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Tongana v Regina [2007] SBHC 62; HCSI-CRAC 173 of 2007 (29 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 173 of 2007

ANTHONY SOLOMON TONGANA

-v-

REGINA

(Mwanesalua, J.)

Hearing: 25 May 2007
Judgment: 29 May 2007

DPP for the Crown
P. Southey for the Appellant

JUDGMENT

Mwanesalua, J: This is an appeal against sentence by Mr. Anthony Solomon Tongana. He was charged with the following offences before the Magistrate’s Court at Tulagi on 13 March 2007:

Count 1: Intimidation, contrary to s.132 of the Penal Code.

Count 2: Unlawful damage, contrary to s.326 of the Penal Code.

Count 3: Assault causing actual bodily harm, contrary to s.245 of the Penal Code.

Count 4: Unlawful damage, contrary to s.326 of the Penal Code.

Count 5: Unlawful damage, contrary to s.326 of the Penal Code.

The Appellant pleaded guilty to all the counts and was sentenced as follows:

Counts 1 and 2: 3 months imprisonment for each count to be served concurrently.

Count 3: 2 years imprisonment.

Counts 4 and 5: 6 months imprisonment for each count to be served cumulatively upon each other and upon the sentences imposed for counts 1 and 2.

The total imprisonment sentence imposed upon the Appellant was therefore 3 years and 3 months.

The Appellant appealed to the High Court against sentence alleging that the Learned Sentencing Magistrate had mistakenly sentenced him on the charge of causing grievous bodily harm to the victim under s.226 of the Penal Code in respect of count 3. He according sought an order that the sentence on count 3 be set aside and be substituted with a lesser sentence.

The Police charged the Appellant on 20 May 2005 as appeared from the charge sheets. The offence charged on count 3 was grievous harm under s.226 of the Penal Code. The Warrant of Commitment indicated that the Appellant was convicted of grievous harm under s.224 of the Penal Code in count 3, which carries a maximum sentence of life imprisonment.

There was no evidence in the file of the below to show that the Appellant was charged under s.224 of the Penal Code. There was evidence to show how s.224 got to count 3 in the warrant of commitment. This court can only deduce from this, that the entry of conviction for grievous harm under s.224 in count 3 in the Warrant of Commitment was made by mistake.

The offences on which the Appellant was charged with and pleaded to on 13 March 2007 were set out in the Learned Magistrate’s Sentencing record. That record indicated that the Appellant was charged for assault causing grievous bodily harm under s.226 in count 3. The Appellant contended that he was charged and pleaded guilty to assault causing actual bodily harm under s.245 of the Penal Code rather than grievous harm, under s.226 of the Penal Code. Advocates for the Crown and the Appellant in the court below confirmed this to be the case. This position was confirmed in the Learned Sentencing Magistrate’s Bench Sheet. That Bench Sheet record showed the following evidence:

"No/objection

Count 3 to be amended to a charge of causing actual bodily harm pursuant to s.245 of the Penal Code.

P.G. to that charge.

Sentence

1. Intimidation - Imp. 3m

2. Unlawful damage – Imp. 3m concurrent

3. Assault A. BH – Imp. 2 years

4. Unlawful damage – Imp. 6 m

5. Unlawful damage – Imp. 6m

Sentences for charges 3, 4 and 5 to be served cumulatively upon each other and the sentence for charges 1 and 2. Total terms 3 years 3 months."

A portion of the untyped sentencing record also showed that the Appellant was convicted of assault occasioning actual bodily harm and was sentenced to 2 years imprisonment.

In view this evidence, it is clear that the sentenced of 2 years imprisonment imposed on the Appellant on count 3, was for the offence of assault causing actual bodily harm under s.245 of the Penal Code which carries a maximum sentence of five years imprisonment. The Appellant was not therefore sentenced for causing grievous harm under s.226 of the Penal Code which carries a maximum sentence of 14 years imprisonment.

The charge of grievous harm under s.226 as appeared in count 3 in the sentence came from the Police charge sheet which was amended to assault causing actual bodily harm, and to which the Appellant pleaded guilty, as recorded in the Bench Sheet. The Learned Magistrate therefore did not sentence the Appellant for the offence of grievous harm under s.226 of the Penal Code on 13 March 2007 as alleged by the Appellant.

The Appellant’s appeal is dismissed. I order accordingly.

Francis Mwanesalua
Puisne Judge