Koewane v Regina [2005] SBHC 21; HCSI-CRC 388 of 2005 (11 November 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 388 of 2005.

REX KOEWANE

-v-

REGINA

(KABUI, J.).

Dates of Hearing: 29 September, 6, 27, and 31 October and
9 November, 2005.
Date of Judgment: 11th November 2005.

H. Kausimae for the Crown.
L. Kershaw for the Appellant.

JUDGMENT

Kabui, J. The appellant is Rex Koewane. He has appealed his sentence of imprisonment for five months imposed by the Magistrate sitting in Honiara on 22nd July 2005. The ground of appeal is that the sentence of imprisonment for five months is manifestly excessive in the circumstances of the case. The other grounds in the Notice of Appeal are also aimed at reducing the sentence.

Rex Koewane pleaded guilty to the charge of going armed in the public, contrary to section 83 of the Penal Code, (the Code). The offence is a misdemeanour and being so attracts a penalty of imprisonment for two years or a fine or both under section 41 of the Code. The Magistrate has a wide discretion in deciding the appropriate sentence under section 41 of the Code for misdemeanours. A custodial sentence is one of the options open to the Magistrate which the Magistrate chose to apply in this case.

However, the question remains whether the custodial sentence of imprisonment for five months is manifestly excessive in the circumstances of this case. The answer to this question is two-fold. Firstly, the custodial sentence may be reduced. Secondly, the custodial sentence may be quashed and substituted with a non-custodial sentence.

The Facts.

A fight developed amongst persons who had attended a community inquiry into alleged sorcery which resulted in the death of a number of persons. The inquiry was being conducted at a village in East Kwaio on Malaita. A number of weapons had been collected from persons as they arrived at the village by police officers who were present in the village. As a result of the fight, Koewane picked a knife from the weapons that had been collected and was seen standing and holding it. When a police officer in plain cloth attempted to remove the knife from Koewane’s possession, Koewane pulled his hand away from the police officer and in that unhelpful struggle, the knife cut the finger of that police officer. The charge for causing grievous bodily harm has been dropped against him.

Mitigation.

Koewane had pleaded guilty and is of good character. He has a wife and five children and supports three other children. He is only 25 years old and had a job as a microscopist. He was earning about $100.00 per day.

The sentence imposed by the Magistrate.

The Magistrate seemed to have taken the view that Koewane should not have been in his possession of a weapon such as a knife as he did. The police officers had collected the weapons and put them away. It was wrong of Koewane to have possessed a knife at a time when weapons had been taken away to keep the peace when the inquiry was being conducted. Also, when the police officer came to collect the knife from him, he refused to hand it over to that police officer. By pulling away his hand, the knife he was holding cut the police officer on his finger.

True, he was armed but not in a way that caused general alarm in the village. There is no evidence of any general alarm caused by his being armed. The fact that the police officer went across to him to collect the knife he was holding was to disarm him as had been done to others who had come to the village to avoid any possible injuries to anyone should a fight break out as it did.

The mistake he made was that he disobeyed a police officer in refusing to hand over the knife for safe-keeping. Carrying knives and axes on Malaita is a common sight and practice. People do carry small knives in their baskets or carry bush knives everyday. It is part of the culture there. I take judicial notice of this fact.

If one is carrying a weapon to go to fight or threaten someone in the village or another village, then it is carrying a weapon in a public place without lawful excuse in such a manner to cause alarm. Obviously, in this case, Koewane being in possession of the knife might have caused personal alarm to the police officer and so the need to disarm Koewane. The alarm might have been real in the sense that there was a fight and Koewane might have seen it fit to use the knife. It was perhaps a matter of being apprehensive of the possible unlawful use of the knife by Koewane.

I do not however think the manner in which the offence had been committed is so serious that he must go to prison for it. I would quash the sentence of imprisonment for five months and substitute a fine of $50.00 to be paid by 4.30pm this afternoon in default of which, Koewane will go to prison for fourteen days.

Koewane should not have been kept in the Auki Prison in the first place. He could have been released on bail awaiting coming to Honiara for his trial.

Orders of the Court are-

1. Quash the sentence of imprisonment for five months imposed by the Magistrate;
   
2. Substitute a fine of $50.00 in lieu of the quashed sentence to be paid by 4.30 this afternoon;
   
3. In default of payment of the fine specified in 2 above, Koewane is to go to prison for fourteen days.
   

I order accordingly.

F.O. Kabui
Puisne Judge