd July 2024 both defendants entered a plea of not guilty to the murder information and trial was fixed for 3^rd July 2025.
4. On that day the crown filed a nolle prosqui for the murder information and was dismissed and the defendants were acquitted. At the same time filed an amended information of manslaughter contrary to section 199 of the Penal Code.
5. On 4^th February 2025 both Defendants pleaded guilty to the amended information and mitigation and sentencing was set for 10^th February 2025.

Facts of the Case.

6. The two defendants Mr. Philip Mamuala and Mr. Michael Sodu, on 3^rd November, were at private area next to National Referral Hospital own by a local businessman named Tazan.
7. Both defendant were market vendors in that location selling betel-nuts and cigarettes. Whilst sitting in their market stalls they saw the decease throwing stones at some people at their market area. The deceased in fact threw stones at them and chased them. Upon seeing that both defendants assaulted him resulted of his death. Both assaulted him at the Post Natal vicinity area at the National Referral Hospital.

Maximum Penalty.

8. The maximum penalty for manslaughter according to section 199 Penal Code is life imprisonment. However, in the case of R v Mana^[1], the Court made the following comments, the maximum sentence is to be reserved for the worst of offence cognizable with that section. Life sentence to be imposed only in the worst category of cases.
9. When deciding whether to impose a sentence of life imprisonment the court has to consider certain things;
   • 1. Where an offence itself is grave enough to require a very long sentence.
   • 2. Where it appears from the nature of the offence or from the defendant’s history that he is a person of unstable character and likely will commit offence in the future

3. Where if the offence is committed, the consequence to others be injurious, as in the case of sexual offences or crime of violence.

Principles of Sentencing:

10. In the case of Tii v R^[2], the Court of Appeal stated that a sentence should be crafted to attain the goals of punishment deterrence and rehabilitation.
11. The scope of deterrence and application covers both general and personal deterrence. General deterrence is required to reflect that the community does not accept the defendants conduct, and to deter other members of the community from committing any or similar offence.
12. Personal deterrence is aimed at discouraging the defendant from committing the same offence in the future. The sentence should deter the defendant who should learn from his past mistakes and be conscious that should he repeats the same he will be dealt with seriously under the law.
13. In respect to the principle of punishment, the Court of Appeal in R v Ramo,^[3] stated that the sole criteria relevant to a determination of the upper limit of an appropriate sentence is that punishment fits the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determination of an appropriate sentence.
14. These principles were developed by the Courts proving guidelines to assist in the exercise of discretion.
15. The work of the judge is to decide which principle apply in a given case. In some cases the judge will give a balance consideration of all the principle, in others a judge will emphasize one principle over the other.
16. The Court should also ask itself whether public interest in the case will be served by reattribute and deterrence of the offender and other from committing the type of offence, or whether public interest will be better served by rehabilitation of the offended.

Sentencing Structure.

17. With the appropriate guidance, a sentencing judge should identify a starting point. From the starting point there will be adjustment to take into proper account factors which make the offending more serious (aggravating features) or may serve to suggest that the sentence is too light, often more relate to the offender than the offence (mitigating feature). This require the judge to set out what he regards as aggravating and mitigating when he intends take them into account in the final sentence or reasons why he intends not to take them into account.
18. After identifying of the aggravating and mitigating features and how they affect the starting point reference should be made to the effect, if application of any guilty plea. Where a discount is to be given that it should be indicated. Where no discount is to be given a reason for that decision should appear in the remarks made on sentencing. Equally where no allowance to be made for pre- sentence period in custody served relating to the offending, a reason should be given, Tii V R 2016^[4].
19. Finally, the totality of sentence should be examined, ensure that the end result properly reflect the criminality involved in the offending.
20. Sentencing remarks should include, inter alia, the identified starting point, aggravating and mitigation features, account taking for plea, the application of totality principle and a discussion of credit for pre-sentence custody.

Starting Point.

