Regina v Kada [2008] SBCA 9; CA-CRAC 35 of 2007 (18 July 2008)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanasalua J)
COURT FILE NUMBER:	Criminal Appeal No 35 of 2007 (On Appeal from High Court Criminal Case No 292 of 2007)
DATE OF HEARING:	10 July 2008
DATE OF JUDGMENT:	18th July 2008
THE COURT:	Palmer CJ, Goldsbrough, Adams JJA
PARTIES:	Regina Appellant -v- Kada & Others Respondents
ADVOCATES:
Appellant:	R.Christensen
Respondents:	K Anderson
KEY WORDS:
RESERVED:
ALLOWED:
PAGES:

JUDGMENT OF THE COURT

Introduction

1. On 14 October 2007 the respondents Kada and Lulumae each pleaded guilty to two charges under s 224 of the Penal Code of doing grievous harm to a person, intending to maim, disfigure, disable, or cause grievous harm and one charge of burglary at night under s 299 of the Code. Each offence carries a maximum term of life imprisonment. On the same day the Crown discontinued counts charging attempted murder and robbery. On 5 October 2007 the respondent Moon was convicted following trial of two charges of causing grievous harm with intent contrary to s 224, one charge each of burglary contrary to s 299, simple larceny contrary to section 261 (five years), and criminal trespass contrary to section 189 (one year). He was acquitted of two counts of attempted murder and one count of robbery.
   
2. On 26 October 2007 each of the Respondents were sentenced to concurrent terms of four years and six months imprisonment for the offences under s 224 and s 299. These sentences were backdated to the date on which they first entered custody. In addition, Moon was sentenced to concurrent sentences of five months imprisonment for the criminal trespass and simple larceny offences to be served concurrently with the other sentences. The Crown appeals against the sentences under s 224 upon the ground that they are manifestly inadequate. In addition the Crown contends, in respect of Moon, that the learned sentencing judge erred in fixing the date for the commencement of his sentences on 6 October 2006.
   

The facts

3. So far as Kada and Lulumae are concerned, a statement of agreed facts was tendered. The following is derived mostly from that statement. At about 2am on Sunday 26 February 2006, a group of young men including Kada, Lulumae, Moon, Bebeni Kabe, a person called Joe and others went to the compound of a dwelling house located in the Far East Enterprises premises in Honiara. Their intention was to break into the house to steal money. The ringleaders were Kada, Lulumae, Moon and Joe. A number of persons lived in the house, including Wei Lan Chan, Jessy Chan, Jenny Xia Chan and Peter Zheng.
   
4. Some of the young men were armed, including Kada, with a bush knife and Lulumae with a kitchen knife. The respondents all took part in planning the burglary and led the gang to the house. They climbed the compound wall and went to the front door, ignoring the barking of the dogs. Jessy Chan came out of the house to investigate. Joe raised his bush knife and struck him at the back of the neck, intending to cause him grievous harm and doing so, the knife severing Jessy’s spinal chord. With Jessy on the ground disabled by this cowardly and almost lethal blow, the other young men, including Kada, Lulumae and Moon then went into the house. They were confronted by Jenny Xia Chan and her husband Wei Lan Chan. A stone was thrown at Mrs Chan, striking her right arm. One of the young men attacked Mr Wei Lan Chan, stabbing him in the back, intending to cause him grievous harm, in fact doing so by severing his spinal chord at the level of the thoracic spine. Mr Chan fell to the floor and was ultimately taken to hospital. The gang then left the house taking electrical goods worth something over $13,000 which has not been recovered.
   
5. So far as Moon is concerned, the sentencing judge found that he was one of the gang who planned to break into the Chans’ house to steal money, that he entered the house after Jessy Chan was struck from behind by Joe and, as I infer from his Lordship’s judgment, was present when Mr Wei Lan Chan was attacked and stabbed.
   
6. The basis for their pleas, in the case of Kada and Lulumae, and the conviction in the case of Moon was that they were parties to an armed invasion of the Chans’ premises knowing that knives were being brought and adverting to the distinct possibility that they might be used (with the intention to maim, disfigure, disable or cause grievous harm to the intended victims) to cause grievous harm. Apart from the other evidence, including the pleas of guilty, this is made clear by the way in which they immediately took advantage of the opportunity to enter the premises presented by Joe’s vicious attack on Jessy Chan and continue their violent attack upon his parents.
   
