Malefo v Regina [2013] SBCA 7; Criminal Appeal Case 34 of 2012 (26 April 2013)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION			Appeal from Judgment of the High Court of Solomon Islands Criminal Case No. 330 of 2011 (Pallaras, J.)
COURT FILE NUMBER:			Criminal Appeal Case No. 34 of 2012
DATE OF HEARING:			23 April 2013
DATE OF JUDGMENT:			26 April 2013
THE COURT:			Goldsbrough, President Sir Gordon Ward, JA. Mwanesalua, JA.
PARTIES:	Aloisio James Fanataloa MALEFO (Appellant)
	-V-
	Regina (Respondent)
ADVOCATES: Appellant: Respondent:	H. Fugui for Appellant R. Iomea for Respondent
KEY WORDS:	Attempted Murder
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:		Dismissed
PAGES:		1 – 5

JUDGMENT OF THE COURT

[1] The appellant, Aloisio James Fanataloa Malefo, was charged with attempted murder of his wife, Luisa Lucy, on 2 May 2011. He pleaded not guilty but was convicted and sentenced, on 7 September 2012, to 11 years imprisonment. He appeals against that sentence on the grounds that it was manifestly excessive and that the learned sentencing judge erred in holding that the 5-7 year range for sentencing as expressed in R v O'ofania HC-CRC 14 of 1975, and affirmed in R v Bela [2004] SBHC 36, should no longer be persuasive as a midpoint for a sentence for attempted murder.

[2] The evidence was that the couple have had troubles in the past and the wife had left her husband but returned. The previous day the wife had gone to harvest cocoa. She had been unable to return home for the night because her money had been taken and she had no money for the fare. The next morning she met her husband in the road and greeted him only to receive the response, "You will feel it today." He then walked on towards a bridge with his wife walking a little behind him.

[3] When the wife reached the bridge, her husband approached her with a can of beer and told her to drink it. She declined at which he slapped her on the back of her head, grabbed her and threw her off the bridge. As he did so, he said to her, "Today is your day."

[4] She fell between 6.5 and 7.7 metres and landed on the rusting iron frame of a World War II relic receiving severe injuries especially to both legs. The husband then turned and ran away leaving his wife where she had landed. She was brought up by a relative, taken to her home and then to hospital. At the time of the trial more than a year later it was apparent to the judge that she was still in some pain and unable to walk easily.

[5] Counsel for the appellant referred the judge to a number of cases including the case of O'ofania, to which the judge referred and which was described as the guideline case for sentences for attempted murder. The judge pointed out:

"The case of R v O'ofania is often cited as supporting the submission that the range of recorded sentences for attempted murder in husband and wife relationships falls within 5 to 7 years It has also been said by the Court [in R v Bela ] that the case of O'ofania represents "the mid-point sentence" for attempted murder in Solomon Islands. In that case a sentence of six years was imposed. According to the author D A Smith, the cases falling outside the husband and wife category are not so many as to provide a useful guide to typical sentences for them. The author suggests that the upper limit of these types of cases should be around 14 years imprisonment without any indication of what the lower limit should be.

If it is suggested that in cases of attempted murder between husband and wife, a lower sentence should be imposed simply because of the marital relationship, then with great respect to the proponents of that view, I cannot agree. While the relationship between the accused and the victim is always a relevant consideration to be taken into account when assessing the overall sentence, the relationship of husband and wife is one of many relationships that might exist and it is only one of many factors to be considered. Even then evidence of the nature of the relationship may conceivably work to aggravate or mitigate a sentence."

[6] Having dealt with the facts of the case, the judge expressed the view that the circumstances of this case take it beyond the "mid-point" for sentencing as suggested in O'ofania's case. He continued in reference to that case:

"That was a case decided many years ago in 1975. A good argument can be made that an authority of that vintage should no longer be as persuasive as it once was and the sentences based on assessments made almost 40 years ago no longer relevantly reflect contemporary community standards on sentencing practice."

[7] Counsel for the appellant challenges that suggestion and submits that the mid- point range of sentences mentioned in that case should still be accepted as the standard.

[8] There can be no doubt that the appearance of new factors such as increased or reduced frequency of offending, changes in attitude, increasing acceptance or rejection of particular offences and general changes in the mode of committing offences mean that guidelines need to be changed to bring them into line with more recent thinking. However, we do not consider that the mere fact that guidelines were made 40 years ago is any basis for change. The judge offered no other reason for his suggestion that O'ofania has come less persuasive with the passage of time. It is hard to understand the implication that in some way a term of years in prison has a greater or lesser effect in terms of punishment or deterrence now than it did 40 years ago. Such an argument may properly be applied in terms of monetary penalties, which need to be increased in times of inflation whether or not the frequency of a particular offence has changed but this is not such a case.

