Shanel v Regina [2008] SBHC 46; HCSI-CRAC 284 of 2008 (25 September 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No.284 of 2008

BETWEEN:

PETER SHANEL
Appellant

AND:

REGINA
Respondent

Date of Hearing: 15 September 2008
Date of Judgment: 25 September 2008

Mr. Radclyffe for Appellant
Ms Chalmers for Crown

DECISION ON APPEAL AGAINST SENTENCE

Cameron PJ

1	This is an appeal from the Magistrate’s Court against a 9 month sentence of imprisonment imposed for assault occasioning actual bodily harm, and a 2 month term imposed for possession of a weapon in a restricted area without reasonable excuse. It was ordered that both terms be served concurrently, so the effective sentence was 9 months. The appellant was convicted following a trial.
2	The essential facts are as follows. The appellant and his wife were in the car park of the National Referral Hospital in Honiara at about 6 am on 19 August 2007. Mrs. Shanel was standing outside their vehicle when she was kicked by an unrelated person following an exchange of words between the two. Enraged by this, the appellant emerged from the vehicle with a bush knife. He concealed this behind his back and stood waiting for an opportunity to surprise his wife’s assailant. After a few moments he walked up to him and cut his face with the bush knife. At that time Mrs. Shanel was not being threatened. The attack was deliberate and by way of retribution for the assault on his wife.
3	The medical report stated that the victim bled heavily from the wound, which was a 5 to 6 centimetre laceration to his left cheek. The wound penetrated the skin, the sub-cutaneous tissue fats, and severed the anterior part of the muscles which connect to the jaw. There was only a thin layer of tissue separating the external wound from the mouth cavity itself. There is now a scar running from just below the victim’s left ear to the corner of his mouth.
4	The essential ground of the appeal was that the sentence was manifestly excessive, given that the appellant was sentenced as though he was a first offender (one of his two previous convictions being in 1983 and therefore stale and the other post-dating the incident and therefore irrelevant).
5	In developing his submission, Mr. Radclyffe suggested that the learned Magistrate may have felt obligated to impose a term of imprisonment and not a fine for the reason that the maximum fine he could impose was only $1,000.
6	He submitted that such an approach would be a wrong one, as the first question for the Court to decide is whether the defendant should be sent to prison or be fined (see Regina v. Sir Allan Kemakeza, High Court, Solomon Islands, CC 467/2007, 3 September 2008 per Palmer CJ).
7	In other words, the argument was the maximum level of fine applicable should not be taken into account in considering which of a prison term or a fine is the appropriate penalty. Mr. Radclyffe reminded the Court that it is for Parliament to set the maximum levels for fines, and that a Court’s role is to accept that and apply the law as prescribed.
8	The possibility of the learned Magistrate having been influenced by a perceived low maximum level of fine was sufficient, in Mr. Radclyffe’s submission, for this Court to find an error of law in the decision.
9	In advancing this submission, Mr. Radclyffe relied on that part of the decision where the learned Magistrate, having found that a suspended sentence was not available because a weapon was used (see s.44(2) of the Penal Code), states: "This has the consequence that short of imposing a term of imprisonment the only other remedy realistically available is a fine of $1000: such a penalty would in my view be wholly inappropriate."
10	I do not consider the learned Magistrate in his reference to the maximum fine was implying that had it been higher then he may have considered a fine to be the appropriate sentence. The whole tenor of his decision, including the sentencing notes, is that the assault was a serious one having involved a deliberate wounding with a knife causing "a serious injury suffered in a very dangerous place". The fact that he imposed 9 months, imprisonment, which is not an insignificant term, demonstrates that he considered any fine to be wholly inappropriate.
11	In addition, the learned Magistrate had the power to transfer the sentencing to the High Court, which would not have had any restriction as to the maximum amount of a fine, provided it was not excessive. The fact that he chose not to do so points to the learned Magistrate being satisfied that a prison term and not a higher level of fine than he could impose was the appropriate penalty. This ground of appeal fails.
12	Mr. Radclyffe next argued that the learned Magistrate’s finding that the assault contained an element of pre-meditation was against the weight of the evidence. In support of this, he contended that the Magistrate relied on the evidence of Mr. Fulo, a security guard and eye witness to the attack, to convict the appellant. Mr. Fulo had said that the appellant got out of the car and went straight up and cut the victim with the knife, and said nothing about the appellant standing for a moment and concealing the knife prior to the attack. The evidence of a second security guard was to similar effect.
13	It is clear, though, that in referring in his decision to these versions of events the learned Magistrate had not at that point made his findings. The findings came later in the decision - see paragraph 28. He found that the appellant, after getting out of the vehicle and before walking up to the victim and cutting him with the knife, had concealed the knife in order to surprise his wife’s assailant. It is clear that the learned Magistrate accepted the evidence of the eye witness Mr. Patterson, to the effect that the appellant prior to his attack was standing watching what was happening while holding his hands behind his back. From this evidence the learned Magistrate clearly inferred that there was deliberate concealment of the knife by the appellant and that the appellant was waiting for the right moment to attack. These inferences were entirely open to the learned Magistrate.
14	While clearly the Magistrate gave a good deal of credence to what the security guards saw, he was not bound to and nor did he accept their versions as accurate in every respect. He was obliged to consider and weigh all the evidence, and in doing so he clearly accepted the evidence of Mr. Patterson pointing to the concealment of the bush knife and the appellant biding his time before retaliating. This ground of appeal also fails.
15	A third ground was that the learned Magistrate failed to give sufficient weight to the fact that the appellant was provoked by having seen his wife kicked. I consider this along with the broad ground that 9 months’ imprisonment was manifestly excessive.
16	This was a very serious assault with a weapon. As the learned Magistrate stated (para.28), the blow was planned and deliberate and was a pure act of retribution. To describe the appellant’s response to seeing his wife kicked as an over-reaction is to understate its seriousness.
17	The fact that the appellant was provoked is of course a mitigating factor. However, it is clear from the decision that this was taken into account in mitigation. I refer to the learned Magistrate’s sentencing notes, which state (para. 5): "Taking all these factors into account and bearing in mind especially, on the one hand the provocation to which you were subjected, and on the other, the seriousness of the assault which you committed, I pass the following sentences:.."
18	It was submitted in light of the provocation, and the appellant’s personal circumstances including his record of public service, that if imprisonment is appropriate then a short, sharp sentence of 1 to 3 months’ imprisonment would be sufficient. This, it was submitted, would properly bring home to the appellant the consequences of his actions, and be a sufficient deterrent to others who may be of a like mind to take the law into their own hands.
19	In my view the sentence imposed by the learned Magistrate was open to him in the circumstances, and does not fail to reflect the provocation, the appellant’s record of public service, and his personal circumstances. I reiterate that the appellant armed himself with a weapon, concealed it, and in a calculating way, when he could achieve the element of surprise, inflicted a severe wound to the victim’s face. I do not consider 9 months imprisonment to be manifestly excessive in the circumstances.
20	The appeal is dismissed.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge