Waraka v Reginam [1997] SBHC 119; HCSI-CRAC 15 of 1997 (4 August 1997)

HIGH COURT OF SOLOMON ISLAND

Criminal Appeal Case No. 15 of 1997

MICHAEL WARAKA & GEORGE APUITAU
-v-

REGINAM

Before: Palmer, J
ngaring: 1st August, 1997
Judgment: 4th August, 1997

PALMER J.:

The Appellants had been convicted on one count of grievous hach contrary to section 219 of the Penal Code and an additidditional count of consuming liquor in a public place against the Appellant, George Apuitau. For grievous harm, they were sentenced each to 1 year, and for consuming liquor, 1 month but concurrent.
A number of grounds have been raised on appeal. These are:

"(1) The Court fail to take into account mitigating factors submitted for your petitioner.

(2) The Court fail to consider your petitioners' version of the fact when it seems to agree with the State's version that the victim may have contributed to the incident.

(3) The Court over emphasised the seriousness of the offence despite the absence of aggravating features, such as, no weapon being used during the incident."

The first ground raised in my respectful view must be dismissed. The learned Magistrate at page 17 of the Appeal Records did take into account and give credit for the various mitigating factors raised on behalf of the Appellants.
The second ground also in my respectful view must be dismissed. Again at page 17 of the Appeal Records, the learned Magistrate took into account the petitioner's version of facts as presented in mitigation but rejected it in favour of Prosecution's version. I quote:

"Your Counsel has asked the court that I consider your story put forward in course of mitigation. Unfortunately your story cannot be substantiated. Police story come from the victim, a police Officer and two bystanders. The veracity of their story is very strong and cannot be called as a fabrication of lies. I accept police story in its entirety and reject your story."

The final ground raised was that the learned Magistrate over emphasised the seriousness of the offence and thereby imposed a sentence which was in the circumstances excessive. Learned Counsel for the Appellants sought to distinguish the case referred to by the learned Magistrate, Regina v. Frazier Lausalo, Criminal Case No. 45 of 1992, as a very serious case of grievous harm in which a weapon had been used in the attack against the victim and caused grievous harm. The accused was sentenced to 3 years imprisonment. The point to note in the learned Magistrate's sentence however, was that he was referring to the range of sentences which the High Court had indicated for such offences as somewhere between 18 months to 3 years. The learned Magistrate accordingly considered the sentence he was imposing fairly lenient.

A number of cases were referred to for comparison purposes on appeal. One is the case of Regina v. Neemia Boberio, CRC No. 24 of 1992 in which a not guilty plea had been entered, and the injury sustained by the victim was less serious, a fractured arm and no weapons involved. The accused nevertheless was sentenced to 18 months imprisonment; 12 of which were suspended for 2 years.

The second case referred to was the case of Regina v. Mosi Gasimata, CRC No. 114 of 1993, in which the victim sustained a severe fracture to his left leg. The learned Chief Justice found that this was consistent with a kick being applied with boots and could not have occurred in the course of the struggle with the victim. The accused was sentenced to six months in jail.

By comparison, the circumstances as presented to the Court in this case showed that the victim had been attacked when performing his lawful duty to arrest for breach of the law by two men. It was uncalled for and cannot be condoned. Not only was he punched, but after he had fallen down, he was kicked by both accused and resulted in not only a dislocated ankle but a fracture of the fibula. There is evidence to show that the younger of the two was wearing boots and used this to kick the victim with (see page 8 of the Appeal Records). This with respect, is consistent with the injury sustained by the victim in having a fractured leg as found by the learned Magistrate. He did not accept Defence submission that the injuries could have been caused in the course of the struggle and the fall. Further, it was clear on the evidence before the learned Magistrate that the Appellants were drunk when the attack was made. That with respect is an aggravating feature in itself.

I am satisfied the circumstances of this case warranted a sentence of 12 months and cannot with respect be viewed as being manifestly excessive or harsh. I am satisfied it fell within the range of sentences for which the learned Magistrate could properly pass sentence. I agree entirely with the learned Magistrates' statement that persons who deliberately attack police officers in the lawful performance of their duties must expect an immediate custodial sentence.

Appeal dismissed.

ALBERT R. PALMER
THE COURT.