21. The offence of manslaughter is a serious offence as reflected in the maximum sentence of life imprisonment which the Court can impose in extreme cases of seriousness, depending on the circumstances of each case, the presence of aggravating and mitigating features.
22. It is accepted that the offence of manslaughter can vary widely in culpability and circumstances. For this case the courts have dealt with and imposed varying sentences from 2 years to 15 years in a more serious case depend on facts and level of culpability.
23. In the case of Popoe V R^[5], the Court of Appeal had fixed 7 years as the starting point, however when a weapon was used in the offending, a sentence of imprisonment of 6 years or more should be imposed as a starting point.
24. In Tapaámae V R^[6], the Court of Appeal stated in paragraph 8 that the starting point of 7 years in Popoe case had already took into account where no weapon was used.
25. Both the Counsel for the Crown and Counsel for the defendant agree that the starting point should be 7 years, whilst the Counsel for 2^nd defendant resort to 6 years to impose as a starting point.
26. From another perspective is the case of R V Idu^[7] which the Court of Appeal commented that 4 years starting point was lenient but not outside of the range permissible, hence the Court of Appeal did not interfere but quashed a suspended sentence and imposed 30 months imprisonment.
27. In R v Ngelea^[8], the Court of Appeal set 8 years as a starting point. This is a case where Mr. Nglea was charge for Manslaughter and other co-accused were charged for acts causing actual bodily harm.
28. In the case of R v Rongodala^[9], the Court of Appeal held that 7 years imprisonment may be held as being on high side for causing death by single blow to the head with an axe, it cannot be said to be manifestly excessive but within the applicable range, the appeal was dismissed.
29. From the authorities cited and from which the Counsels have relied on in their submissions, I could able to assess that the range of starting point is between 4 years and 8 as permissible by the Court of Appeal in the case of Idu.
30. Having considered the starting point in the case of Popoe where a weapon is used, 7 years should be a starting point. In the case of Ngelea the deceased was assaulted by Mr. Ngelea and another, there starting point is 8 years.
31. Therefore the starting point in this case which I decide as appropriate is 7and half years.

Aggravating features:

32. The aggravating features present in this case as determinant by the facts are; the deceased was packed assaulted by two mature persons. Both defendants ganged up together and attacked the deceased. Any scientific assessment of the strength of 2 against one is disproportionate. The strength or capability of the deceased to protect himself or veered any onslaught is definitely impossible.
33. Luckily the charge of murder was nollied, and both were discharged and acquit of it however, persistent assault on a helpless man lying on the ground implicate an ulterior motive, even to expect a grievous harm on him. This rather aggravates and enhance the assaults more seriously.
34. Even worst when such a person was a vulnerable person. The deceased was a person with mental health condition. A check was made with the Psychiatric Mental Unit at the National Referral Hospital, the Unit confirmed that the deceased was one of their patients.
35. So, who was the aggressor so that an action was require to defuse the situation that subsist at that time? For sure it was not the deceased. Apparently, the defendants were under an assumptive myth that their actions were logic legally required to sustain orderly behavior near the Hospital vicinity. In fact, they were wrong. There is no excuse in law that permits a man to assault a mentally ill person. Even to the extent that there was no knowledge of such illness.
36. The law protects the kind of such ill persons from public aggression. They were vulnerable people and no one should take advantage of them.
37. With the present of the aggravating features, I therefore uplift the head sentence by 4 years, totaling up to 11 and half years.

Mitigating Features:
Rehabilitation:

38. One of the mitigating features submitted is rehabilitation prospect for the first defendant. I noted the age of the first defendant is 27 years now 31 years. The purpose of rehabilitation is to ensure the defendant do not re-offend again and re-create a new spirit in the offender.
39. When pleading on behalf of the defendant, it is an opinion of the advocator that a less harsh sentence be imposed, or a sentence that will refurbish a contrite heart.
40. One means of rehabilitating a convicted defendant is imposing a imprisonment sentence. In this case it was the reckless act by both defendants caused the death of the deceased. Therefore, immediate imprisonment is eminent.

