Takule v Regina [2008] SBHC 17; HCSI-CRC 71 of 2007 (11 April 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 71 of 2007

STEPHEN TAKULE

V

REGINA

(Naqiolevu, J)

Date of Hearing: 7th, 13th, 14th, 20th March, 1st April 2008
Date of Sentence: 11th April 2008

For Crown: Ms. M. Chalmers
For Respondent: Mr. T. Wallwork

SENTENCE

Naqiolevu J:

The accused was charged with the following counts:

Count 1: Attempted Murder contrary to Section 215 (a) of the Penal Code.

Count 2: Acts Intended to Cause Grievous Harm, contrary to Section 224 of the Penal Code.

Count 3: Assault Causing Actual Bodily Harm, contrary to Section 245 of the Penal Code.

The Crown offered not evidence in relation to the first count. The accused subsequently pleaded guilty to the offence of Acts Intended to Cause Grievous Harm, contrary to section 224 of the Penal Code and Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code.

FACTS

1. The Crown in its outline of facts submit the victim and his wife were travelling from Honiara to the village of Tasimboko on the 12th of August 2006 to attend a wake.

2. The truck in which the victims were travelling stopped at Gorou to collect some passengers which included the accused. The accused who was 16 at the time when he boarded the truck, was intoxicated and had difficulty sitting upright.

3. The victim at the turnoff to Tasimboko Village alighted from the truck and paid for the fare. The accused who also alighted and during the process in the exchange of money became angry and shouted in language and in pidgin "hurry up, make the truck go" too slow, I’ll shoot you".
   

4. The victims then set off quickly down the Tasimboko road and after 15 minutes notice the accused following them. The victim’s wife stopped and spoke to the accused in her language and told him to go first. The accused replied politely in language, "no you go my place is here".

5. Near the turnoff to the accused house, the accused started a conversation with the victim, the victim’s husband was close by several meters across the road. The accused ask the victim’s wife who was she was with and why he had light skin, to which she replied it was her husband and he is from Temotu.

6. The accused became angry and said in his language, "I’ll cut him with the knife and proceeded to take the knife from his overall. The victim’s wife said to him, why do you want to cut my husband, he’s done nothing wrong. The accused then became aggressive and shouted, "No this is my knife, this my area, is my right".

7. The accused at the same time rushed forward with his knife towards the victims back, whereupon the victim leaned forward to avoid the knife and turn towards the accused. The accused tried again to cut the victim and this time to the chest/rib area. This caused the victim to kick out at the accused arm to try and knock the knife, but the victim was cut through the lower right chin causing injury.

8. The accused continued with his attempt causing the victim to defend himself and at one point when the victim was on the ground he felt the accused slide the knife along the neck causing a cut. The accused continued to attack the victim and he succeeded in getting the accused on the ground. He tried to get the knife off the accused and punched him 4 – 5 times in an attempt to bring about the end of the attack.

9. The victim’s wife was treated for pain, bruising, superficial laceration and tenderness to the head area. The victim was treated for 3 significant wounds inflicted by the accused’s knife. The wound involved a deep laceration to his right forearm, apparently 14 cm long and 5 cm wide, a superficial laceration to his neck apparently 7cm long and laceration to his right leg about 6 cm long.

10. As a result of the injuries the victim was admitted to the surgical ward where the wound to his forearm was sutured. The wound was able to be closed and sutured under anesthesia and the victim hospitalized for 8 days. The victim has suffered ongoing effects for some considerable time after the attack including limitation of function of his head muscles.
    

11. On or about the 19th of August 2006 the accused surrendered himself to police at Tetere after a number of his co-accused had been arrested in the preceeding days. He was formally interviewed and declined to answer any questions and was later charged and remanded in custody. He spent 9 months in custody in relation to the matter.

Mitigation

12. Counsel for the accused in mitigation ask the Court to consider that the plea of guilty in the two counts operates as a complete admission of the elements of the offence. The accused during the day prior to the incident had consumed 5 full strength beers and whilst affected by alcohol, perceived that the victim intended to attack him and this formed the basis for his act. He does not blame the victim for the incident and accepts responsibility for his part. He acknowledge that they were improper acts.

13. Counsel submit the accused has not been able to provide instructions as to his exact age or birth, he has however instructed that he is now aged approximately 17 – 18 years and he has not celebrated his 18th birthday.

14. Counsel further submit that it is accepted by the crown and the accused that he was aged approximately 16 years at the time of the commission of the offence.

15. The accused lives at Selamaraho Village located in North East Guadalcanal with his family, and his parents and sisters and brothers. He is the second youngest child of the family. The accused has the support of his family and they have been present in Court whist he has been on bail.
    

16. The accused counsel submit in late 2006 married his wife Mary from the island of Gela and they have a one year old child.

