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R v Levi [2025] SBHC 69; HCSI-CRC 612 of 2015 (6 May 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 612 of 2015

REX

V

RICHARD LEVI

Date of Submission: 24 February 2025
Date of Sentence: 6 May 2025

Mrs Waisanau for the Crown
Mr Tinoni for the Defendant

SENTENCING AFTER PLEA OF GUILTY

Faukona; DCJ
Introduction.

1. The defendant, Mr. Richard Levi was charged with an offence of “acts intended to cause grievous harm”, contrary to section 224 (a) and as read with section 21 (c) of the Penal code. By reference to S. 21 (c) of the Penal Code, this accused is charged for aiding or abetting the principle who had been dealt with. However, the law in this section treated both alike in terms of charge and sentence.
2. The maximum penalty for the offence under S. 224 in terms of charge and sentence is life imprisonment.
3. The incident alleged to have occurred on 4^th January 2015 at Nangali village, East Central Guadalcanal, it occurred at night time around 7 pm.
4. On 16 May 2024, the defendant plead guilty to further amended charge.

Summary of agreed facts.

5. On 4^th of January 2015 the defendant Richard Levi and Selwyn Namo were drinking alcohol at Nangali village, East Central Guadalcanal, Guadalcanal Province.
6. That the defendant together with Selwyn Namo were drunk and were swearing at women and children in their village, using the like words by saying, they will cut them with a knife and caused damages to their properties.
7. On the same evening at around 7 pm the victim accompanied some group of individuals and took a detour but first he went to Seningelea’s kitchen to light his cigarette.
8. When the victim saw Richard, he called out to him because he is his brother in law. The defendant then questioned the victim if he had followed the group of individuals, to which the victim replied saying no. At that point, the defendant accused the victim of lying raised his bush knife in his right hand and cut the victim with.
9. The victim then leaned backward and the bush knife landed on his arm cutting it. That was when the victim took the knife out from the defendant and pushed him away. The attack resulted in the cuts on the left upper arm of the victim.
10. The victim was taken to Virani clinic on the same night then transported via out-board motor and canoe to Good Samaritan Hospital, then to the National Referral Hospital where he was admitted.

Starting Point.

11. The charge under S. 224 (a) was a felony and carries the maximum penalty of life imprisonment. Before 2015 when this offence was committed, there is no fix starting point that appears clear contrast set by the Court of Appeal. Like in the case of Bara V R^[1] where the Court of Appeal set sentencing guidelines by appropriating that a sentencing judge should identify a starting point then adjustment taken into account of facts which make the offending serious (aggravating factors) and then consider mitigating factors that may suggest the sentence is too harsh.
12. However, in the absence of such I make reference to the case of R v Bitiai^[2], which the Court of Appeal stated that, a nominal head sentence of at least 6 years was called for. Then there would be reduction for mitigating factors and then some moderations.
13. At some point a sentencing guideline should be structured to uphold one universal approach. From the case itself it would appear the nominal sentence should probably mean the head sentence after adjustment of aggravating factors, that is not certain. However, as it may seem the nominal sentence is subject to reduction after considering the mitigating factors. That could be right because in Dami’s case, in my opinion, the lower end of sentence should be higher than 4 years. It means at a lower end a sentence should be more than 4 years and upward.

Aggravating Factor.

14. The aggravating factors in this case are, that the victim suffered an injury on his left upper arm. The Doctor’s report concluded he had an open fracture to left Clavide. It is a penetrating injury to the base of left side of neck; cutting mostly muscles but no major vessels. The cut to left upper limb is with limited range of motion.
15. A surgery and suturing were done to the wound and several treatments were administered to curb and treat the wound.
16. The Defendant was overwhelmed with anger and alcohol hence attacked the victim with a long bush knife. He used a lethal weapon, being a bush knife. By resorting to such is serious and dangerous in particular when the complainant was defenceless.
17. The offence took place at night with total darkness. The complainant was in a kitchen lighting his cigarette when the defendant attacked him with the knife. The complainant may not have expected that the defendant would attacked him. At that time as well, the defendant was under the influence of alcohol. There is no excuse or defence in law that the he would rely on.

Mitigating factors.

