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R v Tom [2020] SBHC 126; HCSI-CRC 206 of 2018 (29 October 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.; 206 of 2018

REGINA

V

PHILIP TOM

Date of Sentence: 29 October 2020

Counsel
Ratu O and Tovosia S for the Prosecution
Pulekera R D Accused

REASON ON THE ORAL SENTENCE

Maina PJ:

Defendant Philip Tom was charged for murdering his wife at Yandina, Russel Islands Central Province and he had been in pre-trial custody since 17^th December 2017.

When this case came back for mention on 29^th October 2020, Counsel Ratu for the Crown told the court that the Director of Public Prosecutions (DPP) had entered nollie prosequi on the murder charge for the defendant. The nolle prosequi was filed and he was discharged on the murder charge.

An amended information of Common Assault contrary to section 244 of the Penal Code was also filed by the Crown.

I noted from the court case file the accused had been in custody since 2017 and I decided deal with his new charge than sending it back to the magistrate court. He was arraigned and he pleaded on the charge of common assault.

Summary of Agreed Facts

The accused Philip Tom is from Bina Village, West Kwaio, Malaita Province and his wife Iris Amon (deceased) of Wagina Choiseul Province. They had married since 2014 and lived and work at Yandina, Russell Islands Central Province.

On Tuesday October, 6^th 2015, the accused and his wife had an argument and the accused had kicked his wife’s on her belly, backside and legs.

On the same day at about 1pm, the deceased sister Elizabeth Amon left the school where her husband worked and went down to the main station to Ray Masitolo’s house at Yandina. When she arrived at the house, she saw the accused was sitting at the veranda. She asked accused where were everybody and he told her that they were at the beach. She then went to the beach.

Elizabeth Amon then came back and she heard her sister Iris was crying in the house as if she was crying for help. She walked in the house and saw her sister Iris Amon was alone and lying on the floor fully naked. She asked her sister what had happened to her but Iris Amon asked Elizabeth to go and bring to her a calico (clothe) and rub it on her body as she was hot.

Elizabeth went closer to her sister Iris who was lying on the floor and she noticed the blood between the victim’s legs and in particular on her vagina. She then asked Iris what had happened to her. Iris replied that the accused had “killem” attacked or assaulted her.

Elizabeth then bathed her with a towel and laid her down at the veranda of the house.

On Thursday, October 8^th 2015, Iris was transported to Yandina Clinic for medical treatment and later on Monday, October 12^th 2015, the Iris Amon died at Yandina Clinic, Russell Islands, Central Islands Province.

An Autopsy examination was done on the 20^th of October 2015, but the cause of death cannot be determined.

Conviction and Sentence

The accused is found guilty upon his own plea and accordingly convicted on the charge of common assault contrary to section 244 of the Penal Code. Noting the circumstances or background of the case I immediately sentenced the accused to one year imprisonment. I also ordered that defendant be released from custody at the raising of the court.

I informed the counsels that I will in writing provide the reasons for the sentence and his immediate release from custody and I now do so.

The Law

The offence of common assault under section 244 of the Penal Code is misdemeanor and the maximum penalty is one year imprisonment.

Pre-trial case

The backgrounds or circumstances in this case is prevailing, overriding or superseding:

• the accused was in pre-trial custody on the murder charge since 17^th December 2017 or about 4 years
• until the DPP in exercise her power by section 91 (c) of the National Constitution and section 68 (1) of the Criminal Procedure Code entered nolle prosequi in respect of the accused Philip Tom charged with the offence of murder contrary to section 200 of the Penal Code.
• a new charge of common assault contrary to section 244 of the Penal Code was filed by the Crown.
• on arraignment, the accused Philip Tom pleaded guilty on the charge, an offence with the maximum penalty of 1-year imprisonment.

The accused had pleaded guilty, convicted and was to be sentenced for an offence with the maximum penalty of one-year imprisonment. He had been remand in custody on murder charge for about 4 years until the DPP nollie Prosequi and filed the amended information of common assault.

The manner or may be the attitude in handling this case may have cause raise injustice the accused. It is so with the pre-trail case approach or management by both the prosecuting and defence counsels or whoever had handled this case. It shows that the Crown just realised or discovered at the pre-trail stage or after about 4 years that there was lack of evidence against the defendant on the charge of murder. And a new information of common assault was then filed in the court.

The accused had pleaded guilty and convicted on the misdemeanor charge or lesser offence. Noting and take into account the period he already spent in custody alleged offence but nollie prosequi by DPP, that should also be sufficient for the serving for this sentence. He is to be released at the raising of the court.

Orders of the Court

1. The defendant is sentenced for one-year imprisonment.
2. Period in custody is taken as sufficient for the serving for this sentence
3. The defendant be released from the custody at the raising of the court.
4. No further orders

THE COURT
Justice Leonard R Maina
Puisne Judge