Regina v Nelo [2007] SBHC 155; HCSI-CRC 313 of 2007 (26 October 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 313 of 2007

REGINA

-v-

ISSAC NELO

(Naqiolevu, J)

Date of Hearing: 24 October 2007
Date of Judgment: 26 October 2007

For Appellant: Ms Sophia Munamua
For Respondent: Mr M. Unagui

JUDGMENT

1. Naqiolevu J: The appellant was convicted on his plea of guilty to the offence of Assault Occassing Actual Bodily Harm contrary to Section 245 of the Penal Code. The appellant was sentenced to 12 months imprisonment on the 25th July 2007.
   

Grounds

2. The grounds of appeal are
   

1) The Learned Magistrate erred in finding that the kick from a shoe clad foot constituted the use of an offensive weapon thereby producing the imposition of a suspended sentence.

2) The Learned Magistrate erred in regarding general deterrence as the overriding sentencing consideration.

3) The Learned Magistrate placed too little emphasis on the mitigating circumstances personal to the appellant, in particular the Appellants youth.

3. Facts

The facts of the case are that the complaint on the 17th of July 2007 at around 5:45am on her way to work passed the two defendants. One of the defendents followed her and proceeded to slap her on the cheek. The other defendant kicked her on the back causing her to fall down. The defendant then pushed her towards the river side and attempted to take off her trousers.

During the course of the incident one of the defendants kicked the victim on the left side of the forehead.

4. The defendant who was wearing safety shoes at the time kicked her and as a result of the kick the complaint received injuries on her chick and lips. The extent of the injury was outlined in the medical report.

5. Appellant Case

Counsel for the appellant in relation to ground 1 submit that the Learned Magistrate erred in finding the safety shoe used to kick the victim is a heavy shoe and is capable of causing bodily harm and on that basis did not exercise the powers to impose a suspended sentence under Section 44 of the Penal Code.

6. The Learned Magistrate appear to have applied the definition section of Section 84 (b) of the Penal Code which accept that the shoe in which the appellant was wearing at the time is capable of causing bodily harm.

7. The definition Section has no real value, given the section relates specifically to a charge of possession of a weapon within the section.

Counsel ask the court to consider the ordinary meaning of the word "weapons" as it has not been specifically defined under the Penal Code.

8. Counsel ask the court to consider that the provisions of section 44 (2) cannot have been intended to catch any defendant who happens to inflict injury because of his or her attitude when there is no evidence of any intention to use it as a weapon.

9. Counsel on the second ground submit the Learned Magistrate erred in regarding general deterrence, of the overriding sentencing consideration.

10. The Learned Magistrate gave too much weight to the general deterrence factors, against the mitigating factors put before the court. Further he had not given sufficient consideration to the prospects of rehabilitation as part of general deterrence, given these facts.

11. Counsel refer to the authority of Tom Dobu-v-Regina ([1])

12. Council submit the appellant is of a young impressionable age whereby rehabilitation would be more appropriate.

13. On the third ground, counsel submit which this is in relation to the second ground the mitigating factors of the appellant age. Youth Counsel claiming is one of the most effective factors for a sentencing court to take into consideration when considering an appropriate sentence. Counsel refer to the authority of Bati-v-R ([2]) and R-v-Mills ([3]).

14. Counsel ask the court to set aside the sentence and substitute it with a lesser sentence, taking into account the time he has already served. Attentively the remaining portion of the sentence be suspended under Section 44 (2) of the Penal Code.

Crown Response

15. The crown in response submit the sentence is the discretion of the court, and if it consider a lenient sentence then it should impose it. The offence took place on an innocent person and a general deterrence is important. The court has imposed a sentence to reflect the seriousness of the offence.

Counsel submit the use of a shoe is a weapon within the definition of the offence.

16. Counsel cited a PNG authority in support of the submission in the courts sentencing discretion.

17. The Court has taken into consideration the submission by Counsel in support of the application. The submission by the crown on the

nature of the offence and the need to impose a sentence as a general deterrence.

18. The Court however must weigh this with the overwhelming mitigating circumstances which must be considered in favour of the appellant. His youth must clearly have a bearing on an appropriate sentence. In R-v- Mills Batt J, stated "

19. The Court is of the view having taken the facts into consideration and given the appellant has served a period of 3 months imprisonment.

20. The Court will allow the appeal and make the following order.

ORDER

1. Appeal allowed

2. Quash the sentence of twelve months imprisonment.

3. Order the appellant be sentenced to three (3) months imprisonment.
   
4. Order he be released at the rising of the Court.
   

THE COURT

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^[1] CAC, 69 of 2006 [1998] UR 235
^[2]
[3]