17. The accused is not currently engaged in employment outside his village, and is actively engaged in assisting his family to maintain cocoa, and in working the family garden, and support his immediate family by this means.

18. The accused was educated at the Koli Community School to form 1 and subsequent to that he has been involved in working with his family in the village. He is a member of the Anglican Faith and trains and plays for the Gilo Soccer team.

19. SERIOUS NATURE OF THE OFFENCE

The offence the accused are charged with are serious and the circumstances leading to the commission of the offence as outlined by the crown are serious. The accused was charged and pleaded guilty to the offence of ACTS INTENDED TO CAUSE GRIEVOUS HARM, contrary to section 224 of the Penal CODE, and ASSAULT CAUSING ACTUAL BODILY HARM, contrary to section 245 of the Penal CODE.

20. The injury sustained by the complainants as outlined by the crown is serious. However no medical report were tendered in support.
    
21. The Crown in its written submission outlined the appropriate penalty that should be imposed given the serious nature of the offence. The need to consider a specific and general deterrence as a means of sending a strong message to the community that this type of offence will not be tolerated.
    
22. The Crown is of the view that a significant period of imprisonment would be appropriate and raise recent comparative sentence by the Court, as a guide, see R-v-Kada ([1]) and R-v-Pese ([2]) The crown further submit that Comparative Sentence from other jurisdiction are not helpful to a Court in the Solomon Islands dealing with matters in a specific cultural context.
    
23. The Court in considering an appropriate sentence therefore has taken into consideration the authorities cited by the crown in relation to the seriousness of the offence and what it considers to be an appropriate sentence. The Court is of the view that the authority cited by the crown in R-v-Kada ([3]) and Pese can easily be distinguished from the circumstances in this case. In Kada the offence was preplanned by the 3 accused and the injury sustained was far more serious than the injuries inflicted by the victims in this case. Furthermore the victim in Kada has had to be aided by the use of a wheel chair and will continue to suffer long term consequences.
    

YOUNG OFFENDERS

24. The Court in considering the age of the accused and the circumstances of the accused, is of the view his real prospect of rehabilitation must be of paramount importance. This is far more appropriate than the deterrent effect of a custodial sentence. The Court is fortified by the authority of The Queen-v-Mills ([4]) which clearly set out what is an appropriate sentence for a young offender, and will adopt the principle of law enunciated.

25. The Court in considering an appropriate sentence is of the view that it must determine whether the accused is a juvenile or a young person within the provisions of the Juvenile Act. The Crown in its enquiry as to the age of the accused submitted a document which clearly does not conclusively determine whether the accused is a juvenile at the time he committed the offence, or indeed at this point of conviction and sentence. Counsel for the accused however maintain the accused was 16 years old at the time of the offence and which means he is now between the age of 17 – 18 years old. Further the Identification and Fact Sheet, which form part of the police brief refer to the accused as age 16 as at 18th September 2006. This was also clearly outlined in the fact sheet tendered by the crown in court.

26. The Court is of the view that having regard to the Juvenile Act, and particularly whether its provisions apply, and the appropriate sentence to impose. The Court having further observed the accused in Court, his physical appearance, mannerism and without making a finding as to age, accept the accused is a young person within the provision and will therefore deal within him appropriately.

Rehabilitation

27. The court is of the view that it must consider the prospect of rehabilitation of the offender as of critical importance and every effort must be made to ensure this is possible. The court whilst noting the crowns contention that rehabilitation in other jurisdiction should not be equated with rehabilitation in this jurisdiction given the fact other jurisdiction are well equipped for the purpose, in terms of institutions specifically catering for such rehabilitation. The Court is of the view that rehabilitation in jurisdictions in developing countries particularly in the Melanesian context with family support, leadership by the Chiefs, the Community and the Church has proven very successful for a long period of time.

28. The Court has carefully considered the nature and seriousness of the offence and circumstances leading to the commission of the offence. The Court has further considered the crown’s submission and the authorities cited in support of its submission.
    

29. The Court has carefully considered Counsel for the accused submission in support of the accused. In particular the guilty plea, his co-operation with the police, the family circumstances, accused culpability, previous conviction, the time spent in custody, and the age of the offender.

30. The Court is of the view that it must consider a sentence that will not only serve justice but ensure the accused is rehabilitated back into the community, given the support of his family, the prospect of his further education, and indeed the genuine desire to make a difference in his life. The court in all circumstances make the following order:

ORDER

Count 1: Accused is acquitted

Count 2 Convict the accused as charged and exercising

Count 3 the provision under section 16 (h) of the Juvenile Act direct he be released on his entering into a bond in the sum of $500 and within a period of two years to appear and receive sentence when called upon.

THE COURT

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^[1] [2007] SBHC 134.
^[2] CRC. 594 of 2005
^[3] ibid
^[4] [1998] 4 VR, 235