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R v Pandavisu [2019] SBHC 80; HCSI-CRC 288 of 2018 (6 September 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Civil No. 288 of 2018

REGINA

V

THOMAS PANDAVISU
Accused

Date of Ruling: 6 September 2019

Ms. M Suifa’asia for the Prosecution
Mr. R D Pulekera for the Defence

SENTENCE

The accused Tom Pandavisu pleaded guilty on one charge of intended to cause grievous harm c/s 244 (a) of the Penal Code and accordingly convicted on the charge.

Summary of Facts

The circumstances of the offence have been described in the agreed summary of facts filed in the court on 16^th August 2019 as follows:

The victim Harry Pandavisu and accused Thomas Pandavisu are related brothers.

On Monday 22 January 2018 at 5am in the morning the victim Harry Pandavisu went to the defendant’s house and told the defendant to stop his music because people were still asleep. And he and his wife went to the coconut plantation to work.

On the evening of that day between 4 and 5pm, the victim and his wife returned from the plantation. As they arrived at the village, the defendant shout out to the victim and said “Harry you kam aot lo hia, me laek facim you”.

The victim walked over to the defendant’s house. He put his knives on the veranda of the defendant’s house. The defendant approached him with a 4 x 2 Timber in his right hand. The defendant reached the victim and hit the timber towards his head. The victim lifted up his right hand to block the timber. The timber broke into two and it landed on the front of his head. The victim’s right hand broke as a result.

The victim fell to the ground and the defendant pulled out one of the knives that the victim placed on his veranda. The defendant used the knife to cut the victim on his left backside, twice.

The defendant strike the knife a third time to cut the victim. The victim defended himself from the knife, and it resulted in a slit to his left palm and amputated two of his small fingers.
The victim Harry Pandavisu was admitted to the National Referral Hospital on 22 January 2018. A medical report by Doctor Jagilly dated 12 March 2018, states that the victim sustained cuts to his back and painful right forearm. And a copy of the medical report presented to the Crown with sentencing submissions to the court.

Aggravating Features

The crown submit that there are aggravating features of the offences. They are –

1. The victim was 61 years old male compared to the accused,
2. Accused armed with a piece of timber (4 x 2-1 in length. He swung the timber and hit the victim that made him fell to the ground,
3. The accused used a deadly weapon, being knife to cut the victim’s hand and slashed the victim twice on the back whilst the victim fell onto the ground; and

The nature of the injuries were serious as stated by the doctor in the medical report i.e. the right forearm has both bones broken, two large deep wounds, one at the left upper back and the other was at the lower right chest and victim need further surgery to remove the metal in his right forearm.

Mitigating Factors

The defence also submit and acknowledge these facts as aggravating features of this offence that accused had consumed alcohol when he committed the offence, the used of weapon (knife) and the victim suffered serious harm.

The defence submit personal details as mitigating factors that the accused:

1. Remorse and entered plea of guilty at the first available and responsible opportunity,
2. Has no previous conviction, a first offender,
3. Age around 50 years old at the time of offending, with 5 children and deceased wife,
4. Remanded in custody but continued to be responsible to his children’s education; and
5. Cooperation with the Police investigation

The Court

The fact that an offence is serious is not necessarily an aggravating feature of the offence, as this serious offence may or not have features of aggravation. With this case it has features of aggravation as disclosed in the facts.

With the Crown’s submissions on features of aggravation I will deal with them as follows:

1. I noted the age difference is about 10 years as the complainant about 60 years old and the accused was about 50 years old, a somewhat significant age difference a feature,
2. Accused had used weapon of timber and knife to the victim who was not armed, a serious or considerate act,
3. Forcefulness and continuity by the accused to attack while the victim was already laying on the ground with a knife and cut the victim’s hand and slashed the victim twice on the back is serious act and aggravate. The same is also said for what the doctor in the medical report described at the right forearm has both bones broken, two large deep wounds, one at the left upper back and the other was at the lower right chest and victim need further survey to remove the metal in his right forearm.

As to the submissions by the defence, I take into account the accused has pleaded guilty at the first opportunity, a first offender, the age and cooperation with the Police investigation. I remind myself that it is settled in law that matters of mitigation personal to the offender has effect on the sentence of serious crimes.

With this offence by the accused it was committed in the circumstances or with aggravating features as stated above. The victim was not armed or did not have any weapon in his possession, hence was difficult to defend himself from the timber and knife from the accused.

The fact is obvious that the accused attacked the victim with two weapons i.e. Timber and knife thus shows the accused intended to cause injury to the victim which he actually did to him.

I take as a starting point for sentencing in this type of case, a sentence of four years. And taking into account the aggravating and mitigating factors I find that an appropriate sentence for the accused is five 5 years.

ORDERS

1. The accused is sentenced to five (5) years imprisonment.
2. Period spent in custody to be deducted from this sentence.

THE COURT
Justice Leonard R Maina
Puisne Judge