Regina v Kama [2008] SBHC 100; HCSI-CRC 358 of 2007 (21 November 2008)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Criminal Case No.358 of 2007

REGINA

V

JOSHUA KAMA, JOE FAKANI, PETER KWAITAKA AND PHILIP KORO

Date of Hearing: 14 November 2008
Date of Judgment: 21 November 2008

R. Christensen for Crown
G. Brown for Joshua Kama
A. Fa’asau for Joe Fakani
C. Baker for Peter Kwaitaka and Philip Koro

DECISION ON SENTENCING

Cameron P. J.

1. On 7 November 2008 all four of the defendants Joshua Kama, Joe Fakani, Peter Kwaitaka and Philip Koro were acquitted of a murder charge, following a trial. This related to the tragic killing of Paul Osi on 21 October 2006.

2. However, arising out of the events of that same evening, Joshua Kama and Joe Fakani were found guilty of assault occasioning actual bodily harm, and Peter Kwaitani and Philip Koro were found guilty of unlawfully attempting to strike a person with a weapon with intent to do grievous bodily harm. They appear for sentence on these offences today.

3. The facts are outlined in this Court's decision on liability following trial. I do not propose to repeat them.

4. I draw attention, though, to one or two features of the offending. In relation to the assault occasioning bodily harm, the victim suffered a cut to his forehand for which medical attention was not sought, nor it seems was necessary. It is fair to describe the injury as minor. In relation to the offence of attempting to strike a person with intent to do grievous harm, there was of course no injury.

5. I accept Mr. Baker's submission that both incidents can be properly characterised as fights within a fight, in other words, they were incidents which arose from a much more major confrontation, really a street fight between two opposing groups involving a number of people on both sides, and from which the unlawful killing of Paul Osi arose. But for that killing the charges in relation to the subject offences may never have been laid.

6. I am satisfied from the submissions that all the defendants have a good prospect of rehabilitation. All are young men with no previous convictions and futures – 3 out of 4 of them intend to return to their university related studies once this matter is behind them. All have strong family ties as well.

7. All have spent a significant period in custody awaiting trial on the various charges, including murder that arose out of the confrontation. Joshua Kama spent 7 months 7 days in custody, Joe Fakani 5 months 9 days, Peter Kwaitaka 10 months and 12 days, and Philip Koro 1 month and 18 days.

8. While Philip Koro has spent significantly less time in custody that his co-offender Peter Kwaitaka, he was not the principal offender in the attempted striking, and played a significantly lesser role in that particular incident.

9. I accept the submission that the time the four defendants spent in custody awaiting trial is a sufficient term of imprisonment for the offending involved. I also accept the submission that a sentence of imprisonment on their record of convictions is likely to have ad adverse impact on the university careers of the three defendants who intend to return to those studies.

10. I have decided to defer imposing any sentence on the defendants, on the condition that each of them signs a bond pursuant to section 33 (1) of the Penal Code to appear and receive sentence when called upon to do so for a period of 12 months and in the meantime to keep the peace and be of good behaviour. Assuming they do not reoffend over that period, then that will be the end of the matter.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge