Regina v Sitana [2009] SBHC 57; HCSI-CRC 280 of 2008 (19 October 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 280 of 2008

REGINA

V

WALTER HUBERT SITANA

Date of Decision: 19 October 2009

Mr. R. Barry and Ms N. Kesaka for Crown
Mr. D. Hou for Defendant

DECISION ON SENTENCING

Cameron PJ:

1. The defendant Walter Hubert Sitana appears for sentence having pleaded guilty to a charge of causing grievous harm (section 226 Penal Code).

2. The brief facts are that in 1999 it was arranged that the defendant’s daughter be married to the victim Redock Weimanu. That arrangement was made by the respective parents. However, no payment of custom shell money was made. In 2002 the victim returned to the village of the defendant, being Suholo village, Ulawa, Makira Ulawa Province. It would seem that the victim then continued to see the defendant’s daughter alone, and in the absence of any engagement or marriage arrangements. This caused the defendant to demand compensation from the victim, who refused to pay. On 16 September 2002 the defendant went to the house of the victim’s father and was heard to say that if he did not get compensation he would cut off the victim’s head.

3. On 18 September 2002 the defendant sent a third person to try and settle the matter with the victim’s father, but the refusal to pay compensation was maintained. On 19 September 2002 a group from the village, including the defendant and the victim, were instructed to go and cut some sago palm leaves. Both were carrying bush knives. The argument over compensation re-surfaced during this outing, and the victim was heard to ask for compensation over the threats made against him. I accept that during this argument the victim told the defendant that the reason he did not want to pay compensation was that the defendant’s daughter had also been seeing other men in the village. The victim turned away from the defendant, one of the victim’s companions then called ‘knife’, the victim turned back towards the defendant to block the knife, but the knife struck the victim to the face and the neck. The victim fell down unconscious and the defendant ran away.

4. The victim’s injuries were serious. Muscles of the face, jaw and neck were cut. A piece of the periosteum and bone of his mandible was removed. The victim’s tendons, salivary gland and an artery were cut. Some 2 litres of blood were lost. In all, the victim spent some 2 months in hospital as a result of the injuries, and the wound has left a significant scar.

5. The Crown case is that this was a planned and premeditated attack on the victim. It points to the previous threat by the defendant to cut off the victim’s head if compensation was not paid, and invites the Court to infer that thereafter the defendant simply abided his time and when the opportunity presented itself he struck "in anger and revenge".

6. I consider this view of the facts to be a little superficial. What it overlooks is the likelihood that the defendant was incensed by the victim’s claim that the defendant’s daughter was also seeing other men in the village, and that this caused him to lash out. Whether this was the first time the victim had made that claim directly to the defendant is not entirely clear from the facts, the Crown summary of facts suggesting it had been made on an earlier occasion and the defendant’s summary suggesting otherwise. In any event, whether or not it was the first time the defendant had been confronted with this allegation about his daughter, the defence’s assertion that it was said during the argument which led to the attack was not disputed by the Crown and I accept that it was said at that time. I also accept that the claim that the daughter was seeing other men in the village was the primary cause of the defendant lashing out with his knife. While the previous threat by the defendant to cut off the victim’s head if compensation was not paid cannot be overlooked, it does not follow from that threat that what subsequently occurred was premeditated and planned. After all, the very next day following that threat the defendant arranged for a third person to attempt to settle the matter with the victim’s father, illustrating that the defendant was using peaceful means to try and resolve matters rather than resorting to violence. I accept that there was in fact no prior intention on the part of the defendant to cause injury to the victim, and that the attack was a spontaneous reaction to what was perceived by the defendant as a slight to his daughter’s reputation.

7. In its submissions on the appropriate sentence, the Crown relied heavily on the Court of Appeal decisions of R v. Dani and Aidiana [2004] SBCA 16 and R v. Kada [2008] SBCA 9. In fact, the Crown went so far as to submit that Dani’s case was strong authority for the proposition that the bottom of the range for any offence of causing grievous harm (section 226 Penal Code) is at least 4 years imprisonment. Dani’s case involved a house break-in at night involving armed intruders who then attacked the occupant (a knife and a rock were thrown at and struck the victim). The Court reduced the sentence of two of the offenders who had remained outside the house and had not attacked the occupant (but were charged as parties) from 6 years imprisonment for each of the burglary and causing grievous harm offences to 4 years imprisonment. The Court first fixed a starting point for sentences for that type of offending (that being 6 years imprisonment), and then discounted it by 2 years to reach the sentence of 4 years imprisonment. The reduction was for the reason that the two offenders concerned had remained outside the residence and therefore were not directly involved. In fixing the starting point the Court of Appeal stated, p.4:

"Careful consideration of the authorities suggests an appropriate starting point to be six years imprisonment for the burglary and the offence relating to the injury caused to the householder during the course of that offence."