7. In the result, Jessy Chan, who was then only 16 years of age, was rendered a quadriplegic and Wei Lan Chan, his father then aged 47, a paraplegic. Both need wheelchairs for the rest of their lives. Both will suffer continually from the effects of their injuries. Jessy Chan is paralysed below C6 on the right and T1 on the left (thus from the bottom of the neck) and Wei Lan Chan below T7 (the middle of the back). They will require constant care and medical attention for the rest of their lives and are at continual risk of dangerous, life threatening and painful infections. As the sentencing judge observed, their health, livelihood and future prospects in life were destroyed as the direct results of the respondents’ crimes and there have been devastating consequences for their families.
   

Subjective features

8. The sentencing judge accepted as mitigating factors that the respondents were young at the time of the offences: Lulumae was 16 years old; Kada 18 years old and Moon was 21. His Lordship noted that there was delay in disposal of their cases, that Kada and Lulumae pleaded guilty and that Moon got married and settled down after he committed the crimes. Although his Lordship did not specifically say so, it seems reasonable to assume that he gave some allowance for Kada’s and Lulumae’s pleas of guilty. Aside from those pleas, there was no evidence of any remorse or contrition expressed by any of the Respondents. Except for the remarks of the sentencing judge about Moon having "settled down" there was no evidence as to prospects of rehabilitation.
   

The sentencing hearing

9. The Crown prosecutor submitted to the sentencing judge that the appropriate sentence range was between four and nine years imprisonment, whilst it was submitted on behalf of the respondents the range was between four and six years imprisonment. A number of decisions in this and other jurisdictions was brought to the attention of the sentencing judge but none were capable of assisting in the derivation of a range of sentences for the offences under s 224. This was not because of any lack of assiduity on counsel’s part: in this Court, counsel for the parties candidly conceded that there were no cases capable of giving guidance on the existence of a possible range of sentences for offences under s 224, with the possible exception to which we now turn.
   
10. Counsel on both sides had referred the sentencing judge and this Court to R v Dani and Aidaiana [2004] SBCA 16 apparently for the purpose of supporting the contention that the bottom of the appropriate sentencing range for an offence under s 224 was four years’ imprisonment. That was an appeal in which this Court considered the propriety of sentences of five years imprisonment for inflicting grievous harm contrary to s 226 imposed concurrently with sentences of six years imprisonment for offences of burglary contrary to s 229(a). The householder was injured by a knife thrown by one of the appellants and a stone thrown by the other. It appears from the judgment at first instance that the victim’s injuries were, in the result, quite minor, being described by the treating doctor as "marginal injuries". He was treated with pain relief medication and "recovered well". Not surprisingly, the Court of Appeal concluded that "this crime taken as a burglary or a grievous bodily harm does not come close to the worst example of such cases..." In the result the appeals were allowed and the sentences reduced to four years to be served concurrently.
    
11. It will be seen that Dani was a case that dealt with an offence of considerably less gravity than an offence under s224(a). It did not require the element of the intentional infliction of injury and carried a maximum penalty of fourteen years imprisonment, not life imprisonment. Furthermore, in Dani there was but one victim and the injuries he suffered only just amounted to grievous harm whereas in the present case, the two victims suffered grievous harm of the most serious kind it is possible to envisage. It seems to us that, far from establishing the sentence at the bottom of the range for offences under s 224(a), Dani establishes that the bottom of the range for such offences must be considerably higher than four years.
    
12. The sentencing judge held that "the appropriate sentencing range for these two serious offences should be between 4 and 7 years in view of the mitigating factors made on behalf of the accused".
    

Discussion

13. In our respectful view, the sentencing judge’s assessment of the relevant sentencing range in respect of the offences under s 224 erred in law in two ways. First, it dealt with the offences of burglary and causing grievous harm with intent as though they were of the same order of seriousness. This is not so. As serious as burglary is, yet it remains an offence against property. The infliction of grievous harm with intent is a violent attack upon the person. They are in principle fundamentally different crimes, with the latter crime potentially of very much greater seriousness, as indeed is demonstrated by this very case. Secondly, there were no decisions in this jurisdiction or elsewhere that permitted any conclusion about an appropriate range of sentences for offences falling within s 224, let alone offences of such objective seriousness as the respondents committed here. It should be noted, in fairness, that his Lordship was placed in a difficult position by the approach taken by counsel both for the Crown and the defence, since both contended that there was a range of appropriate sentences, differing only as to its upper point.
    
