High Court of Solomon Islands

13. The Defendant has raised a number of mitigating features. The first is his plea which came at the earliest opportunity being his first appearance after the information was laid. The plea not only saves the Court resources from having a trial but more importantly saves the victim from having to give evidence and relive the events of the night. His plea is able to be taken as an indication of acceptance of the offending and to that extent of remorse.
14. The second mitigating feature is his previous good character and his conduct since the offending. The Court was told by Counsel that three people had provided references for him, the principal at the school where he teaches, a colleague from the school and a community leader. While those were not presented to the Court I accept that apart from the offending on this occasion he is of good character. He works with children as a teacher helping to shape them for the future.
15. Thirdly the Defence says that he has had a serious charge hanging over his head for more than five years. Counsel for the Crown quite fairly advised that the case was set down for trial on several occasions as a reserve trial but had not been reached. I accept therefore that the delay was not of the Defendant’s making but as a result of delays in the Justice system.

Other matters raised in support of the Defendant

16. Counsel for the Defendant says that the Defendant is a passive person but reacted to what he believed his wife was up to. I record that there is no evidence that the Victim was involved in a romantic or sexual way with the wife of the Defendant. Counsel says that the Defendant has made a vast contribution to the community teaching his students.
17. Counsel says that the Defendant is now separated from his wife but continues to support his children. He says the restrictions imposed on him while on bail contributed to the breakdown of his marriage.
18. Regarding the offending Counsel says that the attack was not persistent but simply a single blow, he said it was not of full force and was out of jealousy and to make those at the canteen leave. While there was a single blow it was directed at the head. It was done after the Defendant had gone from the house to the garden shed to collect the weapon which he then used it on a sleeping person with no warning. I therefore reject the explanation that the offending was to persuade others to leave. It was a deliberate act injuring a person who was not able to defendant himself. He used a lethal weapon directed at the head of the Victim.

Discussion

19. Both counsel submitted that the tariff for an offence against section 226 was 1 – 4 years’ imprisonment. The Crown referred to R v Olofia [2011] SBHC 83 where the defendant in an unprovoked attack stabbed his victim in the neck while under the influence of alcohol. The Court took a starting point of 3 years and reduced the sentence to two years’ imprisonment to take account of mitigating factors. In Regina v Bosavane [2011] SBHC 7 the defendant stabbed his victim causing grievous harm. There was no premeditation he had pleaded guilty. He was sentenced to 3 years’ imprisonment. The Crown also referred to Regina v Banga [2014] SBHC 44 where an 18-year old had reacted to being treated badly by his father and caused grievous harm to his father using a knife. He pleaded guilty and was sentenced to 3 years’ imprisonment. The Crown also referred to R v Tongana and Ramo CRC No 594 of 2004 where two years’ imprisonment was imposed for an unplanned and unpremeditated attack which resulted in grievous harm. The facts of that case are quite removed from the present case and I put it to one side. Finally, the Crown referred to R v Chene CRAC No 313 where the High Court rejected an appeal against sentence from the Magistrates’ Court. Three and a half years’ imprisonment was confirmed for the Appellant who had attacked his ex-girlfriend out of jealousy inflicting severe injuries to her scalp, hand, shoulder arm and neck. She was hospitalized for two weeks and had to undergo surgery.
20. For the Defendant reliance was placed on Regina v Batalau’ia [2016] SBHC 29 where a more serious injury was inflicted on the victim, however it was the result of extreme provocation where the Victim made allegations of sorcery which had caused friction between the families of the Defendant and the Victim. The Chief Justice in that case observed that the sentences imposed for causing grievous harm generally fell between 18 months and 5 years but noted that where there are clear aggravating features sentences will be noticeably higher. In that case the Defendant had been in custody for nearly three years. The Court imposed a sentence of 4 years’ imprisonment following a guilty plea once the charge was reduced from attempted murder. The victim in that case lost his arm as a result of the blow with a knife.
21. In addition to the cases mention by counsel I must balance what the Court of Appeal has recently said in Maelafia v R [2021] SBCA 8, beginning at paragraph [17]: “
    • 17.“The offence for which this appellant was convicted and sentenced falls under section 226 of the Penal Code which prov-
    • Gri harm 226. Any person who fully dlly does goes grievous harm to another is guilty of a felony, and shall be liable to imprisonment for fourteen years.
    • 18. This is in contrast to section 229 which provides that any person who unlawfully wounds another is guilty of a misdemeanour and shall be liable to imprisonment for five years. It is also regarded as less serious than the offence under section 224 of the Penal Code which provides for a maximum penalty of life for grievous bodily harm inflicted with intent.
    • 19. The offence involved the infliction of several knife wounds, two of which required surgery. In seriousness, it falls within the more serious incidents of the offence. Had the grievous harm been even slightly more serious, or the surgeons less skilled, the medical assistance more remote, death may well have resulted from the actions of the appellant.
    • 20. This was a crime perpetrated on an estranged spouse apparently as a result of the discovery that the spouse had moved on. There is a suggestion of family reconciliation, a lack of previous convictions and an early guilty plea to the present offence.
    • 21. We consider that a suitable starting point for an offence of this nature is that of ten years’ imprisonment. We would take into account the significance of a plea of guilty at an early opportunity thus saving the victim of further distress. We cannot otherwise find any substantial mitigation save the lack of previous convictions. A weapon was used, which we regard as aggravating but not such as to warrant any substantial increase in penalty. It may have been different were there information to indicate that the offender was armed in advance but it appears that is not the case here.
    • 22.Giving due credit for an early guilty plea and the appellant’s previous good character would reduce the head sentence of ten years down to seven years, which is the effective sentence imposed by the lower court when it failed to give any credit for pre-sentence custody. We do not, however, regard it as just to increase the sentence in this particular case for two reasons.”
22. The passage is set out in detail as there are a number of matters of assistance provided by the Court of Appeal. The decision reminds the Court of the importance of differentiating between sentences imposed under sections 229, 226 and 224 of the Penal Code. It provides guidance in fixing a starting point. It reminds the Court of the discounts available for guilty pleas and previous good character and the reasons for that discount. Finally, it reminds the Court of the importance of taking into account credit for pre-sentence custody.

Starting point

23. In fixing a starting point I note the starting point fixed in Maelafia. That case involved the infliction of 6 injuries inflicted, although 4 were regarded as superficial. The two remaining injuries were serious and the Court noted that if the injuries were a little more serious or if the surgeons were less skilled, death may well have resulted. The Court confirmed that the use of the weapon was an aggravating factor but did not warrant a substantial increase in penalty. The Court did say however that if there was information to indicate the offender was armed in advance the situation may have been different.
24. In the present case there was a single blow with a bush knife. The injuries were not so serious as in Maelafia but the fact of directing the blow with the knife at the head of the Victim indicates a level of intention close to that required for section 224. It is not known what the outcome might have been if the Victim had not had his hand on his head. The blow was sufficient to cut and fracture the index finger and cause the damage to the back of the head described by the doctor. I note that both cases required surgery. A stay in hospital was of 10 days was required in the present case. In Maelafia the length of stay is not known but in Chene’s case, it was for 14 days. In addition, the Defendant had gone to the garden shed to get the bush knife before going to the canteen. He was therefore armed in advance of the attack.
25. The cases referred to by counsel were indicative of a final sentence, reflecting the circumstances of each case. These included guilty pleas, in some cases, youth, in others a response to the actions of the Victim. For most of the cases, the starting point must have been in the range of 4 to 6 years.
26. In Regina v Kada [2008] SBCA 9 the Court of Appeal spoke of the desirability of Judges having a consistent approach to sentencing and identified principles to be applied when fixing a starting point. The Court said at paragraph [16]:
    • “16. 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.”
27. The Court accepts the submission that the extent of the injuries, though serious were not as serious as a number of others that have come before the Court. Examples of the more serious injuries are as set out in Maelafia and in Batalau’ia. In Maelafia the Court took a starting point of 10 years’ imprisonment and in Batalau’ia, although not expressed, the Court must have had in mind a starting point of around 7 years or more.
28. On the other hand, the Court of Appeal in Dani and Aidiana v Regina [2004] SBCA 16 imposed a sentence of four years’ imprisonment after a guilty plea in respect of a charge under section 226 of the Penal Code where a knife and a stone were thrown by relatively young offenders, albeit in the course of a burglary, but the injuries appear to be not so serious.

Effect of guilty plea

29. In Soni v Reginam [2013] SBCA 6 the Court of Appeal gave guidance on the extent of discount that may be considered to recognise the benefit of a guilty plea. This of course will vary in the circumstances of each case. In Soni the Court said, at paragraph [16] and [17]:
    • [16] “All the cases referred to above make particular mention that the effect a guilty plea should have on the sentencing decision. In each case emphasis has been put on the particular effect on the victim of having to give evidence at trial and the importance, where appropriate, of a reduction in the length of custodial sentence available from an early indication of a guilty plea. The starting points set out above assume a contested trial. In addition to sparing the victim the ordeal of giving evidence at the trial and possibly reliving the experience, a guilty plea also demonstrates that the offender appreciates how wrong his conduct was and regrets it.
    • [17] It is principally for these two reasons that the sentencing judge should consider an appropriate discount to the applicable sentence arrived at following the guidelines. Previous discussions as to the available discount for a guilty plea can be found in Qoloni v Regina [2005] SBHC 73; HCSI-CRC 076 of 2005 (21 June 2005),Gerea v Regina [2005] SBHC 34; HCSI-CRAC 243 of 2004 (4 February 2005) and Talifai v Regina [2011] SBHC 16; HCSI-CRC 85 of 2010 (30 March 2011). It is worth noting that the reference to a maximum discount of 25% referred to from Australian authorities refers only to the utilitarian value of a guilty plea, whereas the English authorities on the same point, particularly in dealing with sexual offences, stress the value of a guilty plea to the victim. A maximum discount of one third may well be considered appropriate in some circumstances.”
30. In the present case the Court accepts that the plea was entered at the earliest opportunity, resulting from the Crown reviewing the evidence prior to trial and changing the charge preferred against the Defendant to one of grievous harm.
31. The plea saved the victim the stress of having to give evidence of events from 2016. In the present case the Court accepts that the plea reflects an acceptance by the Defendant of how wrong his conduct was and that he regrets it.

