Kunia v Regina [2005] SBHC 60; HCSI-CRAC 599 of 2004 (21 February 2005)

HCSI-CRC 599-04

HIGH COURT OF SOLOMON ISLANDS
Criminal Case Number 599 of 2004

JOHN KUNIA

-v-

REGINA

(Palmer CJ)

Date of Hearing: 18th February 2005
Date of Judgment: 21st February 2005

C. Baker for the Appellant/Defendant
P. Little for the Respondent/Crown

Palmer CJ: The Appellant was convicted by the Magistrates Court for the offence of assault causing actual bodily harm contrary to section 245 of the Penal Code on 24th February 2004 and sentenced to imprisonment for 2 years. The assault arose from what may be described as an apparently minor incident, an argument over betel nut fruit but which turned nasty for the victim when this Appellant became angry and assaulted the victim. The Appellant threw punches on the shoulders of the victim and a kick to her right buttock causing her to fall and loose consciousness for sometime. She was rushed to hospital by other women nearby who heard her crying. She suffered muscle sprain and hip dislocation.

In his sentence the learned Magistrate correctly pointed out that those who commit assault on women will expect to be sent to prison. He also pointed out that women need to be protected, that this type of behaviour was unacceptable and imposed a deterrent sentence.

Learned Counsel Mr. Baker for the Appellant relies on a number of grounds for this appeal:

1. that the learned Magistrate failed to take into sufficient consideration the plea of guilty and other mitigating factors;

2. that the learned Magistrate took into account an irrelevant factor relating to a previous assault committed on the victim;

3. that the learned Magistrate failed to take into account the Complainants desire for reconciliation; and

4. the sentence was manifestly excessive in the circumstances.

It is important to bear in mind the circumstances of this offence and the relationship between the victim and the Appellant. This is what can be described as a domestic incident, an assault occurring between a husband and wife. That does not minimise the seriousness of the offence(s) committed but requires the court to look closely at the mitigating factors and to impose a sentence which not only reflects seriousness with which the law views such offences but also the interests of the community and the parties themselves (the victim and the offender). In particular the court should look at the prospects of rehabilitation, reconciliation and any hardships which a custodial sentence may have in their relationship.

A guilty plea in the circumstances of such case very often indicates remorse and prospects of rehabilitation and reform and due discount should be given. By making reference to prior assaults committed by the Appellant but which have not been reported the learned Magistrate took into account a matter which may have affected him in the exercise of his discretion as to the length of sentence to be imposed. For purposes of sentencing, the Appellant should be given credit as a first offender. It is possible the learned Magistrate may have had that in mind but in the absence of records to that effect the benefit of the doubt must go in favour of the Appellant.

In domestic violence cases the courts should be mindful of the effect of a custodial sentence and should always bear in mind that in some cases a short sharp sentence may be as effective in rehabilitating the Appellant and deterring others. Where a desire for reconciliation has been expressed and or the parties have reconciled and are living together again that should have bearing on the length of sentence to be imposed. An overly lengthy sentence may do more harm to their marriage relationship in the long run.

On the other hand, there have been instances in which such assaults have resulted in the death of the opposite spouse and a more serious charge including that of manslaughter or murder imposed. As a weaker vessel, women victims are especially vulnerable and the courts have readily come to their protection by imposing immediate custodial sentences as in this case. The fact the incident occurs in a domestic relationship does not justify or minimise its significance. No spouse should be physically abused or attacked for offences caused within the marriage relationship and parties should as much as possible seek to iron out their differences/disputes in a peaceful or controlled manner without having recourse to physical violence and harm to each other. In such situations, nobody wins and more often than not, both become the loser. Where there are children they can be traumatised or affected by such incidents.

I am satisfied whilst the sentence of immediate imprisonment was appropriate in the circumstances of this case I am not so satisfied the period imposed was appropriate and should be allowed to stand. Had a not guilty plea been entered and the matter went to trial with a conviction, a period of two years may have been justifiable. Where a guilty plea and other mitigating factors have been provided, a further discount of six months should have been given. The sentence to that extent is excessive and ought to be reduced to one of 18 months. The Appellant having served a substantial part of that sentence is entitled to be released on the rising of the court and I so order.

Orders of the Court:

1. Allow appeal.

2. Quash orders of the presiding Magistrate imposing a sentence of two years imprisonment.

3. Substitute sentence of 18 months.

4. The Appellant having served a substantial part of the sentence is to be released at the rising of the court.

The Court.