14. There is no doubt that sentencing offenders is a difficult task. It is important that, whilst acknowledging the independent discretion that must be exercised by each judge (or magistrate) in each case, the courts must strive for coherence and similarity of outcome in similar cases. Due allowance must be made for differences, both in objective circumstances and subjective features. At the same time, each judge or magistrate needs to consider what their judicial colleagues have done in other cases with a view to attempting to achieve a collegiate and coherent system of sentencing. Otherwise, the goal of equal justice will be frustrated and the administration of criminal justice tarnished by the perception that it represents the purely personal opinions of individual judges and magistrates and offenders whose offences are similar and personal situations much the same will suffer sentences that differ for no apparent rational cause, whilst similar sentences may be imposed where offences vary significantly in gravity and subjective features are very different. Of course, uniformity is not the goal: the circumstances of particular offences more often than not will vary greatly, as will subjective factors. The object is to achieve a coherent system of sentencing in so far as that can be achieved, whilst recognising and respecting the obligation of each judicial officer to exercise his or her independent discretion and judgment. Accordingly, it is not only proper but desirable that judges and magistrates should be informed of sentences that have been imposed by their colleagues and bear those outcomes in mind in considering his or her particular case. Over time, a pattern will emerge as the number of cases increases and, hopefully, a range of sentences can be discerned. The presence of the pattern and demonstration of a range obviously requires more than just a few cases, although it is of course inevitable that, towards the beginning of this process, the number of cases will be small.
    
15. In this case, there were no broadly similar cases able to give guidance as to the existence of a possible range. The submissions of counsel otherwise were mistaken. It was necessary for the sentencing judge to consider the sentence from first principles, bearing in mind the maximum sentence applicable to cases in the worst category of case and the objective seriousness of the offence in respect of each victim, the level of responsibility of each offender and their subjective circumstances. The attempt to identify a "range" was therefore, in the circumstances, an unfortunate deflection from the true task in hand.
    

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. 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.

17 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.

18 So far as these respondents are concerned, however, the Crown did not submit that any of them had in fact struck the blows that injured the victims and proceeded on the basis that they did not actually intend to cause the grievous harm that resulted though, in the circumstances, they were aware that such harm was a real possibility. Nevertheless, the offences were very serious indeed and, in the Court’s opinion, not far short of the worst class of case. As the sentencing judge pointed out, not only were terrible permanent injuries intentionally inflicted, from which the victims will suffer greatly for the rest of their lives but they were inflicted in the course of a home invasion. The violence was not accidental. The knives were taken to the scene by the gang. Mr Jessy Chan, a mere child, was struck from behind in a vicious, brutal and cowardly attack which was completely unprovoked and committed to enable the gang to enter the house. Mr Wei Chan was then attacked inside his house. He also was struck in the back. These two crimes were committed separately on two individuals. The consequences were dire but well within the range of likelihood from knife blows in the centre of the back.

Principles applicable to Crown appeals

19 Section 21(1)(b) of the Court of Appeal Act provides that the Director of Public Prosecutions may appeal where in the opinion of the Director of Public Prosecutions the sentence imposed by the High Court is manifestly inadequate.

20 The Court will not interfere unless the sentence is manifestly inadequate, whether because the judge has acted on wrong principle or has clearly overlooked or misstated or misunderstood a salient feature of the evidence; where there is no patent error, the error will be implied where the sentence, at all events, could not have been imposed unless the discretion of the sentencing court had miscarried. This principle is so clear that it does not need authority to justify it but reference can be made, for example to Kaimanisi v R [1996] SBCA 2 and R v Su’umania [2005] SBCA 3.

Conclusion

21 The Court is of the opinion that the sentencing judge erred in law in specifying a sentence range that was applicable to the offences under appeal. There was no basis for doing so. Moreover, the range failed to reflect the seriousness of offences under s 224 and the seriousness of the particular offences in this case. The sentences imposed on the respondents failed by a substantial margin to reflect the criminality involved and demonstrated that his Lordship’s discretion miscarried. The sentencing judge gave the subjective features applicable to the respondents far too much weight, in the result failing to give adequate weight to the very grave objective seriousness of their offences. In a very real sense the victims have received life sentences of horrendous suffering.

