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Ulavania v R [2025] SBCA 6; SICOA-CRAC 28 of 2024 (11 April 2025)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The appellant was convicted after trial on one count charged pursuant to section 224 of the Penal Code. He was found guilty of causing a grievous harm with intent to cause grievous harm. He was sentenced to a term of imprisonment for 13 years. The sentencing judge took a starting point of 6 years and increased that by a further 15 years for aggravating factors. That made a total of 21 years. The judge then allowed a 4 year deduction for the Appellant having not previously been convicted and a further four years for his youthfulness and personal circumstances, leaving a final sentence of 13 years imprisonment. The Appellant now appeals against that sentence.
2. The notice of appeal lists two grounds of appeal as follows:
   1. The sentencing Judge erred in law in giving excessive weight to irrelevant considerations;
   2. The sentence of 13 years imprisonment for the offence of acts intended to cause grievous harm imposed by the sentencing judge was manifestly excessive in the circumstances.
3. Counsel for both the defence and the prosecution had filed a document entitled agreed facts. These included the following:
   • (i) On 13 May 2023 at Chui Chui Village at around 7am, the defendant, the victim and others were playing card games for money. The defendant lost one of the games and so he asked the victim and another person for $50. The victim gave him $50. He took the $50, tore it, and went to his tent.
   • (ii) The defendant went to his tent, took a knife and started cutting his belongings. A lady threw her skirt at the knife the defendant was holding and the knife fell out from his hand. The defendant also fell to the ground.
   • (iii) The defendant then had an argument with a person by the name of Elvis. As they were arguing the victim walked over to them to tell them to stop.
   • (iv) The defendant then had a scuffle with Elvis.
   • (v) The area where the incident took place is a slope like area with the slope being 45-degree in angle.
   • (vi) The victim fell down a steep cliff with a cliff of being 90° an angle.
   • (vii) The height of the cliff was about more than fifty (50m) metres.

(viii) The victim was later rushed to the good Samaritan Hospital.

4. The trial was concerned with what happened between agreed fact 4 and agreed fact
5. The judge recorded in paragraph 1 of his sentencing notes:
   • “I found the accused recklessly caused the victim to suffer from life-threatening injuries. The defendant was reckless in pushing the victim over a deadly cliff in the Gold ridge area... it was lucky that the victim/ complainant did not die from the risky cliff fall. I also noted that the victim suffered from serious bodily injuries. Furthermore, I noted in particular fractured thigh-bone and fractured knee-cap. I held the defendant responsible for the mishap and near death fall from which the victim suffered serious bodily injuries.”
6. At paragraph 2 of the Judge’s sentencing notes the Judge recorded:
   • “the victim is due back in hospital in June 2024 for a review on the metal put inside his fractured thigh-bone. Then the doctor will attend to or fix/ treat the fractured knee- cap. I saw the victim in Court. He was walking imbalanced (limping) due to the metal inserted inside his thigh bone (left leg)...The victim is yet to fully recover. He is still receiving medical treatment. In terms of any permanent injury that will affect the victim like disability, I do not know at this stage. I cannot rule out any permanent impacts from the fall injuries. But what I can say is the victim suffered from two main serious injuries to his body system (of fractured thigh-bone and fractured knee-cap)”
7. At the hearing of the appeal both counsel discussed the events that led to the victim falling down the slope and cliff. The judge had found that the Appellant had acted in several absurd ways prior to the incident. We make no comment on those findings. The Appellant had become involved in a scuffle with the person named Elvis. They were on a downwards slope that was about 45 degrees. Both Elvis and the Appellant became stuck. The sentencing Judge certainly became found that the Appellant was stuck when he was approached by the victim who had previously assisted him that evening. The judge found that the Appellant pushed the victim when he approached which resulted in the victim falling down the much steeper cliff. That fall caused the injuries that the Judge described.
8. Twice in paragraph 1 of the sentencing notes the Judge refers to his finding that the Defendant was reckless in causing the victim to fall over what he described as the deadly cliff. We raise this as such a finding would not be sufficient to conclude beyond reasonable doubt that the Appellant had the intent necessary for a conviction under section 224 of the Penal Code. However the Judge did convict him and there has been no appeal against that conviction so we must approach this appeal on the basis that the Appellant caused grievous to the victim with intent to cause him grievous harm.