18. The mitigating factors I consider in this case are; firstly, that the offending was not life threatening. No other permanent effects experienced by the victim after the incident, the victim’s life is normal even at this point in time.
19. By accepting that, would mean the gravity of the injury does not necessary measured of the aftermath of the incident. The circumstances must be measured by the gravity of the offence and the facts surrounding the offending. For instance, the motive of the attack, the use of the lethal weapon, influence by alcohol, unprovoked and the more. In my opinion those circumstances rendered the committal of the offence serious in nature.
20. I also consider that the defendant pleads guilty to the charge. That definitely serves the court time and reduces expenses for all parties. It also manifest that the defendant is remorseful and sorry for the unlawful act he did. Pleading guilty also shows the defendant acknowledges any punishment the court may impose.
21. Further the defendant is the first offender and had been cooperated with Police during investigations. However, though first offender it ought to be considered in align with the case of Millbery V R^[3], which the court stated, although good character should not be ignored, it does not justify substantial reduction.
22. I do not think the defendant is a good candidate for rehabilitation. He had breached his bail condition granted on 12^th October 2018. However, he was eventually brought to court on 7^th May 2024. On 15^th May 2024 he made his plea.
23. For the early part of delay, I noted the defendant was kept in custody for 3 years and 6 days. That delay was caused by official administration which I will consider in this case. The first delay noted was from 6^th October 2015 (the date of PI) to 3rd March 2017 (the date of filing the first information. This delay was caused by the office of DPP. The case was first mention in the High Court on 31^st March 2017. On 12^th May 2017 the defendant entered a plea of not guilty to the charge of attempt murder. The trial was never set and conducted until an amended information was filed on 30^th October 2017.
24. On 11^th December 2017 the defendant entered a plea of not guilty to the amended charge under S. 224(a) of the Penal Code. Thereafter there was no trial conducted until the defendant was bailed on 12^th October 2018.
25. In considering the right sentence to impose, I seek the assistance of the case law authorities first. The first case is R v Ben Bitiai^[4]. The prisoner in that case was charged for the same offence under S. 224 of the Penal Code. At paragraph (1), page 5, the Court of Appeal stated, “A rational head sentence of at least 6 years was called for there would be reduction for mitigating factors and some moderations.
26. In that case the Court of Appeal stated by quoting a paragraph from Koda’s case at page 3, paragraph 6.
27. The very important point mention in the first sentence is that Dami’s case established that the bottom of the range of such offences must be considerably high than 4 years. The second significant thing stated in Kada’s case is that in such case the court must consider the extent of the injury and the motive of the offender.
28. However, in the Kada case, the Court of Appeal sentenced him for a total of eleven years. In the Bitiai case the Court of appeal set aside the High Court sentence and sentenced the defendant for 4 years and 9 months.
29. I noted the co-accused was sentenced to 4 years on 16^th February 2018. That conclusion was reached without any proper sentencing structure, the court was merely considering the aggravating factors and the mitigating factors then 4 years was concluded.
30. In this case the motive of the offender is one of alcoholic base inducing the defendant to swear at the women and the children in the village. He said he would cut anyone with a knife and caused damages to the properties.
31. Because of the Defendant’s aggressiveness and being armed with a knife people were running away from him. Upon seeing the victim in the kitchen, he accused him as one of those who escaped. The victim denied so the defendant argued with him and then attacked him.
32. With that level of violence emerging from his behaviour and the words he said attributed to his desired to harm anyone. That was his sole intention. No reason for such was alluded but there could have been. In a rural community such behaviour arises from a pre-meditation, something the defendant foreseen to be done and it was done by him.
33. In relation to the extent of the injury the victim had suffered a penetrating injury from left middle clavide extended back to the base of the left side of the neck. The wound was an open fracture, the cutting was mostly muscles but no major vessels.
34. The extent of the injury may not be life threatening but the scar is permanent and remains fore ever. It is serious but not very serious.
35. Having considered the facts and the circumstance surrounding the committal of the offence, with the assistance from the Bitiai case, I set 6 ½ years as the nominal sentence after considering the aggravating factors.
36. When taking into account of all the mitigating factors I reduce the sentence by 1½years, making a balance of 4 years. I further deduct 3 years and 6 days for pre-sentence custody leaving 11 months and 3 weeks to be served. I therefore sentence the defendant for 11 months and 3 weeks from date he was arrested and placed in custody.

Orders:

1. The defendant is guilty on own admission of the charge.
2. The defendant to serve 11 months and 3 weeks imprisonment.
3. This sentence will start to run from the date the defendant is arrested and placed in custody.
4. A warrant of arrest be issued for the defendant’s arrested and be placed in custody.

The Court.
Hon. R. Faukona.
DEPUTY CHIEF JUSTICE.

^[1] [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2018).
^[2] [2010] SBCA 3: CA-CRAC 15 of 2009 (26 March 2010).
^[3] [2002] EWCA Crim 289 ( 9 December 2002)
^[4] Ibid (4).