Buruka v Reginam [1991] SBHC 53; HC-CRAC 031 of 1991 (16 December 1991)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 31 of 1991

MICHAEL BURUKA

-v-

REGINAM

High Court of Solomon Islands
(Muria J.)

Hearing: 11 December 1991
Judgement: 16 December 1991

C. Tagariana Solicitor for Appellant
J. Wasiraro Solicitor for Respondent

MURIA J: This is an appeal against sentence imposed by the learned Principal Magistrate upon the appellant. The appellant was charged with Common Assault to which he pleaded guilty. The learned Principal Magistrate took into account the appellant's plea of guilty and his previous good character and imposed a fine of $200-00 of which $100-00 was to be paid to the victim as compensation.

The main ground advanced by the Counsel for the appellant is that the learned Principal Magistrate failed to take proper consideration of the compensation paid by the appellant after the incident to the victim. That compensation was originally said to be $60-00 but which the appellant now says, it is $160-00. There was no dispute on this and I accept that the compensation paid was $160-00. Counsel for the appellant argued that as the learned Principal Magistrate failed to taken into account the compensation paid, he imposed the fine of $200-00. Counsel submitted that the imposition of $200-00 fine when the appellant had already paid $160-00 compensation was excessive.

Custom is part of the law of Solomon Islands and payment of compensation has always been part of the custom of the people in Solomon Islands. As such payment of compensation must be accepted in Solomon Islands as a relevant matter for consideration in mitigation of sentences in criminal cases. I have no doubt that courts in Solomon Islands have already done so.

In the present case, the record shows that in mitigation the appellant stated that they had sorted the matter out in custom and compensation of $60-00 was paid. In sentencing the appellant, the learned Principal Magistrate gave credit for his plea of guilty and that he had no previous conviction. There was no indication on the record that he took into account the compensation paid by the appellant. In the absence of any indication on the record and together with the concession by counsel for the Respondent that the learned Magistrate did not take the compensation payment into account, I am satisfied that the learned Principal Magistrate failed to take into account the compensation payment.

Does this failure on the part of the learned Principal Magistrate make the sentence complained of in any way excessive? I think it does not, for reasons which will become apparent later in this judgement.

It has been a well established rule that an appellate court will not interfere with the trial judge's discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because the trial judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence. The authority for that proposition in Solomon Islands is the case of Saukoroa -v- R (1983) SILR 275 which was later followed in Berekame -v- DPP (1985-1986) SILR 272. Although, as I have already found, the learned Principal Magistrate did not take the Compensation payment into account, the appellant must show that in the circumstances of the case, the $200-00 fine was manifestly excessive. To decide whether the sentence of a fine of $200-00 in this case is manifestly excessive or manifestly inadequate, the court will have to consider the facts of the case. After considering the facts the court can then exercise its powers under section 292 of the Criminal Procedure Code which provides that:

"292 (1) At the hearing of an appeal the High Court shall hear the appellant or his advocate, if he appears, and the respondent or his advocate, if he appears, and the High Court may thereupon confirm, reverse or vary the decision of the Magistrate's Court, or may remit the matter with the opinion of the High Court thereon to the Magistrate's Court, or may make such other order in the matter as to it may seem just, and may by such order exercise any power which the Magistrate's Court might have exercised:

Provided that the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) At the hearing of an appeal the High Court may -

(a) if it thinks that a different sentence should have been passed quash the sentence by the Magistrate's Court and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed; or

(b) if the appeal is against conviction alone and no sentence has been passed on the appellant by the Magistrate's Court by reason of the appellant's having been committed for sentence to the High Court by the Magistrate's Court in accordance with the provisions of section 207 prior to the presentation of an appeal, impose such sentence as it thinks fit.

(3) The High Court may at any stage adjourn the hearing of an appeal."

As this is an appeal against sentence, subsection (2) is clearly the relevant provision to bear in mind.

