Court/Judicial body: High Court of the Solomon Islands Court of Appeal of the Solomon Islands
Date: September 16, 2005 October 25, 2006 December 06, 2006 CRC
Provisions: Article 37: Torture and deprivation of liberty
Other international provisions:Universal Declaration of Human RightsInternational Covenant on Economic, Social and Cultural RightsInternational Convention on the Elimination of all forms of Racial DiscriminationUN Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”)
Domestic provisions: Solomon Islands Penal Code, Sections 16 (Compulsion as Defence), 200 (Murder) Solomon Islands Criminal Procedure Code (various) Solomon Islands Constitution: Sections 5(3)(b) (Trial Within a Reasonable Time), 7 (Protection from Inhumane Treatment, 45 (Pardons)
Background: This case consists of three separate decisions; two from the High Court of the Solomon Islands and one from the country’s Court of Appeal. The first decision (September 16, 2005) concerned an application for bail; the second decision (October 25, 2006) reviewed an appeal of conviction and an appeal against sentencing; and the third decision (December 06, 2006) addressed a sentencing appeal. In the first decision, the High Court denied the bail application of Billy Kelly Kelly, a then 17-year-old boy who had been arrested and accused of murder in 2003. While the Court did consider the boy’s youth, it did not feel that the circumstances warranted bail given the severity of the offence. In the second decision, the Court of Appeal reviewed and upheld the murder convictions and accompanying mandatory sentence of life imprisonment that had been imposed on Kelly. The Court considered international treaties related to children’s rights when making this decision, but found that they offered at best interpretive assistance and could not overturn a conviction resulting from a fair and just trial. However, the Court also examined the discretion allowed in sentencing under the Juvenile Offenders Act, which could and should have offered leniency to Kelly given his youthful age. In so doing, the Court vacated the sentence of life imprisonment and, in the third decision, the High Court considered what sentence would be appropriate.
Issue and resolution: Juvenile justice. While the conviction remained, the Court ultimately reduced Kelly’s sentence to 8 years imprisonment, the remainder to be served in the community in the care of a relative or equally fit person, with quarterly reports on his well-being to be prepared for the Social Welfare Office.
Court reasoning: In denying bail, the High Court first ruled that Kelly’s youth was not an adequate reason to order his release pending the outcome of his trial. The Court also stated that imposing sentences of mandatory life imprisonment on children would not necessarily contravene Article 37 of the CRC’s provisions on torture and deprivation of liberty. In reviewing Kelly’s prosecution and trial, the Court of Appeal found that the police force had at no time exceeded their authority and that the CRC when applied together with Solomon Islands domestic law gave no reason to overturn his conviction. In reviewing Kelly’s sentence, the Court found that the sentencing judge had failed to consider the Juvenile Offenders Act, which provides that judges must consider altering otherwise mandatory minimum sentences in light of an offender’s young age. The High Court then reviewed the circumstances of the case, including Kelly’s youth, acceptance of guilt, and remorse, considered that no other youthful offender in the country convicted of murder had been sentenced to life imprisonment, and found that the primary goal of juvenile justice should be care and rehabilitation as articulated in the CRC.
Excerpt citing CRC and other relevant human rights K v Regina : The various international Human Rights Conventions referred to (the Universal Declaration of Human Rights, The International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of all forms of Racial Discrimination and Convention on the Rights of the Child, must be read subject to the domestic legislation and the Constitution. Much of what is contained in those Conventions and international instruments are already well reflected in our domestic legislation. For instance, Article 37 of the CRC which provides as follows “(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without a possibility of release shall be imposed for offences committed by persons below 18 years of age…”. Our Constitution in section 7 provides for protection from inhuman treatment. In so far as the possibility of release applies to sentences of mandatory life sentences, the Constitution equally provides in section 45 a mechanism whereby the Governor-General may grant inter alia pardons on the advice of a Committee on the Prerogative of Mercy set up to assist him in the discharge of his duties under this provision. It cannot be said therefore that a mandatory life sentence of imprisonment for murder contravenes Article 37 of the CRC. If convicted, at the appropriate time, this accused maybe eligible for consideration together with others for pardon. It must be borne in mind, that the offences for which this accused had been charged with were committed in the company of adults. In so far as paragraph (b) of Article 37 provides: “(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in confirmative of the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;” It is important to bear in mind that such requirements are more than adequately catered for in the Juvenile Offenders Act, the Constitution, the Penal Code and the Criminal Procedure Code which set out how the criminal process in this country is to be carried out. It has never been suggested or raised that his liberty has been deprived unlawfully or arbitrarily. He has been duly arrested charged and detained for one of, if not the most serious offence under our Penal Code; being the murder of one of the six Melanesian Brothers and for joining an unlawful society that has been notorious for many atrocities and crimes committed in the Weather-Coast part of Guadalcanal and other parts