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R v Kabolo [2020] SBHC 98; HCSI-CRC 284 of 2014 (28 October 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 284 of 2014

REGINA

V

TANA KABOLO

Date of Hearing: 27 October 2020
Date of Sentence: 28 October 2020

Sitting in Gizo: High Court Circuit

Rachel S Olutimayin for the Prosecution
Michael Holara for the Defendant

SENTENCE

Bird PJ:

1. The defendant was originally jointly charged with one count of murder contrary to section 200 of the Penal Code with his father Henly Kabolo and uncle Rueben Kabolo. The deceased was the defendant’s elder brother the late Hilton Kabolo. The offending occurred on the 23^rd November 2013.
2. Mr. Henly Kabolo, the father of the defendant and the deceased had been sentenced to 4 years imprisonment on a reduced charge of manslaughter. As he had been in remand for a substantial period of years, he was released at the rising of the court.
3. The other co-accused Reuben Kabolo had become deceased during the tenure of this case and the charge against him was withdrawn.
4. Upon vigorous negotiation between the prosecution and the defence, the charge against this defendant was further reduced to one count of common assault contrary to section 244 of the Penal Code (cap 26). The maximum sentence for such offending included an imprisonment term of 12 months.
5. On the 27^th October 2020, the defendant was discharged in respect of the murder charge after the filing of a nolle prosequi by the Director of Public Prosecution. The defendant was re- arraigned on the current information on the same date and he had entered a guilty plea.
6. The facts of your offending are that the deceased had been drinking since on or about the 20^th November 2013. The deceased was renowned for his bad drinking habits. Whilst under the influence of alcohol, he would accuse his wife for committing adultery.
7. On the 23^rd November 2013, the deceased had again accused his wife for committing adultery. His wife then reported the accusation to the deceased father. The father went to talk to the deceased and an argument ensured. There was a scuffle and the deceased was assaulted. You took part in the scuffle and slapped the deceased on his mouth. You also mistakenly stepped on the deceased belly while your wife was trying to pull you away. Fortunately, the step did not cause any injuries to the deceased.
8. The court had noted that your elder brother had died as a result of the scuffle discussed above.
9. It was submitted by the prosecution that there are three aggravating features in your offending. Firstly is the fact that the deceased is your elder brother. You slapped your brother during the scuffle. It would be disrespectful in our culture for you as a young brother to slap your elder brother.
10. The second aggravating feature is that you have the option just to speak to your elder brother instead of slapping him. You could have exercised restraint on that occasion and you did not.
11. Thirdly is that instead of assisting your brother to get up after he fell, you left him lying on the ground whilst your father assaulted him.
12. On your behalf, it was submitted that you are now 38 years. You are married with 3 children. You are providing the necessities of life to your family.
13. I also give you credit for your early guilty plea. This not only shows remorse but that you have also come to terms with your offending. In other words, you have taken responsibility of your actions.
14. You have no previous conviction. I commend you for living a crime face life for the most part of your life. I urge you to continue living a good and dignified life with your family. The incident for which you are charged is an unfortunate one for your family. Please learn from the particular circumstances of the case and try to be a peacemaker when such circumstances ever arise again in future.
15. I have noted that your deceased brother had a drinking problem and used to abuse his immediate family. Notwithstanding such circumstance, we must always show love and concern for them. Such attitude would be of assistance in such difficult family circumstances.
16. It is noted that there are too many family scuffle in the country. Such scuffles are normally, results from the use and abuse of alcohol. The court do not condone violence in the family circles and the sentence imposed must bring home that fact.
17. Personally, you must also learn from your actions and that the law does not tolerate violence in the family. The deceased was drank on that occasion. You could have done better if you were there just to control and keep the peace amongst your family members.
18. I have noted that you have spent about 9 months in pre-trial custody. I am also very concerned about the delay in dealing with your case. For various reasons this matter had been hanging over your need for almost seven years. I could have send you to prison for your offending but for the above circumstances.
19. In view of the above discussion. I hereby sentence you to 8 months imprisonment for common assault contrary to section 244 of the Penal Code (cap 26).

Orders of the court

1. The defendant is convicted on one count of common assault contrary to section 244 of the Penal Code (cap 26).
2. The defendant is sentenced to 8 months imprisonment.
3. Time spent in pre-trail custody is deducted from total sentence.
4. He is to be released at the rising of the court.

THE COURT
Hon. Justice Maelyn Bird
Puisne Judge