Regina v Misiben [1994] SBHC 53; HCSI-CRC 15 of 1994 (14 March 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.15 of 1994

REGINA

-v-

MISIBEN

High Court of Solomon Islands
(Palmer J.)
Criminal Review Case No. 15 of 1994

Hearing: 29th March 1994
Judgment: 14th March 1994

J.Faga for Prosecution
B.Titiulu for the Defendant

PALMER J: This case came before this Court for review on the 29th of March 1994. It was then adjourned generally pending the location of the accused by the police. As at the date of writing of this review judgment, the accused had not been located. I note this was a similar problem experienced in the lower court.

The accused was convicted on the 14th of January 1994 and sentenced to imprisonment for 18 months on a charge of unlawfully causing grievous bodily harm contrary to section 219 of the Penal Code. The sentence was then suspended by the learned Magistrate.

It is not in dispute that section 43A (2) of the Penal Code (Amendment) (No.2) Act 1987, provides that the powers of the Court to impose a suspended sentence under section 43A (1) shall not apply in the case where a weapon was used in the commission of the offence. It is also not in dispute in this case that a weapon was used in the commission of the offence under section 219 of the Penal Code. The learned Magistrate therefore had no power to suspend the custodial sentence imposed. The order to suspend the sentence of 18 months imprisonment accordingly is a nullity. The custodial sentence therefore should commence from the date of conviction, being, the 14th of January 1994.

As at the date of review of this case, the accused had just been released from prison on the previous Friday, the 25th of March 1994. The accused had been serving a prison sentence for 150 days for absconding bail.

One of the crucial questions in this review is whether a custodial sentence is appropriate. Learned Counsel for the accused, Mr Titiulu submitted that there were strong mitigating factors in favour of the accused which, when weighed together with the seriousness of the offence should have resulted in a fine imposed against the accused rather than a custodial sentence.

The main mitigating factors raised by Mr Titiulu were that:

(i) The assault on the victim occurred as a result of an argument between the parties.

(ii) The accused had been exposed to two extreme occasions when he had been provoked by the victim. The first one was when he discovered the victim committing sexual intercourse with his wife in their bedroom. According to the accused's custom, such a discovery would have entitled him to kill the accused. Instead, under great restraint, he asked the victim to pay compensation and warned him not to return to his house. The second occasion was when in defiance of his warning; the victim went to his house and was discovered by him to be playing cards at his house. It was on this second occasion that the assault on the victim was caused with a piece of timber as the weapon.

(iii) That as a result of the adultery between the victim and his wife, the family of the accused had been broken up and his wife had left him. He was left alone therefore to look after his children.

I accept that these are powerful mitigating factors together with all the other mitigating factors mentioned. However, I am unable to accept that a fine would be more appropriate in those circumstances. I accept the conclusion of the learned Magistrate that the use of a weapon in the circumstances of this case was serious and that it was important that the Court demonstrated this to the accused by imposing a custodial sentence. The imposition therefore of a custodial sentence was proper.

The next question to consider in this review is whether the sentence of 18 months was appropriate. This is where I must differ. I am satisfied that when the circumstances surrounding the commission of the offence are considered and the mitigating factors, plus the medical condition of the victim which appears not to be that serious (the medical reports have not been forwarded as part of the review exercise), the period of 18 months imposed is excessive. An appropriate sentence would be 6 months. The 18 months custodial sentence is accordingly quashed and a sentence of 6 months substituted, with effect from the 14th of January 1994. As at the writing of this review judgment, it is exactly five months into the sentence had it been served and most likely the accused would have been released on a one-third remission. It would not be appropriate therefore to order that the accused be arrested and made to serve any remaining part of the custodial sentence. He will however, have a record of conviction of 6 months made against him in his record of previous convictions. The orders are made accordingly.

(A.R. Palmer)
JUDGE