Ufa v Regina [2006] SBCA 15; CA-CRAC 023 of 2006 (25 October 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands.
COURT FILE NUMBER:	Criminal Appeal No. 23 of 2006
DATE OF HEARING:	Friday 20th October 2006
DATE OF JUDGMENT:	Wednesday 25th October 2006
THE COURT:	Lord Slynn of Hadley P, McPherson JA Morris JA.
PARTIES:	UFA -V- REGINA
ADVOCATES: Appellant: Respondent:	H Barkley S Lawrence
KEY WORDS:
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:	Allowed
PAGES:	1-5

JUDGMENT OF THE COURT

On 27 or 28 March 2005 the appellant quarrelled with his wife at their home at Nagolau Village, Isabel Province, in the course of which he assaulted his wife. Mr Ernest Maneare saw this and went to the accused to try to persuade him not further to assault his wife. The appellant turned and punched Mr Maneara on the head causing him to fall to the ground. Then he kicked his neck. Mr Maneare suffered bleeding from his mouth and nose and was taken to Tataba Clinic where he stayed for a few days. On 30th March 2005 he still had bleeding from the mouth and nose. The appellant was charged with attempted murder. Subsequently Mr Maneare was referred to Buala hospital where he died on 17th April 2005 when the charge was changed to murder.

On 13 September 2006 the charge of murder was withdrawn and a charge of assault causing actual bodily harm contrary to section 245 of the Penal Code was substituted, since the Prosecution were not satisfied that they could establish the causal link between the assault and the death. The Appellant pleaded guilty and was sentenced to 13 months imprisonment, the Court ordering that the four months spent in custody be taken into account.

The learned Chief Justice found that this was "an unprovoked attack on an innocent and harmless man" with whom the accused had not had any conflict and who was trying to help in a domestic quarrel. The Judge found this – particularly since once he had knocked the victim down he continued to kick his neck, both head and neck being vulnerable parts of the body – "a serious and senseless assault", "a vicious attack", falling within the upper range of offences.

In deciding on sentence the Judge gave credit for the fact that the appellant regretted his action, which he recognised to have been wrong, and for the fact that he pleaded guilty. He found that the fact that the appellant was drunk aggravated rather than excused the assault. He initially considered 15 months to be appropriate but reduced it to 13 months because of the mitigation.

Mr Lawrence in an able submission has put forward seven grounds of appeal. Some can be dealt with briefly. In the opinion of this Court the learned Judge was entitled to say that alcohol was an aggravating factor in the circumstances of this case. Delay in the progression of a murder charge to trial may often be a relevant mitigating factor. But the prosecution were entitled on the facts to regard this is as murder charge and when they accepted that their evidence was insufficient they withdrew the murder charge. Moreover the Judge ordered the four months spent in custody to be taken into account. The assault was clearly serious but it does not seem to this Court on the face of it that this was in the highest range of assault causing actual bodily harm. A sentence of 13 months imposed by the Judge in itself reflects that fact since the maximum penalty is 5 years imprisonment.

There are, however, matters which have caused the Court more concern. In the first place, a medical report was tendered. The appellant says that the Court should not have admitted it, alternatively that the Judge should have ignored it as being irrelevant. It is, however, not surprising that there was a medical report; it would have been surprising if there had not been one and the Judge was right to admit it as such.

The statement of facts accept that at the time of assault the victim bled from nose and mouth "as a result of what the accused had done to him". The statement of facts accepts that having been admitted to the clinic and left it to go home, he "continued to experience the bleeding from nose and mouth," and returned to the clinic. He was then admitted to Buala hospital on 9 April. It is thus agreed that he "continued" to experience the bleeding. This can only fairly be read as meaning that he continued bleeding from nose and mouth "as a result of" what had happened earlier.

The Medical Report appears to be dated 17th May – ie. 17/5/05 whereas he died on 17/4/05. The Report is in fact a brief history which recites that 3 days after the assault, the started complaining of neck pain, headache, fever and bleeding nose. He was given large doses of antibiotics. The Report does not say that the doctor saw the victim alive between 9 and 17 April.

The second part of the report refers to the x-rays which were not of high quality ("more information may have been missed e.g. fractures of the skull") and an external examination of the body when a scar in the forehead "would be estimated to be from a wound sustain about two weeks ago". There were no other scars, cuts or bruises. The lack of medical facilities and experience meant that there could be no post-mortein. The doctor’s view was that "it is very difficult to establish that the illness was due to the bashing he received." This situation resulted obviously, as the Doctor stressed, in very unsatisfactory evidence and the learned Judge had a difficult task.

We agree with the appellant’s counsel that on the evidence, and following the withdrawal of the murder charge, the death must be left out of account when the sentence is considered. Since the doctor was of the opinion "it is very difficult to establish that cause of illness or death is due to the bashing he received", the illness too, which led to his going to hospital on 9 April, has to be disregarded. Common sense might suggest that the neck pain, headache and bleeding which occurred three days after the brawl may, or must, have been due to the assault but we consider on the doctor’s evidence that that too has to be left out of account. It is possible, even though the doctor did not say so, that the neck pain, headache and bleeding which occurred three days after the assault were linked to the condition when he came to hospital on 9 April and so, as the latter cannot be said to have been caused by the assault, so the former cannot be said to have been caused by the assault.

The appellant also objects to the statement by the Judge "you can count yourself very fortunate that the charge of murder has been withdrawn because local medical facilities and expertise were inadequate to carry out more specific and detailed examination as to the cause of death". Although we consider that this is to be read as meaning that he was lucky not to have to face a murder trial because medical evidence was not available, rather than that the Judge had formed the view that the appellant have or may have caused the death and "avoided responsibility for the death due to lack of a more detailed medical examination", the phrase is open to the other interpretation.

In all the circumstances particularly in the light of the medical opinion and the mitigating factors relied on other than the alcohol we consider that a sentence of 13 months imprisonment is not justified. It was still an assault on someone who was trying to help and that is to be deplored. It was made worse by the kicking of the neck after the punching of the head. But taking into account all the matters and the Court decisions relied on by Mr Lawrence illustrating the range of sentences adopted, we set aside the sentence of 13 months and substitute a sentence of 8 months. Like the Judge we order that the period spent in custody (4 months) be taken into account. The appeal to that extent is allowed.

Lord Slynn of Hadley P
McPherson JA
Morris JA