Regina v Ufa [2006] SBHC 139; HCSI-CRC 592 of 2005 (14 September 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 592-05

REGINA

V

ECHEL MUDA UFA

Hearing: 13th September 2006
Sentence: 14th September 2006

R.B. Talasasa for the Crown
S. Lawrence for the Defendant

Palmer CJ.:

You were arrested on 11th April 2005 and initially charged with the offence of attempted murder but that this was later changed to murder on 17th April 2005 following the death of Ernest Maneare ("Ernest"), the victim. Yesterday when you came up for arraignment, the charge of murder was withdrawn by the learned Director of Public Prosecutions, Mr. Talasasa in view of the difficulties he faced in proving the causal link to death from the unlawful assault occasioned by you on Ernest on the night of the attack. The charge was then reduced to one of assault causing actual bodily harm contrary to section 245 of the Penal Code. That offence carries a maximum sentence of 5 years in prison.

The brief facts

Sometime around midnight of 27th March 2005 and the early morning hours of 28th March 2005, you had an argument with your wife and started beating her. This was heard by others including Ernest who came out to try and dissuade you from beating your wife up. Instead you turned around and punched Ernest causing him to fall down on the ground. You then kicked him on the neck before turning your attention back to your wife.

Ernest did not receive immediate medical attention after the assault until some three days later when according to the medical report he was complaining of neck pain, headache, fever, and bleeding nose. It appears the symptoms complained of were connected to the injuries sustained from the assault three days earlier and compounded by the fact that he did not receive immediate medical attention. He was treated at the Tatamba Area Health Centre but then discharged at his request after 3 days with treatment continuing by way of oral antibiotics. According to the medical report, at his discharge he was well, able to walk around and eating. Six days later however, he was brought back to Tatamba Area Health Centre and later transferred to Buala Hospital and admitted on 9th April 2005. He was described on admission as unconscious with a high fever and weak lower extremities. He died on 17th April 2005.

Mitigation

I note your age at around 40 years, that you are married and have 5 children; ranging from the oldest who is 25, to the youngest 4. I take into account that you had no prior problems or antagonisms with Ernest prior to this incident and that he was a cousin brother. I take into account the fact that you have no previous convictions as confirmed by the learned Director and give due credit for that. You come from Nagolau village, East Isabel and have very basic formal education. You live in the village and survive through subsistence farming.

I take into account the circumstances of the offence in which you pointed out that you were angry with your wife that night when she did not return with you when you retired from the drinking party and when you sent her message to return. That however does not excuse your attack on Ernest who was trying to help you that night. Many tragic incidents have come before this court where a wife has been killed by her husband as a result of a domestic argument. He was merely trying to save you from unnecessary trouble instead you punched and kicked him. The fact you were drunk does not help you here as it is viewed as an aggravating feature.

I accept what your counsel has said that you are sorry for what has happened. That you accept the consequences of your action that night were wrong and that you have entered a guilty plea to reflect that remorse. I give due credit for that. I accept prospects for rehabilitation are good, that this was a one of situation which occurred on the heat of the moment and that you and your wife have resolved to steer away from the use of alcohol.

On the other hand, this was an unprovoked attack on an innocent and harmless man who was in the context of your case, being a good Samaritan. He was not threatening in any way or acting in a manner that would require such a vicious response from you. That is what makes this attack such a senseless and serious assault. Even when you had floored him to the ground, you did not stop but continued with a kick to the neck area. The head and neck areas are very vulnerable parts especially on a defenceless man lying on the ground.

I have considered the issue of delay but that is not significant in the light of the number of outstanding cases that are still waiting their turn to come before the courts. This case has been brought forward simply because there was an oversight in the listing of other outstanding cases waiting in the queue for a hearing date.

You can count yourself very fortunate that the charge of murder has been withdrawn because local medical facilities and expertise were inadequate to carry out more specific and detailed examination as to the cause of death. The learned medical doctor, Dr. David T. Danitofea conceded this shortcoming and raised doubt as to the direct link between the injuries sustained by the assault and the death of Ernest, hence the withdrawal of the murder charge and substituted with a lesser charge.

I thank Mr. Lawrence, your Counsel for providing me with a number of case authorities connected with this offence. The sentences range, depending on the seriousness of each case, from a mere fine, to bound-over orders, to sentences of imprisonment of up to two years. I would view this assault as falling within the upper range. It entailed the use of alcohol, was an attack on an intervening neighbour or villager who had every right in law to intervene in such situation, and aggravated by the kick. It was a vicious attack. You could have stopped after you felled him with a punch but did not.

To say that the beating of your wife is a private affair is wrong in law, in custom and according to Christian principles which many Solomon Islanders have come to embrace. The community must be encouraged to become involved in such incidents so that in violent domestic disputes, couples learn to resolve their differences amicably, if not without the use of violence, and anyone who seeks to behave in the way you have behaved must expect an immediate custodial sentence.

I have considered carefully the matters raised in your mitigation and come to the view that the appropriate sentence in this case is one of 13 months imprisonment.

The period spent in custody is to be taken into account.

Orders of the Court:

1. Enter conviction.
   
2. Impose sentence of imprisonment of 13 months.
   
3. The period spent in custody (4 months) to be taken into account.
   

The Court.