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R v Teekera [2021] SBHC 175; HCSI-CRC 103 of 2017 (24 July 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 103 of 2017

REGINA

V

MAMA TEEKERA, LEO MASUNU, JAMES STEPHEN, TAKOKA BAKAIA, ISHMAEL BAKAIA, JAMES KABIRI

Date of Hearing: 24 July 2021
Date of Sentence: 24 July 2021

Mr. A. Meioko for the Crown
Mr. A Bosa for the Defendants (Six Defendants)

Palmer CJ.

1. The defendants (six) have been found guilty after trial, of the offence of Acts Intended to Cause Grievous Harm, contrary to section 224(a) of the Penal Code (cap. 26) as read with section 21 of the Penal Code. This is an extremely serious charge. Its' seriousness is reflected in the maximum sentence of life imprisonment which can be imposed by the court in extreme cases, depending on the circumstances of each case and the presence of aggravating and mitigating features.
2. There are varying degrees under which those charged with this offence, the courts have dealt with and imposed varying sentences ranging from 3 – 9 years, depending on the seriousness of the facts of each case and level of culpability^[1]. Each case should be dealt with on its own merits and appropriate sentences imposed, for sentencing as often repeated is not a mathematical formula. However, cases of similar facts are often treated in a similar way and there is good basis for comparison of cases to be considered when making submissions for sentence.
3. I do not need to traverse again the details of the circumstances of offending in this case for these have been amply exposed and covered in the trial and the judgement of the court resulting in the conviction of these defendants and two being discharged and acquitted.
4. Similar cases, Regina v. Kada and Others^[2], R. v. Bitiai^[3], R. v. Sutafanabo^[4], R. v. Fasiadi^[5] and R. v. Paewaa^[6] have been referred to in which varying sentences have been imposed by the court.
5. In R. v. Kada and Others (ibid), at paragraph 16, the Court of Appeal gave some guidelines when dealing with offences under this section as follows:
   • "In dealing with an offence involving the infliction of personal injury, the two most important considerations in assessing the objective gravity of the offence must be the extent of the injury and the intention and motive of the offender. It is obvious both that the more serious the injury the greater will be the objective seriousness of the offence as also will be the case as the extent increases to which the offender appreciated that the injury would result or be likely to result. Without attempting to be comprehensive, an offence under s 224 will be likely (subject to mitigating features, both subjective and objective) to fall into the category of the worst class of case and hence attract the maximum sentence where the injury is permanent and seriously affects the victim’s enjoyment of life, (for example, paraplegia, brain damage or loss of a limb or sight) and the offender intended that injury or something like it to occur. Of course, where there is more than one victim, this is a very significant marker of increased objective seriousness."
6. The extent of the injury and the intentions and motive of the offender will reflect on the seriousness the court takes of the offending.
7. At paragraph 17, the court continued as follows:
   • "If the respondents had intended that the injuries actually caused here should be inflicted, they are so serious and that intention would be so wicked that life sentences could well have been appropriate. Indeed, it is almost inescapable that those who actually inflicted the injuries intended to cause very serious injuries indeed, if not death and the imposition of life sentences on those perpetrators would prima facie be entirely justified even if there had been only one victim. In a case of that kind, therefore, whatever might be the bottom of the range, the top of the range would be the maximum sentence of life imprisonment as provided by the Code. That there were two victims would make such a sentence almost inevitable."
8. The aggravating features in this case can be summarised as follows.
9. First, that the attack was done in a group, the victim was overpowered and beaten. He could not defend himself. He told the court in evidence that he tried to remonstrate with the defendants and explain to them his situation but they were not prepared to listen.
10. The attack was in the form of a retaliation and unjustified.
11. Thirdly, the use of a weapon by Leo Masunu to beat the victim with and causing serious injuries in particular on his head.
12. Fourthly, the attack was on a police officer who was in the course of carrying out his normal duties. He was singled out for this purpose. In the case of Daniel Fa’afunua v. Regina^[7] the Court pointed out at page 7, the role of police officers and the likely consequences of an unwarranted attack:
    • "Police Officers are representatives of the State in the administration of the rule of law and should be respected when they arrive at any scene of crime. They must be allowed to perform their duty in ensuring that peace and normality is restored whether it be in a public place or in a private home. They are mediators of peace, under strict duty and discipline, and are extensions of the arm of the People in so far as law and order is concerned. They have no personal agenda or interest to fulfil when attending a crime scene and therefore should never be treated with hostility. They are there to keep the peace and protect life, limb and property. They can only use such force as is reasonable to diffuse any volatile situation, to disarm an offender or to protect property. When attacked in the manner that the Appellant has done, they cannot retaliate, this is why it is so unfair and the courts take a very strong view against attacks against police officers. An immediate custodial sentence must be expected when any police officer is attacked. The length of sentence will depend on the existence of any aggravating features or the lack of it."
13. I note the attack was unwarranted and no consideration was given to that fact of his position. In other countries, police officers are armed and when attacked in such manner may use lethal force. In Solomon Islands, the most that they have would be a police baton to apprehend criminals or to protect themselves, others and property with. In such situations of an attack by a group of men, there is very little they can do to defend themselves with. The courts therefore are obliged in such circumstances to send out a clear message that this type of attack will result in a custodial sentence being imposed.
14. I note there is no remorse, a trial has been held and the defendants convicted.
15. In mitigation I note they are all first offenders, this is their first time to be in trouble with the law. Leo Masunu has another conviction but that occurred well after this incident and so for purposes of this case he will be given that benefit of being a first offender.
16. I note as well that apart from the use of the police baton by Leo Masunu, no other defendants used any weapon during the attack. The main attack consisted of kicking and hitting or punching. I take that into account.
17. The main mitigating factor in this case is the element of delay, of some five years and seven months. That is a long time to have to wait for one's trial. I take that into account in the sentence to be imposed.
18. Taking all the aggravating features into account in this case, the circumstances of offending and the severe attack on the victim and the injuries sustained, I am satisfied the starting point in this case is three and a half years.
19. Balancing that with the mitigating factors in particular the element of delay will reduce that further by half which brings the final sentence to one year and nine months.
20. For James and Ishmael, who were juveniles at that time, I will reduce the sentence further to 9 months each on account of that fact. You were young and can be easily led at such a young age and so the law provides that the court can take your youthfulness into account and impose an appropriate sentence. You did however allow yourself to be led into joining the others into the attack and so in the circumstances a custodial sentence will have to be imposed.
21. Finally, your lawyer has asked the court to suspend your sentences apart from Leo Masunu. I have thought carefully over this and will exercise the court's discretion in your favour given the fact that most of you will by now, especially after five years have lapsed, have moved on in life and getting you to serve your sentence now will cause unnecessary and further hardship upon your personal lives, homes and family. I will order accordingly that your sentences be suspended for one year. If you do not reoffend in the next twelve months then the sentences imposed will lapse. If however you re-offend then the sentences may be activated and you will be required to serve out those sentences. In other words for the next twelve months, you should be keeping the peace and be of good behaviour.
22. I also note that in Mama Teekera and Ishmael's case, there is evidence that you both changed your minds after the attack and sought to help the victim escape from the scene thereafter. I also take that into account in deciding to suspend your sentences.
23. I also note fortunately, that the victim has made quite good recovery after the vicious attack upon him.

Orders of the Court:

1. Impose sentences of imprisonment as follows:
   • (i) Leo Masunu, one year nine months;
   • (ii) Mama Te'ekera, one year nine months;
   • (iii) James Stephen, one year nine months;
   • (iv) Tatoka Bakaia, one year nine months;
   • (v) Ishmael Bakaia, 9 months; and
   • (vi) James Kabiri, 9 months;
2. For Leo Masunu, direct that the period spent in remand in custody is to be deducted from the total sentence.
3. Direct that except for Leo Masunu, all sentences are to be suspended for twelve months herewith.

The Court.

^[1] Blackstones Criminal Practice 1999 page 120: ".... Such offences vary very widely in culpability and circumstances".
^[2] [2008] SBCA 9; SICOA-CRAC 35 of 2007 (18 July 2008)
^[3] [2010] SBCA 3; SICOA-CRAC 15 of 2009 (26 March 2010)
^[4] [2012] SBHC 48
^[5] [2021] SBHC 26; HCSI-CRC 490 of 2020 (30 April 2021)
^[6] [2016] SBHC 86; HCSI-CRC 458 of 2014 (28 April 2016)
^[7] Criminal Appeal Case Number 296 of 2004 (10 September 2004)