The facts of this case are not in dispute. The appellant had an argument with his wife and hit her. As a result his wife ran away leaving their small child crying behind. The victim, Mary Malevo, then carried the child and followed the appellant's wife. When the victim caught up with the child's mother, she asked the mother why she had to ran away leaving the child behind crying. The appellant's wife then swore at the victim who having felt bad about being sworn at, slapped the appellant's wife. The appellant saw this and was angry with the victim. The appellant got hold of an iron bar and struck the victim two times on her backside and once on her upper right arm. As a result of being struck with the iron bar the victim fell to the ground. This court has been told that the police originally charged the appellant with Assault Causing actual bodily harm but later it was reduced to common assault due to lack of medical report. On the facts of this case it is hardly surprising that the appellant was charged with assault causing actual bodily harm and I am surprised that the police did not proceed with that count if they had evidence to charge him with assault causing actual bodily harm in the first place. The prosecution must never allow themselves to be too ready to make concessions for lesser charges simply because evidence, such as in this case, the medical report, are not readily available. Such a practice is a breeding ground for injustice.

As it can be seen from the facts of this case, the assault on the victim by the appellant was clearly an aggravated one. The victim fell to the ground following the two strikes with the iron bar on her backside and one on her upper right arm. It involved the use of a weapon and needless to say, an iron bar used by a man in the heat of anger can be lethal. In those circumstances it cannot by any stretch of imagination be said that the fine of $200-00 for such an aggravated assault was in any way excessive. In fact it was manifestly inadequate. One would have though that having taken the trouble of picking upon their one week old child, left behind crying, the wife and the appellant could at least appreciate what she (victim) did instead of receiving a swear from the wife and an iron bar from the appellant.

I have every sympathy for the learned Principal Magistrate who having faced with a case of the accused who pleaded guilty and with a previous clean record thought best to deal with the matter by way of a fine. This court has time and time again given warnings that assaults committed with the use of weapons must be met with imprisonment sentence. The length of the sentences must depend on the degrees of the assaults. In Maona -v- R Crim. App. Case No. 8 of 1982 (unreported) Daly CJ reiterated the warnings on the uses of weapons in assault cases. In that case the appellant Maona, was charged with one count of Affray and one count of Common Assault. In the course of the affray, the appellant was clutched around the waist by the victim. The appellant who was in possession of a pair of scissors plunged his hand backwards and caught the victim in the belly. The victim fell down bleeding. There was no medical report as to the injuries although the injury was said to be minor. The appellant was convicted and sentenced to $10-00 fine on the affray count and to 3 months imprisonment on the common assault. The appellant appealed against his 3 months sentence. When considering the appeal Daly CJ said:

"Courts in Solomon Islands always considers imprisonment when a weapon is used in the course of fights."

His Lordship further pointed out that:

"the sentence of three months for this kind of assault would be correct in principle even were there no previous convictions."

I cannot help feeling that this present case falls neatly into this category of assault, that is, assault involving the use of weapon.

Having so found, it now falls on this court to exercise its powers under section 292 of the Criminal Procedure Code. This case merits an exemplary sentence. The learned Principal Magistrate had clearly overlooked a salient fact in this case which is the use of weapon and it thus falls into one of the instances which warrants interference of the sentence passed by the trial judge as stated in Saukoroa -v- R and Berekame -v- DPP.

Pursuant to the powers of this Court under section 292(2) CPC I quash the sentence of a fine of $200-00 imposed by the learned Principal Magistrate and substitute therefor a sentence of 2 months imprisonment. That sentence is to take effect as from 18th November 1991.

I further order that the appellant pays shall pay $160.00 (which sum I accept the appellant had already paid) as compensation to the victim pursuant to section 27 of Penal Code. Should the appellant have already paid the fine imposed by the Magistrates Court, I order that it be refunded to the appellant.

Sentence: 2 months Imprisonment with effect from 18th November 1991.

In addition, an order of compensation in sum of $160-00.

(G.J.B Muria)
JUDGE