Delay:

41. Delay in mitigation in this case intends to accommodate delay in pre-trial custody, and delay endowed by the justice in the case.
42. In the case of Bara V R^[10], the Court of Appeal, among others stated that allowance is to be made for pre-trial sentence in custody, where no allowance is given reason must be given, the Courts since then have been in full compliance to the Court of Appeal directions. Delay in custody always alleviated by reduction and the courts are fully aware of it.
43. In relation to delay in terms of Justice, I noted that the first Information of murder was filed in this Court on 5^th April 2024, and the first mention date was on 3/5/2024. Final submission as to sentence was done on 10^th February 2025. Obviously, the file is under the administration of the court for merely ten months, is that delay, not as I would think?
44. I noted the Counsel refers to the case of Kyio v R^[11], where a delay of 5 years had reduced the sentence from 5 years to 3 years. In the case of R v Gwali^[12], a delay of 3 years was due to administrative cause? Charges of murder was nollied and amended with charge of Manslaughter, the defendants then entered their pleas on 4^th February 2025.

Plea of Guilty:

45. I consider and accepted the fact that both defendants had entered a plea of guilty when the amended information of manslaughter was put to them. This serves time and resources to run a full trial.
46. A plea of guilty demonstrates a person is remorseful and sorry for his actions. He accepts culpability and wrong, and is willing to accept responsibility for his conduct.
47. As such I give credit to both defendants for their brave approach.

First Time Offenders:

48. I noted there is no evidence on previous conviction for the defendants. This offending is their first but the worst attribute to the life of a human being. I also give credit to both defendants for being co-operated with Police during investigations.

Compensation:

49. I noted there was compensation of $20,000.00 paid to the deceased’s family. In the case of R V Asuana.^[13], the Court state that custom compensation must be considered by the Court in assessing sentence as a mitigating factor. The scale of payment may give some indication of the degree of contrition. The Court must avoid attaching such weight to it that it appears to be a means of buying oneself out of trouble.
50. $20,000.00 in my view is a reasonable amount given a life of human being was taken away by the hands of the two defendants. This also symbolizes in custom as restoration of peace between the parties, the Courts have recognized this as mitigating factor.

Sentence assessment:

51. In assessing the sentence, I consider the autopsy report which Dr. Maraka identified that the cause of death is “probable Cardiac arrhythmia” due to atherosclerosis of coronary artery on left side. Dr Maraka further states that it was possible that during the assault, the deceased was under stress, and need for more oxygen flow in the blood, but narrowing of the coronary artery did not sustain blood and oxygen supply to the heart muscle. Thus, triggered sudden death of the deceased.
52. I noted the deceased had possessed underlying medical condition to his heart as well as being a patient at the Psychiatric Mental Unit as confirmed. If he was stressed at the time of the assaults, that his medical problem and him alone will resolve with the Drs.
53. It would appear the persistent assaults by both defendants on a person with underlying medical condition, as Dr Marake rightly started triggered his sudden death. Therefore, it cannot be described that both men had no hands in contributing to the deceased death, their act of repeated assaults.
54. In any event having considered all the mitigating factors, I therefore reduce the head sentence by 3 years, making it 8 years and half from the head sentence. Number of months spent in custody by the defendants be deducted from 8 and half years imprisonment.

Orders:

1. Both defendants are guilty on their own admission on the charge of Manslaughter.
2. Both Defendants to serve 8 and half year’s imprisonment each.
3. I year 3 months and 4 days both defendants served in custody be deducted from the 8 and half years imprisonment sentence.

The Court.
Hon. Faukona Rex.
DEPUTY CHIEF JUSTICE.

^[1] [2006] SBHC 145; HCSI – CRC of 2003 (21 March 2006).
^[2] [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017).
^[3] [2013] SBCA 9: CRAC 38 of 2012 (26 April 2013)
^[4][2017] SBCA 6
^[5][2015] SBC 20; SICOA-CRAC 42 of 2014 (9 October 2015).
^[6] [2022] SBCA 1; SICOA-CRAC 16 of 2021 (8 July 2022).
^[7] [2023] SBHC 8; HCSI- CRAC 423 of 2020 (31 March 2023).
^[8] [2023] SBHC 8; HCSI-CRC 423 of 2020 (31 March 2023]
^[9] [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2028).
^[10] [2018]SBCA 10; SICOA –CRAC 36 of 2017 (11 May 2018).
^[11][2004] SBHC 90
^[12] [1999] SBHC 10
^[13] [1990] SBHC 106; [1990] SILR 201 (12 October1990).