Delay

32. It the present case the delay in finalising the case has been more than 5 years. It is not clear why the Defendant faced a charge of attempted murder for 5 years before a decision was made that section 226 was the correct charge to be preferred. That situation no doubt affected the delay in finalising this case. For the purposes of sentencing it is noted that the delay was not of the Defendant’s making as the present charge was not available for to plead to until 4 June 2021. The delays had come about from the case having been previously listed for trial but as a reserved case and on those occasions it did not proceed as the principal trial listed proceeded.
33. Counsel for the Defendant reviewed the authorities dealing with delay. Section 10 of the Constitution provides:
    • 10.-(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
34. Counsel for the Defendant has submitted that five years from charge to being able to plead could not be described as a reasonable. The Court agrees. The authorities provide varying discounts for delays but where the delay is not of the Defendant’s making significant discounts have been provided to recognise that there are stresses in having a serious charge having over the head of a Defendant. While on bail there are restrictions on the life of someone who is awaiting trial. The Courts have recognised this situation. Where a Defendant is remanded in custody that period of detention can be taken into account in an eventual sentence. For the reasons set out in paragraph 37 below, the Defendant will get credit for the delay. He was in custody for 8 months of that five years. I therefore treat the period of delay while on bail as being a little over four years so far as credit is concerned.

Period in custody

35. I am advised by counsel that the Defendant was in custody from 29 April 2016 until 17 June 2016. He was then granted bail. He was arrested on an unrelated matter in November 2016 and then granted bail again on 2 June 2017. The allegation that led to his arrest in November 2016 was dealt with in the Magistrates’ Court and I am told he was acquitted. That time in custody is a little over 8 months. There is a question as to whether the period from November 2016 to June 2017 should be included in calculations as it was for a completely separate allegation. In the circumstances of this case however the Court proposes to regard the time in custody for this matter as being 8 months.
36. When calculating the effect of this period in custody the Court of Appeal has given helpful guidelines in Regina v Wesley [2005] SBCA 12 where the Court said:
    • “So far as the sentences themselves are concerned, it is important to note the effect of remissions under the Prisons Act. Usually, this will be irrelevant but, where an offender is being sentenced after having spent a substantial time in prison on remand, it is important to calculate the likely time in prison that would have been served had a sentence been imposed at the outset in order to make an appropriate allowance for the time served and ensure that the effect of the sentence will not be unduly harsh having regard to the time already spent in gaol.”
37. The Court regards the eight months in prison as being a substantial time. As the Defendant has spent more than one month in custody, section 114 of the Prisons Act prescribes a period of remission of one third of the sentence to for good behaviour. There is nothing to suggest to the Court that the Defendant would not have been entitled to a full one third remission. The Court will therefore regard the time spent on remand as equivalent to a 12-month sentence.

Good character

38. For the reasons set out in Maelafia due credit is to be given for his good character. The submissions regarding his continued good character have been set out when dealing with the lack of a need for specific deterrence in the circumstances of this case.

Conclusion

39. The starting point in the present case is taken as 5 and a half years’ imprisonment. This reflects the seriousness of the attack, the clear intention behind it and the aggravating features. The Court rejects the submission that the reason for the attack was to get people to leave the area in front of the canteen. The starting point reflects the fact that the injuries were less serious than some others that have come before the Court but must reflect the intention demonstrated by the Defendant in arming himself with a bush knife and attacking a person from behind, that person being asleep at the time with his hand over the back of his head. The blow with a long bush knife was directed at the head of the Victim. The outcome for the Victim could have been very different bearing these matters in mind.
40. From the starting point a reduction of one year is made to reflect the time already spent in custody. A further eighteen months is deducted to reflect the guilty plea at the earliest opportunity and for his otherwise good character both before and after the offending.
41. From that point a further 12 months is deducted to reflect the delay in bringing this matter to a conclusion and the effect that such delay has had on the Defendant. Included in this further deduction are the remaining matters raised in mitigation.
42. The sentence of this Court is then one of 2 years’ imprisonment. The Court has been asked to consider suspending that sentence. Section 44(1) of the Penal Code permits the Court to suspend a sentence of imprisonment if the sentence otherwise to be imposed is 2 years’ imprisonment or less. However, section 44(2) provides:
    • “(2) The provisions of subsection (1) of this section shall not apply where the offence involved the use or the illegal possession of a weapon.”

The grievous harm caused by the Defendant involved the use of a weapon, being a long bush knife. Court therefore has no power to suspend the sentence.

Order of the Court

The Defendant is convicted and sentenced to two years’ imprisonment commencing today.

By the Court
Justice Howard Lawry PJ