Submissions for the Appellant

9. At the sentencing in the High Court, the Crown sought a starting point including the fact that the Appellant was intoxicated, as five years imprisonment. The Appellant did not challenge that. The Court however found a starting point of six years’ imprisonment. The Appellant accepts that a starting point of six years was available to the Judge. The Appellant however challenges the finding of five aggravating factors which each attracted an uplift of three years. Counsel submits that four of the aggravating factors were not aggravating factors at all, they were elements of the offence.
10. The judge found that the following were aggravating factors:
    3. Serious bodily injuries - The Victim suffered a fractured thigh bone and a fractured knee cap. He asserts that these are life threatening injuries. The Judge does not point to any evidence in particular for making that finding. He says that had there been slow or delayed medical intervention the victim could have died.
    4. Time spent in hospital – The Judge said he needed much lifesaving treatment to heal his serious bodily injuries and was in hospital for 3 months.
    5. Tremendous pain and suffering - The Judge referred to the evidence of the doctor that he could not treat the victim straight away but put him on pain relief for 5 days. The Judge said he observed that the victim still limped at the time of trial.
    6. Rehabilitation period – The Judge said it is not known how long it will take to recover. The victim had his next review due in June 2024.
    7. Defendant was intoxicated at the time of the offending – The Judge spoke of the problem of young men becoming intoxicated gaining confidence and courage and causing a nuisance.
11. Ms Palmer of counsel for the Appellant submitted that the factors listed (a) to (d) were not aggravating factors at all as they were part of the essential elements that the prosecution was required to prove.
12. The Penal Code defines grievous harm and harm as:
    • “grievous harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;
    • "harm" means any bodily hurt, disease or disorder whether permanent or temporary;”
13. Grievous harm then is really serious harm. The definition then accounts for why someone who is found to have caused grievous harm with an intention to cause grievous harm is liable to life imprisonment.
14. Suffering serious bodily injuries is part of what make an offence against section 224 so serious. As Ms Palmer submitted, if the victim had not suffered serious bodily injury he would not have been convicted of the offence. While acknowledging the pain that must have been suffered the pain is a direct consequence of the injury. There is nothing further that the Appellant is said to have done to make the pain greater. Similarly the hospitalisation and the possible rehabilitation period arise from the fact that serious injuries were suffered. The extent of each may increase the seriousness of the offence.
15. There are factors that the Court often is called on to consider as aggravating factors when considering offences against section 224. None of those are present in this case. That does not mean they are mitigating factors, they are simply an absence of those aggravating factors.
16. Examples of these aggravating factors include:
    1. Preplanning
    2. Pursuing the victim
    100. Acting on concert with others
    4. Using a weapon in the attack and the nature of such weapon
    5. Intruding on someone place of safety to inflict the harm
    6. The length of time of the attack including the number of blows if blows were inflicted.
17. These are some factors that are the reason behind the maximum penalty that can be imposed being as high as life imprisonment. In the present case the Appellant was trapped on a slope. The victim approached him, intending to assist him. There was a single push that resulted in the injuries. There was no suggestion of pre-planning. He did not act together with others. He had not intruded onto someone home to inflict the harm.
18. The lack of all these potential aggravating factors places the offence at the lower end of offences against section 224.
19. In this case an increase of 15 years for aggravating factors cannot be justified. The sentencing judge was bound to follow the guidance given by previous Court of Appeal decisions.
20. Similarly the reduction of sentence by 4 years on the basis that the Appellant has no previous conviction cannot be supported. Nor can the further reduction of another four years for personal circumstances. Again the sentencing Judge was required to follow the guidance of previous Court of Appeal decisions. He has not sentenced the Appellant in accordance with proper sentencing principles.
21. Counsel for the Respondent correctly asked this Court to look at the final sentence and consider whether such a sentence was available to the Judge. To do that we have been asked to look at decisions such as Malefo v R [2013] SBCA 7. That case was much more serious than the present case. The charge was attempted murder which meant he had been proved to have intended to kill. The victim was his wife so there was a breach of trust. The offender had forced the victim to drink some beer. He slapped her on the back of her head, he grabbed her and threw her off a bridge. She fell somewhere between 6.5 and 7.7 metres onto a rusting frame of a World War II relic. She received severe injuries to both legs. More than a year later she was still in pain and unable to walk easily. That case led to an increase in the guidelines for attempted murder. The Court upheld a final sentence of 11 years imprisonment. He too was convicted following trial.
22. Both counsel have referred to the Court of Appeal decision of Regina v Kada [2008] SBCA 9. Three offenders had been sentenced to terms of imprisonment for 4 years and 6 months for offences under section 224 and 299 of the penal Code. The offenders planned a burglary. Some were armed, one with a bush knife and another with a kitchen knife. A group of young men including the respondents, climbed a compound wall, went to the door and were met by an occupant one of the group struck this person on the neck severing the spinal cord. The others went through the house. Another occupant was attacked on the arm and a third on the back so that his spinal cord was also severed. Electrical goods worth over $13,000.00 were stolen. The first person struck was only 16 and was rendered a quadriplegic. His father was made a paraplegic. They will require constant care and medical attention for the rest of their lives.