22 So far as Kada and Moon are concerned, although it is true they were not mature adults, they were certainly not so young as to suppose that they did not fully understand the serious criminality involved in their planned crimes including, of course, the risk of causing very serious injuries to the victims if they were attacked with knives and the grave criminal character of causing those serious injuries. The argument that, because offenders are young men, they may be taken to have acted without fully understanding the seriousness of the offences has significance where the crime was impulsive or an immediate reaction to an unexpected event. It is far less significant for young men of eighteen or twenty where the crime is premeditated. Indeed, if in that situation it is thought that they might not appreciate the gravity of what they plan to do, that would rather suggest that general deterrence needs to be given greater emphasis in order to ensure that young men do appreciate the seriousness of criminal activity. There is nevertheless some basis for thinking that, especially so far as Lulumae is concerned, increasing maturity will lead to rehabilitation. It is also noted that the respondents had no prior offences.

23 Making every allowance for the pleas by Kado and Lulumae, the ages of each respondent and the prospects for rehabilitation, this Court has concluded that their sentences of four years and six months for the offences under s 224 were manifestly inadequate. It was submitted on behalf of the respondents that, even if the Court reached this conclusion, it would not allow the appeals but would decline to resentence the respondents in the exercise of its residual discretion to take no further action. The principal basis for this submission is that the respondents are due to be released on remission in the early part of next year. In our view, the sentences fall so far short of what was required in the circumstances, that there is no room for the Court to exercise its discretion as requested.

The burglary offence

24 The sentences for burglary under s 299 were not the subject of appeals. It is desirable, however, for the Court to observe that those sentences were within the sentencing judge’s discretion and demonstrate no appealable error. The Court wishes, however, to reiterate what was said in Dani about sentences for these offences since there are signs that insufficient attention has been paid to those remarks. In that judgment the Court said:

"Careful consideration of the authorities suggests an appropriate starting point to be six years imprisonment for the burglary and the offence relating to the injury caused to the householder in the course of that offence"

25. This was reduced "by one notch" because the offenders had not gone inside the premises and sentences of four years were imposed.
    
26. It follows that it must be a very exceptional case in which an offender who commits offences under s 299, s300 or s301 is not subjected to a term of imprisonment.
    

Outcome of the appeals

27. The appeals must therefore be allowed. In re-sentencing the respondents, the Court is mindful of the practice that is followed when a Crown appeal against an inadequate sentences is allowed and will impose sentences considerably less than those that would justifiably have been imposed at first instance. This practice reflects the exceptional nature of Crown appeals against sentence and the element of double jeopardy implicit where such an appeal is upheld.
    
28. In the ordinary course the sentences should be cumulative to some extent since there were two victims and the assaults upon them were committed on two distinct occasions, albeit in furtherance of the same criminal enterprise. Offenders must not be led to suppose that, once one serious offence is committed, it matters not whether any other serious offence is committed because it will attract no additional punishment. At the same time the principle of totality requires the court to ensure that the overall sentence is not more harsh than the total criminality of the offender deserves. In the result the Court considers that some slight accumulation only should be ordered, having regard to the considerations applicable where a Crown appeal is allowed. The sentences will be concurrent with the other sentences imposed on the respondents and which were not the subject of appeals.
    
29. So far as Lulumae is concerned, he was significantly younger than the other offenders and it may reasonably be inferred that he was, to some extent, influenced by them. He spent about one year and nine months in custody before sentence and this should be taken into account. He has, through his counsel, expressed remorse. We have mentioned that he pleaded guilty. We accept that there are grounds for hoping that Lulumae’s prospects of rehabilitation are good. The most significant issue in respect of sentencing Lulumae is that he was sixteen years of age at the time of the offence. In respect of juvenile offenders, especially first offenders, the public interest in rehabilitation will often lead to a substantial reduction in the emphasis given to the need for general deterrence. However, the objective seriousness of an offence cannot be ignored and must be reflected in the sentence, though in many cases it will not require the same sentence that would be meted out to an adult who committed the same offence. This will lead to a substantial reduction in the sentence that is otherwise appropriate even in a case of murder: see, for example, R v K [2006] SBHC 53, though that was, in a number of ways, a most unusual case – the offender was only fourteen at the time of the offence, the principal offenders were adults and he was induced by them to act as he did. In this case, the sentencing judge (following the agreed facts) held that Lulumae was one of the ringleaders. It is necessary also to bear in mind the provisions of the Juvenile Offender’s Act as to sentencing young persons which provides, in s16 for a number of sentencing options short of full-time imprisonment. However, there can be no doubt that a substantial sentence of full-time imprisonment must be imposed, even when every allowance for Lulumae’s youth is made.
    
