Maelafia v R [2021] SBCA 8; SICOA-CRAC 43 of 2019 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Maelafia v R
Citation:
Decision date:	1 February 2021
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands
Court File Number(s):	43 of 2019
Parties:	Willie Maelafia v Regina
Hearing date(s):	Paper Hearing October 2020 sitting
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Ifuto’o B for Appellant Ratu O for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 226 [cap 26], S 24 (5), S 226, S 229, S 224
Cases cited:	Tii v R [20017] SBCA 6, Lusibaea v R [2007] SBCA 7
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-7

JUDGMENT OF THE COURT

1. This appeal, with leave, is against sentence. It is brought by Willie Maelafia, hereinafter called the appellant, who was sentenced to a term of imprisonment of five years following his conviction for the offence of inflicting grievous bodily harm country to section 226 of the Penal Code [Cap 26].
2. The conviction was entered in the High Court on 30 August 2019. The sentence the subject of this appeal was imposed on the 25th of October 2019. Although expressed in the notice of appeal against sentence as two grounds, in reality, there is but one ground. That ground is that the sentencing judge was in error when he failed to take into account pre-sentence custody. As a consequence, it is said in the grounds of appeal, the sentence becomes manifestly excessive.
3. On 7 January 2017 at Feraladoa Settlement, East Honiara, the appellant stabbed his wife of twenty-two years six times. He did this in front of her family, her mother, step-father and two of her children. By the time of this attack, the couple had separated and, apparently, moved on with other partners. The appellant travelled to where his estranged wife was then living, in East Honiara, arriving with a kitchen knife.
4. Four out of the six stab wounds are described as superficial. The remaining two required surgery to repair the small intestine and uterus of the victim, who was at the time of the attack, thirty-three weeks pregnant.
5. Little was put to the sentencing court by way of mitigation. The appellant had pleaded guilty at the first opportunity, he had undergone a customary reconciliation with his estranged wife and family and lacked any previous convictions. It was said that he had been surprised to find his estranged wife where she was, with her family and that it was only then that he realised she had taken up with another man. It was said he acted in a rage.
6. There is no complaint that the sentence imposed, that of five years was in itself manifestly excessive. Equally, there is no complaint that the sentence itself is manifestly inadequate, although were either question before this Court, we have little doubt that our answer would lean towards inadequate.
7. The appellant was arrested on 9 January 2017 and had remained in custody pending trial for approximately thirty-two months prior to the matter being disposed of by the High Court. In sentencing the offender, no reference was made to that period of pre-sentence custody.
8. It is this failure to refer to the pre-sentence custody which gives rise to this appeal. The question can be answered without a great deal of explanation, given that it is a question previously, and sadly now repeatedly, answered by the Court.
9. In Tii v R [2017] SBCA 6 this Court expanded on the principles previously referred to in Lusibaea v R [2007] SBCA 7 which should be applied when an offender had undergone a period of pre-sentence custody before the imposition of a sentence. There are several issues to consider including but not limited to whether the pre-sentence custody related to the present offence or included other offences, whether it was continuous or broken by any period spent on bail and its length.
10. This Court said in Tii:-
    • In the normal course, pre-sentence custody should be taken into account in an offender’s favour. If a sentencing judge decides not to do so, he should say so expressly and explain why he is not doing so.

When nothing is said about the period of pre-sentence custody within the sentencing remarks, it is impossible to ascertain whether the period was overlooked or whether the sentencing judge felt that the total period of effective custody was warranted for the particular offence.

