Saukoroa v R [1983] SBCA 2; [1983] SILR 275 (9 December 1983)

[1983] SILR 275

IN THE SOLOMON ISLANDS COURT OF APPEAL

Criminal Appeal Case No.1 of 1983

SAUKOROA

v

R.

Solomon Islands Court of Appeal
(Kelly V.P. Kapi and Jones JJA)
Criminal Appeal Case No.1 of 1983

9th December 1983

Criminal - sentence - appeal – appellant’s version of facts not taken into account - s. 219 Penal Code.

Facts:

The appellant, a man of good character was involved in an incident after drinking. The appellant inflicted serious wounds on another man. He pleaded guilty to doing grievous harm contrary to section 219 of the Penal Code and was sentenced to four years imprisonment. On appeal against sentence:

Held:

There was no indication that, in reaching the sentence, the trial judge took into account the version of the facts given by the appellant in his cautioned statement. As this was a salient feature the court could review the sentence. Taking all features into account the proper sentence was three years.
Appeal allowed.

Cases referred to

Skinner -v- The King (1913) 16 CLR 336

For Appellant: K. Brown
For Respondent: F. Kabui, Attorney General.

Kelly VP delivered the Judgment of the Court: The appellant was convicted in the High Court of the offence of grievous harm, contrary to s. 219 of the Penal Code and sentenced to imprison-ment for four years. Pursuant to leave granted, he now appeals against that sentence.

As at the date of the offence, 25th December 1982, the appellant was 42 years of age and was a registered nurse employed at Lata Hospital. On the day in question the appellant had attended a Christmas party from about 9 a.m. to about 6 p.m. and had become somewhat intoxicated. After leaving the party. the appellant became involved in an argument with Jeremiah Loba and some time later there was a further argument in which both the appellant and Loba was involved. Police arrived and the appellant was taken to the police station. As a result of this incident he was subsequently convicted of affray.

It appears that the appellant was not detained at the police station as at about 8.30 p.m. he was seen by two police officers going in the direction of Loba’s house, armed with a bush knife. The police took the bush knife and warned the appellant who then went home. Between 10.30 p.m. and 11 p.m. the appellant left his house to go to work at the hospital. He took with him a pineapple and a stainless steel knife about 7 or 8 inches long with which to peel the pineapple. While on his way to the hospital the appellant encountered Loba and the two men walked together in what was said to be a friendly way.

According to the version of the facts presented to the Court by the prosecutor the appellant then suddenly pulled out the knife from the pocket of his trousers, showed it to Loba and then put the knife back in his pocket. The two men continued walking and the appellant then again took the knife from his pocket and tried to strike Loba with it. Loba jumped away and the appellant again tried to strike him. Two blows were struck, one on the left arm and one on the left side of the body, whilst a third blow missed.

The version of events given by the appellant to the police in a statement taken on 27th December and which was tendered by the prosecutor differs somewhat from that which he had outlined to the Court. In that statement the appellant said that when he was walking to the hospital he saw Loba with two other persons. Loba moved close to him and the other two came slowly behind. The appellant said that he had in mind that Loba might want to attack him again so he warned Loba that he must not fight and if they did he (the appellant) would fight them with his knife which he took from his trousers and showed to Loba. According to the appellant Loba then said "Any time" then jumped, away from him and kicked him on the testicles. The appellant said Loba was dancing around him in a way to fight him; he drew out the knife and showed it to Loba who moved closer to him. The appellant said he held the knife in the position to stab and tried to defend himself. He made three attempts to stab Loba but missed. When Loba moved close to attack him he thrust the knife at him and struck him under the left arm and on the left side of the body. The appellant said he had no intention to stab Loba but intended to make him afraid.

Loba received treatment at the hospital for two stab wounds, one a superficial cut 1/2cm long on the left arm above the elbow and the other a 2 to 2 ½ cm would on the left side at approximately the level of the ninth and tenth ribs. The wound had penetrated the abdomen and two inches of momentum protruded from it and a pneumothorax was diagnosed. The material before the Court showed that Loba was expected to make a full recovery and no have no lasting defect or disability.

The appellant was legally represented at the hearing and pleaded guilty. Comprehensive submissions on mitigation were made on his behalf, in the course of which the matters raised by the notice of appeal were placed before the Court. On sentencing the appellant the learned sentencing judge summarised the facts in accordance with the version given by the prosecutor. The learned judge went on to observe “It is a great credit to the prompt and efficient medical attention of Dr Fay at Lata Hospital that the victim is alive today”. It was submitted on behalf of the appellant that the material before the Court did not indicate that the "victim would or even might have died had he not received the medical attention which he did. However, in view of the nature of the major wound the observation by the learned judge was one which he could fairly have made.

The learned judge referred to the previous good record of the appellant, his family circumstances and his co-operation with the police and His Lordship accepted that the remorse shown by the appellant was genuine. However, the learned judge then went on to say that he regarded this as a most serious case in view of the warnings which the Court had given time and again about the use of knives in fights and possession of knives after and during drinking. After stating that he did not consider he would be doing his duty if he did not make it clear to everyone in Solomon Islands that behaviour such as this, committed by anyone, including senior members of the community, would result in substantial terms of imprisonment, the learned judge then imposed a sentence of imprisonment for four years.

It would appear from the manner in which the learned judge dealt with the facts that he did not have regard to the version of events given by the appellant in his statement to the police. That version, if accepted, whilst in no way excusing the appellant from criminal responsibility for his acts or providing any reason for not accepting his plea of guilty, was capable of providing a basis of taking a somewhat less severe view on the question of punishment than might be taken on the version presented by the prosecutor. The version given by the appellant was contained in a statement tendered by the prosecutor, it was credible and it was one to which due weight should properly have been given in imposing sentence. In apparently not having regard to the appellant’s version, so far as can be gleaned from his sentencing remarks, we are of the opinion that the learned judge overlooked a salient feature of the material before him so that "it is open to this Court to review the sentence. (Skinner v.The King (1913) 16 CLR 336 at pp. 339, 340).

This is undoubtedly a serious case warranting a substantial term of imprisonment, particularly in view of the warnings given by the Court regarding the use of knives to which the learned judge referred. The previous good character borne by the appellant, his family circumstances and his remorse, an indication of which might be thought to be his plea of guilt, are all matters properly to be taken into account. There was only one comparable sentence, to which the Court was referred, that of John Maneoru in 1978 where a sentence of three years imprisonment for this offence was upheld by the Fiji Court of Appeal. However, standing alone as it does, thus really affords little assistance in the present case.

Taking all these matters into account and having regard to the whole of the material before the Court, including the version of events given by the appellant in his statement to the police, we are of the opinion that the sentence imposed was manifestly excessive and that the sentence which should be imposed is imprisonment for three years.

The order of the Court will therefore be that the appeal is allowed, the sentence is set aside and in lieu thereof a sentence of imprisonment for three years is imposed.