30. Kada was about eighteen years old at the time of the offence. It appears that he spent most of his early life in his village in Malaita, until he was brought to Honiara by RAMSI following an allegation into an investigated case which did not, however, ultimately involve him. He was not repatriated and decided to stay here, supporting himself by growing vegetables for sale in the market. He got to know the other young men who were involved in the offence and in due course planned with them the attack on the Chen’s home. His separation from his family at a relatively early age and the absence of a settled and stable environment may have been a factor in his thinking that he should be involved in the offence. Yet he undoubtedly knew that the undertaking was a serious crime and that being prepared to do so despite the substantial risk of inflicting grievous harm having regard to the fact that knives were taken and the premises were occupied was gravely wrong. He also was a ringleader. We take into account that he expressed remorse through his counsel, pleaded guilty and spent almost one year and nine months in custody before sentence. In light of his age, there are hopes that increased maturity will bring about his rehabilitation.
    
31. At twenty one years of age, Moon was significantly older than the other respondents. It seems that he did not carry a knife. He was convicted after trial. There is no evidence to suggest that he did not fully understand the seriousness of the crime of which he was one of the ringleaders. He was arrested on 6 October 2006 and released on bail on 3 November 2006. Following his conviction on 5 October 2007, he was incarcerated again. The commencing date for his sentences was 6 October 2006. The Crown, in his case, relies on the additional ground of appeal that, having regard to the fact that he was on bail from 3 November 2006, to the date of conviction, the commencement date of his sentences was an error. This is conceded by counsel for Moon and is plainly correct. It seems that the sentencing judge overlooked the fact that, for most of the period between his arrest and conviction the respondent was on bail. As it happened, the appellant made good use of this time at liberty, married and settled down. This suggests that his prospects of rehabilitation are good. In his case, however, his age does not provide him with much mitigation. He must have fully appreciated the seriousness of the offences he was a party to instigating. We have taken into account the period of custody between arrest and bail. His sentences must commence on 5 October 2007. We have amended the commencement dates of the other offences although, because they are wholly subsumed in the s 224 offences, there is no point in adjusting their terms.
    

Orders

32. In each case the appeal is upheld and the sentences appealed from below are quashed.
    
33. So far as Lulumae is concerned the following sentences are substituted –
    
    • (i) in respect of the offence contrary to s 224 against Jun Jian Chen (known as Jessy Chan) a sentence of seven years’ imprisonment commencing on 22 March 2006; and
    • (ii) in respect of the offence contrary to s 224 against Chan Wei Lan a sentence of seven years imprisonment commencing on 22 March 2008.
      

Accordingly, the overall sentence imposed on Lulumae is nine years commencing on 22 March 2006.

34. So far as Kada is concerned, the following sentences are substituted –
    
    • (iii) in respect of the offence contrary to s 224 against Jun Jian Chen (known as Jessy Chan) a sentence of nine years’ imprisonment commencing on 6 March 2006; and
    • (iv) in respect of the offence contrary to s 224 against Chan Wei Lan a sentence of nine years’ imprisonment commencing on 6 March 2008.
      

Accordingly, the overall sentence to be served by Kada is eleven years from 6 March 2006.

35. So far as Moon is concerned, the following sentences are substituted –
    
    • (i) in respect of the offence contrary to s 224 against Jun Jian Chen (known as Jessy Chan) a sentence of thirteen years’ imprisonment commencing on 5 October 2007; and
    • (ii) in respect of the offence contrary to s 224 against Chan Wei Lan a sentence of thirteen years’ imprisonment commencing on 5 October 2009.
    • (iii) In respect of all other sentences imposed on Moon, their commencement dates are varied from 6 October 2006 to 5 October 2007.
      

Accordingly, the overall sentence to be served by Moon is fifteen years from 5 October 2007.

Chief Justice
Vice President, SI Court of Appeal

Judge of Appeal

Judge of Appeal