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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Case No: 285 of 2008
DOREEN NOKALI
V
REGINA
High Court of Solomon Islands
(Naqiolevu, J)
Date of Hearing: 18th November 2008
Date of Ruling: 5th December 2008
For Appellant: Mr. E. Cade
For Respondent:Mr. M. Coates
APPEAL
Naqiolevu J.
The Appellant on the 11th of August 2008 was convicted by the Central Magistrate Court following her plea of guilty to the offence of Unlawful Wounding and sentence to a period of 4 months term of imprisonment.
1. Grounds of Appeal
The grounds of appeal are
3. the court erred when it regarded a number of matters as aggravating features.
Respondent Submission
2. The crown in response to the grounds of appeal is of the view that the sentence accurately reflects the criminality of the matter in all circumstances. The crown consider while the victim may have approached the appellant with a scrapper, the action of the appellant warrant a full time custodial sentence. The appellant had pursued the victim with a knife and even when she fell, attacked her with the knife and after being disarmed she armed herself again.
3. The crown in relation to ground 2 is of the view that the Learned Magistrate has not considered all the surrounding circumstances of the offence. In addition it appears he may have confused the issue of a guilty plea on the basis of excessive self defence with the complete defence of self-defence. This confusion has led to the mistaken belief that the appellant was traversing the plea rather than entering a plea of guilty to the offence and all its elements on the basis of excessive self-defence.
4. The crown is of the view that the Learned Magistrate has failed to consider all the surrounding circumstances of the case and accepts the appeal is satisfied, but consider the sentence of 4 months is appropriate in the circumstance.
5. The crown in relation to ground four submit the Learned Magistrate is simply stating the position of the offence and that it carried a maximum penalty of five years. The use of the offensive weapons is an aggravating feature as the appellant armed herself with a bush knife.
6. There had apparently been no reconciliation and the appellant would not be entitled to the benefit applied by way of mitigation, for contrition or remorse.
7. The Learned Magistrate was entitled to take into account the impact of this attack had on the victim.
RELEVANT FACTUAL CIRCUMSTANCES
8. The appeal is clearly on the basis that the sentence of 4 months immediate custodial sentence is excessive, given the lower court did not take relevant factual circumstances into consideration which could reduce the culpability of the appellant.
9. The court is of the view that the Learned Magistrate whilst has taken some factual circumstances into consideration in his reason for sentence, he has not addressed the issue fully.
COURT NOT FUNCTUS OFFICIO
10. The court consider that the Learned Magistrate is not functus of his judicial function until he pronounced his sentence, after considering any mitigating circumstances. ([1]) In the Case of Jovanovic-v-The Queen, the court said in a joint judgment,
"The position at common law regarding summary offence is more straight forward. Once a defendant had been "convicted" and "sentenced" the court is regarded as being functus officio irrespective of whether the convictions and sentence has been entered in the records of the court" Underlining nine
11. The court is of the view that the Learned Magistrate after being informed by counsel of the further factual circumstance as diposed in the affidavit ([2]) of Ms. Anderson, the court consider the Learned Magistrate is "not functus" of his powers and of "the proceeding". At that stage of the proceeding he could have called for submissions on mitigation by both counsel to assist him in his deliberation.
AGGRAVATING FEATURES
12. The court is of the view that whilst the Learned Magistrate has properly taken the aggravating circumstances into consideration, he has failed to balance it with the overwhelming mitigating factors which are clearly a fundamental principle of law.
13. The Learned Magistrate in his sentencing remarks said that the charge itself is ranked very serious because it is a felony, further the use of the offensive weapon to cut the victim, the injuries sustained, the intention to inflict further injury and possibly more serious harm, and the second attack and no apparent reconciliation.
14. The court is of the view that the Learned Magistrate in considering the circumstances of the offence must balance them with the mitigating circumstances. The guilty plea which was entered at the first opportunity which clearly reveal the appellant is remorseful of her action. ([3]) In Cameron-v-The Queen, Guadron, Gummow and Callinan JJ said (at page 346).
"The issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity".
15. The appellant is a first offender and as commented by the Learned Magistrate, "has no previous conviction and previous good behaviour", and "law abiding citizen, remorseful and embarrassed to even come to court".
16. The court is of the view that these circumstances should alert the Learned Magistrate to consider, given the unusual circumstances, other sentencing options available to him rather than an immediate custodial sentence.
17. The court consider the Learned Magistrate has quite properly taken into consideration his powers under the provision of Section 44 (2) of the Penal Code, however, he has other sentencing options available to him to impose that would serve justice in the circumstance.
CUSTOMARY RECONCILIATION
18. The court has considered the affidavit of a ([4])Thomas Melive a Paramount Chief of the Eastern Island Province who conducted the reconciliation ceremony between the appellant and the victim which was undertaken after the case was disposed of. The parties shook hands hugged and kissed and exchange money.
19. The court is of the view that customary reconciliation is part of the law in this country and it must be taken into consideration as a mitigating circumstance. The court note however that whilst it was not before the Learned Magistrate, as diposed ([5]) by the appellant that she and her family did not consider it appropriate at the time of the court proceeding.
"In our view, the making of reparation is an important factor in the present circumstances and it should be acknowledged in a positive way in the sentencing process standing alone it should not be regarded as decisive, but along with the other matters which have been mentioned, it justifies an order for immediate release"
21. The court is of the view that the Learned Magistrate has erred in not properly considering the sentencing principle available to him by ordering an immediate custodial sentence, which clearly is excessive in the circumstances.
22. The court in all circumstances allow the appeal and quash the sentence imposed by the Magistrate Court on the 11th of August 2008 and substitute the following sentence.
Appellant is ordered to be bound over in the sum of $1000, to be of good behaviour for a period of eighteen months.
ORDER
1) Appeal Allowed
2) Sentence imposed by the Magistrate Court of the 11th of August 2008 is hereby quashed.
3) Sentence substituted with:
Appellant bound over in the sum of $1000 to be of good behaviour for a period of eighteen months.
THE COURT
[1] (1999) 92 FCR 580
[2] Affidavit of Ms Kylie Anderson, sworn on the 14th of November 2008
[3] (2002) 209, CLR, 339
[4] Affidavit of Thomas Melive, disposed on the 18th November 2008
[5] Affidavit of Doreen Nokali, sworn on the 17th of November 2008
[6] [2000] SASC 106; (2000) 76 SASR, 404
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URL: http://www.paclii.org/sb/cases/SBHC/2008/93.html