[9] We are not satisfied that this case demonstrates any good reason why the courts in this jurisdiction should cease to follow the guidance of O'ofania when sentencing cases of attempted murder.

[10] However, we do accept the judge's comments about the apparent suggestion that a lower sentence should be imposed for the offence if committed by a husband on his wife or vice versa. The frequent references, when dealing with the appropriate range of sentence in attempted murder, to the "husband and wife category" arises because, in many jurisdictions, a large proportion of attempted murder cases involve husbands and wives. As the learned judge said, the fact that it occurred within a marital relationship may aggravate or mitigate a sentence. However, the nature of the responsibilities of one spouse to another and the betrayal of the mutual trust upon which marriage should be based means that an attempt by one spouse to kill the other must almost invariably be a factor of substantial aggravation.

[11] We accept the respondent's suggestion that, if the judge in the present case failed to have regard to the guideline in O'ofania, he was in error. However, his judgment considered as a whole does not support such a suggestion.

[12] Following his comment about the age of the O'ofania case he continued:

"Whether that be so or not, on any analysis, this is a bad case of its type and the sentence imposed must reflect that categorisation. In Puluhenue, a recent case of attempted murder, the maximum sentence of life imprisonment was imposed even after pleas of guilty. In all criminal cases, there are clearly degrees of seriousness based on the particular circumstances to be found in the case. While I do not regard this case to be in the same category as Puluhenue, it is clear from my remarks that I nevertheless judge this to be a serious case of its type."

[13] He then listed the mitigating and aggravating features and concluded that the proper sentence was 11 years imprisonment.

[14] We are unclear how the decision in O'ofania to make a sentence of 5 to 7 years the 'mid-point' was reached or quite how it was to be understood. Unfortunately, although it has been cited in a number of cases of attempted murder, we have been unable to obtain a copy of the sentencing judgment of Bodilly J and our enquiries of counsel revealed that they had been equally unsuccessful. However, if the mid-point means the offence will, without matters of mitigation or aggravation, fall into that range then it would appear to be the same as a starting point in more recent terminology and we shall consider it as such.

[15] Attempted murder is a terrible offence and properly carries a maximum penalty of life imprisonment. Unlike murder in which conviction may arise from an intention less that an intention to kill, the intent in attempted murder is to kill and nothing less. Whilst the charge means that the intended attack has been unsuccessful, the fact that it was the sole intention of the person charged emphasises the gravity of such a conviction.

[16] In cases of rape, which came before the Court this session, we have confirmed that the starting point for rape cases is five years. We consider that, on that basis, the starting point for attempted murder should be the upper level of the 5 – 7 years suggested in O'ofania. Mitigating factors may reduce and aggravating factors increase that sentence in the usual way but with the caveat that the gravity of the intention to kill means that matters personal to the convicted person should have little value in mitigation and will only be of assistance in exceptional circumstances. Examples may be where, the attempt to kill having failed, the attacker shows true remorse by assisting his erstwhile victim and where he pleads guilty which avoids the need for his victim to repeat the experience in evidence. On the other hand, aggravating features are likely to increase the appropriate penalty substantially. In that category we would include any extra cruelty inherent in or added to the method used in the attempt to kill, cruelty beforehand, lack of care for the victim or lack of interest in whether the attempt was successful or not and attempting to kill the attacker's spouse while in the matrimonial home. That list is not exhaustive.

[17] In the present case, it appears the learned judge must have started from the O'ofania mid-point and then added 4 years for the matters of aggravation he listed in his judgment; the pain and suffering his action had brought to his wife, the effect on his children and the lack of remorse for the injuries he has caused his wife which the judge found "particularly concerning and consistent with the manner in which you abandoned your wife and refused to help her in any way once you had thrown her from the bridge". We would add the fact she was his wife and, whilst it was not proved that he knew she would fall on the rusty metal, he left her draped broken and crying on it, in the words of the judge, until her relative assisted her.

[18] In the light of those matters of aggravation we consider the sentence is appropriate and the appeal is dismissed.

Order

Appeal dismissed. Sentence of eleven years imprisonment confirmed and to run from 18 May 2011 the date he was taken into custody.

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Justice Edwin Goldsbrough
President

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Sir Gordon Ward, JA
Member

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Justice Mwanesalua, JA
Member