Regina v Bitiai [2010] SBCA 3; CA-CRAC 15 of 2009 (26 March 2010)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a Judgment of the High Court of Solomon Islands (Mwanesalua J.)
COURT FILE NUMBER:	Criminal Appeal Case No. 15 of 2009. (An appeal from High Court Criminal Case 246 of 2009)
DATE OF HEARING:	18 March 2010
DATE OF JUDGMENT:	26 March 2010
THE COURT:	Sir Robin Auld P McPherson JA Williams JA
PARTIES:	REGINA (Appellant) -V- BEN BITIAI (Respondent)
ADVOCATES:
Appellant	TALASASA and KESAKA
Respondent	HOU and CAVANAGH
KEY WORDS:	CRIMINAL LAW – SENTENCE – GRIEVOUS BODILY HARM WITH INTENT
RESERVED/ALLOWED:	Allowed
PAGES:	4

JUDGMENT OF THE COURT

The respondent pleaded guilty to a charge that on 26th December 2007 he, with intent to cause grievous harm, did cause grievous harm to his former de facto wife Catherine Koke (Section 224 (a) of the Penal Code). He was sentenced on 2 October 2009 to imprisonment for 3 years and 8 months. The Director of Public Prosecutions appeals against that sentence on the ground that it was manifestly inadequate in that it did not properly reflect the seriousness of the case and fell outside the applicable sentencing range for such matters. As the argument developed it became clear the main contention was that the sentencing judge failed to give proper weight to the element of intention.

The respondent and the victim commenced living in a de facto relationships around 2003. The relationship was marred by violence and in 2006 the victim left the respondent and began living with another man to whom she became pregnant. When about 2 months pregnant she resumed her de facto relationship with the respondent who maintained her and the child until about November 2007. The respondent then returned the victim to her parents because of financial considerations.

On or about 16 December 2007 the respondent called at the home of the victim’s parents and asked for her. He was told she had returned to the child’s father. The respondent then made a general threat to do harm to or kill Catherine. Later in December he asked the victim’s father to repay the bride price he had originally paid in about 2003.

On 23rd December the baby became ill and was admitted to the National Referral Hospital. The next day the respondent and the victim’s father had an unsuccessful attempt to resolve the compensation issue. Later on 24th December the respondent was seen near the hospital carrying a knife. On the following day, 25th December the victim’s sister was with her at the hospital and at about 4.30pm the respondent was seen in the vicinity.

At about 3 am on the morning of 26th December the victim went outside the hospital to chew betel nut. The respondent was outside the hospital fence and threw a stone which hit the victim on the buttocks. The victim went back inside and spoke to her sister; then both went outside where the respondent asked the victim to go with him. She refused because of a previous threat that he would kill her. The victim and her sister went back into the hospital. The respondent was then seen carrying a knife and walking toward the main gate as if to leave.

The victim and her sister went to sleep in the hospital lying with the baby. About 5am the respondent entered the hospital carrying a 30cm kitchen knife and with his face covered with a lava-lava. The victim was breast feeding the baby. The respondent touched Catherine on the shoulder and as she turned stabbed her under the left breast with the knife. As she turned further around she was stabbed twice in the back. The front wound penetrated the abdomen and the left lobe of the liver. The wounds to the back were relatively superficial. She was rushed to surgery and a litre of blood was drained from her abdominal cavity. The victim recovered but is still experiencing abdominal pain and has some numbness and weakness in her arm. She was discharged from hospital on 30 December 2007.

The respondent was chased by members of the public and apprehended. He was interviewed by the police and admitted to the attack. He said he was "cross" because she had gone off with another man. He wanted her to feel the same pain that he was feeling.

The learned sentencing judge noted that the respondent "had difficulty in coming to terms with his rejection by the victim". He then stated that offences defined in s.224 of the Penal Code were "serious because they involve deliberate or intentional causing of serious injury." He followed that with a quote from the decision of this court in R –v- Kada [2008] SBCA9 dealing with the seriousness of such offences. He noted the aggravating features of this case: the knife penetrated the liver, the attack was motivated by revenge, the assault took place in a vulnerable place namely a hospital, and it was on a defenceless mother. The respondent also had a previous conviction for assault occasioning bodily harm for which he was fined.

The sentencing judge then recited mitigating factors: plea of guilty on arraignment, cooperation with police and delay between arrest and trial. The comment was made, correctly, that the victims’ injuries were less serious than those under consideration in Kada.

The sentence of three years eight months imprisonment was then imposed to run from 26 December 2007. It is not clear how that precise term was determined.

In Kada this Court said:

"It seems to me that, far from establishing the sentence at the bottom of the range for offences under s.224 (a), Dani [2004] SBCA 16 establishes that the bottom of the range for such offences must be considerably higher than four years.

...

In dealing with an offence involving the infliction of personal injury, the two most important considerations must be the extent of the injury and the intention and motive of the offender. It is obvious 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... and the offence intended that injury or something like it occur."

It was the latter passage that the sentencing judge quoted in his reasons.

It is clear from the outline of facts that there was premeditation and planning involved in the commission of the offence which was motivated by anger and revenge. It is also clear that the respondent intended to cause serious harm to the victim and did so. The injury sustained was extremely seriously and if the victim was not already in a hospital the outcome could well have been much worse. Considered objectively the extent of the injury and the intention of the respondent made this offence a serious example of one under s.224 (a). It was not the most serious as the facts of Kada demonstrate, but it was by no means at the bottom of the range. In our view the sentence imposed does not appropriately reflect those considerations. That becomes more evident when the need for deterrence for crimes of violence is added to the equation.

At first instance, and again in this court, the respondent relied on provocation, not as a defence, but as a mitigating factor on sentence. Ultimately counsel for the respondent conceded provocation should not be given "significant weight". That concession is correct given the lengthy period, a number of days, during which the respondent was armed with a knife and lurking with intent in the vicinity of the victim. The element of intention to harm is very strong in this case.

The court has come to the conclusion that the sentencing judge failed to give sufficient weight to the extent of the injury and the intention of the respondent to cause such an injury objectively considered.

A notional head sentence of at least six years was called for. Then there would be a reduction for the mitigating factors referred to by the sentencing judge and some moderation because this is a Crown appeal.

In the circumstances the appeal should be allowed, the sentence imposed on 2 October 2009 should be set aside, and in lieu theory the respondent should be sentenced to imprisonment for 4 years 9 months to date from 26th December 2007.

Sir Robin Auld P
President of the Court of Appeal

McPherson JA
Member of the Court of Appeal

Williams JA
Member of the Court of Appeal