23. The Court found the sentences imposed to be manifestly inadequate. The youngest of the offenders had the sentences for each of the charges under section 224 increased to seven years imprisonment. The sentence for the first charge began 2 years before the sentence on the second charge making a total of 9 years imprisonment. It is recorded that this offender was only 16 at the time and had pleaded guilty.
24. The second offender also pleaded guilty. He was 18 years old at the time. Nine years was imposed for each of the offences under section 224. The second of the sentences was to begin two years after the first, making a total of 11 years’ imprisonment.
25. The third was described as one of the ringleaders. He was convicted after trial. He was sentenced to 13 years in respect of each charge under section 224.
26. It is helpful to consider the case of Selo v Regina [2017] SBCA 17. The offender in that case had been part of a pre-planned robbery from a bank in the heart of the commercial centre of Honiara at a time when the Court found they must have known a large number of bystanders would be going about their business. The offenders were armed with bush knives. Two security guards came out of the bank taking money to their security vehicle. The money was in two boxes, each security guard holding a box. The offender went to the first of those security guards who dropped the box of money and ran away, when threatened by the offender. The offender then attacked the second security guard with the bush knife. The Court described the incident as:
    • “Selo attacked him viciously with the knife. The attack was so vicious, it completely amputated Mr M...’s left hand, leaving only the thumb. His elbow was also seriously injured.”
27. The offenders fled in their car with the proceeds of the robbery being four million dollars.
28. The Court then reviewed two cases one of those being Kada. The Court discussed the sentencing process at paragraph [40] as:
    • “In imposing sentence, the first step is to arrive at an appropriate starting point for each of the offences the appellant pleaded guilty to... The next step... is to consider the aggravating factors to reach an initial starting point. That must be considered against the well-established totality principle before mitigating factors are factored in.”
29. At paragraph [42] and [43] the Court set out how they came to the starting point after considering aggravating factors. The Court said:
    • “We are quite satisfied that the appropriate starting point for the bank robbery on its own would be 15 years. For the grievous bodily harm, noting the viciousness of the attack, 10 years, giving an overall starting point of 25 years. In reaching that starting point, for the bank robbery we would have started at 10 years and increased it by five years to take into account the aggravating features set out above. For the grievous bodily harm, we would start at eight years, and increase it to 10 years because of the aggravating features of that particular offence, including the injuries to the victim.
    • Standing back and applying the totality principle, we consider an overall appropriate sentence before considering mitigating factors in this case would be somewhat lower than the combined starting points, and we consider 21 years to be appropriate.”
30. We have set out the facts and the analysis by this Court as the starting point for the total criminality before considering mitigating factors was the same as selected by the Judge in the present case. It is immediately apparent that the uplifted starting point selected by the judge is totally out of step with the guidance given by this Court. The other important point to note was that the sentence for the grievous harm started at eight years and was increased to ten years. The allowance for mitigating factors was effectively taken off the sentence for the robbery. Putting aside the robbery, it is clear that the criminality for the charge under section 224 was much greater in Selo than in the present case. The cases of Malefo and Kada also make it quite clear that the sentence of 13 years imposed on the Appellant was manifestly excessive.
31. Mitigating factors are considered in two categories, those that relate to the offence and those that are personal to the offender. In this case there has been nothing put forward to show that there were any mitigating factors relating to the offence. The only mitigating factors identified were the lack of previous convictions and what is described as the youth of the Appellant. I understand that he was 24 so little credit can be given for that. There was reference to the time spent in custody following arrest through to sentence. That is not a mitigating factor but has been taken into account in the imposition of sentence.
32. It is clear that the appeal must be allowed. The sentence imposed was clearly manifestly excessive. There has been no issue taken with the starting point so we adopt a starting point of six years’ imprisonment. The fact that there were serious injuries is clearly an element of the offence and taken into account in fixing the starting point. The Court is entitled to consider an uplift is appropriate to take into account pain and suffering if it is considered significantly greater than would have been expected for the injuries suffered. Similarly the time spent in hospital and the recuperation period arise from the fact of the victim suffered serious injuries. However as both counsel accept there can be an uplift to take into account the Judge’s conclusions that both must be much greater than would necessarily be expected. The most that could be added in the present case under those three headings would be an additional two years which would lift the starting point to eight years’ imprisonment. The offending appears to have come about because of the consumption of alcohol. In the circumstances of this case a further six months is added to take into account the intoxication of the Appellant at the time of the offending. That brings the starting point before mitigating factors to eight years’ imprisonment. We would allow a reduction of six months to take account of his lack of prior convictions. That is the only mitigating factor relevant to the sentence. The final sentence is then eight years’ imprisonment to commence from the date of his arrest.

Orders

1. The appeal is allowed.
2. The sentence is reduced to eight years’ imprisonment to commence from 13 May 2023 being the date of his arrest.

Muria (P)
Gavara-Nanu (JA)
Lawry (JA)