11. In this instance, given that the period imposed for this offence of wounding was particularly lenient, in our view, it could be that the total period, including the pre-sentence custody, was deemed appropriate by the sentencing court. In the absence of any explanation within the sentencing remarks, it could equally be the case that the judge forgot about the period.
12. This is entirely unsatisfactory. An offender, any victim and the public, in general, are entitled to know what the appropriate sentence is for any particular offence without resort to guesswork. The sentence and reasons for it, the aggravation and the mitigation which his taken into account are required to be set out in the sentencing remarks. Failure to set out those factors is inexcusable, particularly bearing in mind that the matter had been adjourned for more than eight weeks after conviction before sentence was imposed.
13. To ensure that a sentencing judge may discharge the duty of taking the period into account or at least setting out why not giving credit for it is appropriate, counsel involved must make available the material necessary to do that. This will include the date an offender was taken into custody, whether it related to just the present offence and how long the period lasted up to the date of sentence.
14. It was further said in Tii:-
    • In a case like the present, where the offender was in pre-sentence custody solely on account of the offence for which he was being sentenced and where the period of pre-sentence custody was continuous (that is, unbroken by periods out of prison on bail), this should be done simply and effectively by ordering that the sentence be deemed to have commenced on the date he was taken into custody. See Penal Code s. 24(5). It would be necessary to make such an order as part of the sentence to ensure that the date he was first taken into custody was used as the starting point in calculating one-third of the sentence for remission purposes.

Here, the pre-sentence custody was unbroken and solely for the single offence of wounding. In the absence of any reason set out why the period should not be taken into account, the appellant was entitled to have it taken into account by an order that sentence be deemed to have commenced on the date he was first taken into custody.

15. This failure to deal with the pre-sentence custody is accompanied by several other failures in the sentencing process. There is a failure to identify, within the sentencing reasons, what sentence the offence itself merits, a failure to identify those features that the Court regarded as going towards the aggravation of the offence and to the mitigation of the offence, and what factors present within the offender himself that warranted taking into account.
16. In short, to the informed reader of the decision, there is no indication as to how the sentence was arrived at. This, also, is entirely unsatisfactory. Tii also sets out guidance as to what practice should be followed, and set out, within the sentencing exercise. It is equally important to explain each step taken in the sentencing remarks.
17. The offence for which this appellant was convicted and sentenced falls under section 226 of the Penal Code which provides:-
    • Grievous harm 226. Any person who unlawfully does grievous harm to another is guilty of a felony, and shall be liable to imprisonment for fourteen years.
18. This is in contrast to section 229 which provides that any person who unlawfully wounds another is guilty of a misdemeanour and shall be liable to imprisonment for five years. It is also regarded as less serious than the offence under section 224 of the Penal Code which provides for a maximum penalty of life for grievous bodily harm inflicted with intent.
19. The offence involved the infliction of several knife wounds, two of which required surgery. In seriousness, it falls within the more serious incidents of the offence. Had the grievous harm been even slightly more serious, or the surgeons less skilled, the medical assistance more remote, death may well have resulted from the actions of the appellant.
20. This was a crime perpetrated on an estranged spouse apparently as a result of the discovery that the spouse had moved on. There is a suggestion of family reconciliation, a lack of previous convictions and an early guilty plea to the present offence.
21. We consider that a suitable starting point for an offence of this nature is that of ten years imprisonment. We would take into account the significance of a plea of guilty at an early opportunity thus saving the victim of further distress. We cannot otherwise find any substantial mitigation save the lack of previous convictions. A weapon was used, which we regard as aggravating but not such as to warrant any substantial increase in penalty. It may have been different were there information to indicate that the offender was armed in advance but it appears that is not the case here.
22. Giving due credit for an early guilty plea and the appellant’s previous good character would reduce the head sentence of ten years down to seven years, which is the effective sentence imposed by the lower court when it failed to give any credit for pre-sentence custody. We do not, however, regard it as just to increase the sentence in this particular case for two reasons. Were it not for the clear and obvious omission to consider granting credit for pre-sentence custody, the appellant would not have brought this matter on appeal. Secondly, the difference between the two sentences and the amount of time already spent in custody for this offence suggests that to tinker with the effective sentence would not be justified.
23. This appeal is allowed. The sentence of five years imprisonment as imposed is quashed. A sentence of imprisonment of five years is imposed by this Court for the offence of wounding but deemed to have commenced on the date when the offender was first taken into custody for this offence, being 9 January 2017.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member