of the country. The crimes he has been charged with cannot by any standards be described as not serious and his case not given priority as required. A trial date has now been given and he will have his day and turn in court at the appropriate time. I am not satisfied the delay in his case can be described as unreasonable in anyway. K v Regina : What is said to be relevant in this context is a consideration of the international treaties and conventions relating to the treatment of children in a position similar to that of the appellant at his trial. Such treaties and agreements may provide interpretative assistance in applying local law. But, disregarding occasions of ambiguity, they cannot control or displace the positive provisions of Solomon Islands law under which the prosecution was instituted and the trial of the appellant took place. By s.200 of the Penal Code, murder is, the circumstances specified in Part XX, and subject to Part IV of the Code, constituted an offence. There is no doubt that on the face of it the appellant was rightly convicted under the Code of murdering Mr Gatu, and no point is taken on appeal about the proof at trial of his having done the act of killing with the relevant intention specified in the Code so as to make it murder. … This leaves for consideration the propriety of prosecuting the appellant for a murder committed at so young age, having regard to his understanding and appreciation of the nature of the proceedings in which he was tried. Solomon Islands has acceded to the Convention on the Rights of the Child, which came into force on 2 September 1990. The Convention has not, however, been ratified by Parliament so as to incorporate it into the domestic law of Solomon Islands. As most, therefore, it serves as a guide to the procedure to be followed in case of this kind at common law or under statute. In fact, the only relevant provision of real consequence is Article 37 (a) providing that life imprisonment “without possibility of release” shall not be imposed on a person under 18 years who commits an offence”, but this is relevant to the sentencing of young offenders rather than to their prosecution or conviction. The International Guidelines for the Administration of Juvenile Justice 1985 (the “Beijing Rules”), which do not constitute the terms of a binding treaty, lay down desiderata which appear to have been complied with in the appellant’s case. So far as relevant here, those rules are again material only in relation to sentencing. In addition, reference was made to an Amnesty International policy paper on the prosecuting of child soldiers. It does not possess authoritative status in international law or in Solomon Islands law except as the opinions of persons who are expert in the subject in question. The emphasis in paragraph 6 of the paper is that “where persons under 18 acted entirely voluntarily, and were in control of their actions, they should be held to account for their actions in the appropriate setting.” Paragraph 6.1 remarks that the Convention on the Rights of the Child “does allow young people to be prosecuted if the procedure can be fair and takes into account the particular needs and vulnerability of young people.” … The International Guidelines for the Administration of Juvenile Justice 1985 (the “Beijing Rules”), which do not constitute the terms of a binding treaty, lay down desiderata which appear to have been complied with in the appellant’s case. So far as relevant here, those rules are again material only in relation to sentencing. In addition, reference was made to an Amnesty International policy paper on the prosecuting of child soldiers. It does not possess authoritative status in international law or in Solomon Islands law except as the opinions of persons who are expert in the subject in question. The emphasis in paragraph 6 of the paper is that “where persons under 18 acted entirely voluntarily, and were in control of their actions, they should be held to account for their actions in the appropriate setting.” Paragraph 6.1 remarks that the Convention on the Rights of the Child “does allow young people to be prosecuted if the procedure can be fair and takes into account the particular needs and vulnerability of young people.” Regina v K : I bear in mind the guidelines set out in the Convention on the Rights of the Child regarding how young persons ought to be treated. That the best interests of the child should be the central concern in any sentencing process and that care and rehabilitation should be the main focus of any order of the courts on conviction. CRIN Comments: CRIN believes that the Court’s decision to deny bail is inconsistent with the CRC, and that children should only be subject to pre-trial detention as a matter of last resort and in exceptional circumstances. In reviewing the conviction, the Court also stated in error that nothing in the CRC would prevent the imposition of a mandatory sentence of life imprisonment on a child offender – in fact, the CRC envisions just such a case in Article 37 when it proclaims that “[n]either capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age.” Ultimately, however, CRIN believes that the decision to reconsider the child’s sentence and the end result of the case are consistent with the CRC. As noted by the Court in its final judgment on the matter, the aim of juvenile justice must be rehabilitate, not to punish, and children in conflict with the law should wherever possible be offered alternative sentences to achieve this goal. Citations: “K” v Regina  SBHC 150; HCSI-CRC 368 of 2005, Crim. Case No. 368-05 (Sep. 16, 2005) “K” v Regina  SBCA 21; CA-CRAC 019 of 2006, Crim. Appeal No. 19 of 2006 (Oct. 25 2006) Regina v “K”  SBHC 53; HCSI-CRC 419 of 2005, Crim. Case No. 419 of 2005, (Dec. 6, 2006) Link to Full Judgment: “K” v Regina : http://www.paclii.org/sb/cases/SBHC/2005/150.html “K” v Regina : http://www.paclii.org/sb/cases/SBCA/2006/21.html Regina v “K” : http://www.paclii.org/sb/cases/SBHC/2006/53.html This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice. 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