That passage was endorsed by the Court of Appeal in the subsequent case of Kada.

8. Dani’s case, in fixing a starting point for sentences, was concerned with that category of offending involving break-ins to residences in the course of which grievous bodily harm is caused to innocent occupants. There was no attempt by the Court of Appeal to lay down a starting point for general application to any offence of causing grievous harm. This is not at all surprising, as the circumstances of such offending vary to such a degree, and with it the sentences which follow.

9. Kada’s case, which reiterated with approval the statement of Dani as to a 6 year starting point, was itself concerned with a break-in to a residence and a subsequent attack on the residents. It involved offences of burglary and wounding with intent to cause grievous harm (s.224(a) Penal Code), where as a result of the attack during a home invasion one victim was rendered a tetraplegic and the other a paraplegic. The reiteration of the 6 year starting point was in a portion of the decision in Kada dealing with the burglary offences. The Court then went on to say, p.6:

"It follows that it must be a very exceptional case in which an offender who commits offences under s.299, s.300 or s.301 is not subjected to a term of imprisonment."

Those sections of the Penal Code are concerned with burglary and housebreaking where there is an intention to commit a felony or a felony is in fact committed. Thus it is apparent that the guidance provided by the Court of Appeal was directed to this type of offending, and was not intended as a guideline for felonies committed in other circumstances (as is the case here).

10. In the present case the defendant pleaded guilty to causing grievous harm to the victim. The more serious charge of wounding with intent to cause grievous harm (s.224(a) Penal Code), which carries a maximum sentence of life imprisonment, was discontinued by the prosecution.

11. While it is clear that by striking the victim with a bush knife in those vulnerable parts of the body the defendant must have known that serious injury was likely, the offence to which he pleaded guilty does not contain as an essential ingredient an intention to do grievous harm. I therefore approach the matter on the basis that there was no such intention, for to do otherwise would be to fail to recognise the prosecution’s decision to proceed only with the lesser charge of causing grievous harm.

12. As stated, the incident occurred on 19 September 2002, over 7 years ago. As to the delay, I am advised that the defendant was interviewed by police in relation to the incident in October 2002. Apparently information about the incident was then forwarded to the Director of CID in December 2004, but the defendant was not arrested until 7 April 2008. These delays are unexplained. Of course, they have the effect that for years the uncertainty of whether or not the defendant would be charged has been hanging over his head. Also, at a certain point in time no doubt the defendant would have assumed that no charges would be laid, and so conducted his affairs on this false premise. I consider that since his arrest in April 2008 the defendant has been dealt with reasonably expeditiously. I find no breach of section 10(3) of the Constitution, entitling a person following arrest and detention to be tried within a reasonable time. However, for reasons expressed I consider the defendant is entitled to a significant discount as a result of the unexplained delays over a number of years in charging him following his interview in 2002.

13. In its submissions on sentence, the Crown emphasised that deterrence ought to be a significant factor, and in this respect relied on the case of Attorney-General’s References Nos. 59, 60 and 63 of 1998 (Goodwin and Others) [1999] 2 Cr. App R (S.)128. While the need to deter others from like offending is important, in this case the imposition of a lengthy term of imprisonment 7 years after the incident is not likely to deter others from like offending but rather raise questions as to why this matter took so long to be disposed of.

14. I take into account that the defendant is an old man, said to be aged 70 years, and thus with a limited future life expectancy. I take into account that he pleaded guilty to the charge and thus avoided the necessity of a trial. While it was not at the first available opportunity in that the Crown was prepared to reduce the charge and accept such a plea in June 2008, it nevertheless attracts some credit. I take into account that there was a custom settlement arranged by the defendant and his family with the victim’s family, as it shows some degree of remorse on the part of the defendant (notwithstanding his absence from the actual ceremony). I take into account that he was not arrested until nearly 6 years after being interviewed by police in relation to the matter, for reasons unexplained. I also take into account that he has no previous convictions and there is no evidence of any offending since the incident.

15. In the circumstances, the defendant is convicted of the offence of causing grievous harm and I now sentence Walter Hubert Sitana to two year’s imprisonment, and direct that the time already spent in custody in relation to this matter be taken into account.

BY THE COURT

Justice IDR Cameron
Puisne Judge