Regina v Bosavane [2011] SBHC 7; HCSI-CRC 345 of 2009 (8 March 2011)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case No. 345 of 2009

REGINA

V

FRANCIS BOSAVANE

HEARING: 8 March 2011
SENTENCE: 8 March 2011

T. Walenenea and A. Driu for the Crown
R. Cavanagh and H. Fugui for the Defendant

Palmer CJ.

The defendant, Francis Bosavane has pleaded guilty to the charge of grievous harm contrary to section 224(b) of the Penal Code. This offence carries a maximum sentence of life imprisonment. Such sentence would be reserved for what the court would consider to be the most serious case. This case does not fall within that category.

This is however a serious case all the same and one which has been rightly pointed out warranted an immediate custodial sentence. There were aggravating features which stood out. First, was the fact that the defendant was drunk at the time of commission of the offence. While noting it was not a premeditated attack, the fact he was drunk meant he was more likely to get angry much quicker than had he been in his normal senses. It is accepted that a drunken person has less control over his emotions and any small event could be blown out of proportion. That would have been the explanation for his actions on that day. It meant he lost control and mastery of his actions and acted in a very aggressive and life threatening manner on that occasion.

Secondly, he was armed with a weapon, a bush knife which when used against the person of the victim inflicted quite serious injuries.

Thirdly he attacked the victim on two distinct occasions. Having inflicted the first set of injuries he could have refrained from continuing with the second attack. He persisted and that caused further harm to the victim.

I accept on the other hand in terms of the mitigating factors submitted that there was good recovery by the victim from the injuries sustained and no permanent disability. I accept this is distinguishable in a number of respects from the case of Regina v. Kada[1]. In that case apart from the fact it was pre-planned, involved a group of youths, an invasion of a residential home and being armed, it was such a callous attack which left two victims, a father and son permanently disabled for life. That warranted a severe sentence and was reflected in the decision of the Court of Appeal to allow the appeal of the Crown and to increase sentence to as high as 13 years for one of the respondents.

In Regina v. Bitiai[2], while there was no permanent disability, the Court of Appeal held that the High Court failed to give sufficient weight to the extent of the injury and the intention of the respondent to cause the injury. The respondent and the victim had been living together for sometime but then separated. The victim had then entered into another relationship with another man and become pregnant from that relationship. She then went back to the respondent and commenced living with him. There was then another separation and the victim went back to staying with the father of the child. This angered the respondent and consequently ended up stabbing the victim when she was at the hospital with her baby. The facts showed that there was clear pre-planning on the part of the respondent. He was seen around the vicinity of the hospital on three consecutive days with a knife. The circumstances of the offence in that case are distinguishable.

In this case, I accept submission from Mr. Cavanagh that there was no premeditation. The incident occurred on the spur of the moment as a result of an argument and fuelled it seems from differences from a previous incident between the two brothers. Being drunk on the part of the defendant didn't help.

I give credit for a guilty plea. I note that the defendant is remorseful reflected by his guilty plea, the payment of compensation and two reconciliation ceremonies undertaken with the victim. I accept submissions of Mr. Cavanagh that the risk of re-offending is low bearing in mind that the defendant while in prison has acknowledged the consequences of his action and become involved in Biblical studies and Christian teachings which would help redirect his future when he leaves prison. I also accept submissions of learned Counsel that prospects of rehabilitation in this case are very good.

There is one distinguishing feature in this case and that is the victim and defendant are brothers from the same family. This in my view greatly enhances his prospects of rehabilitation and being accepted back into the community. Having been accepted back into his family is the first crucial step. With the support of his family members, and his new found faith in God, that should allow him to begin life anew in his community.

The principles of retribution, deterrence, prevention and rehabilitation[3] in this case in my view have been complied with. The two prominent principles in his case are that of deterrence and rehabilitation. In terms of deterrence the fact that he has spent almost close to two years in pre-trial custody for the hearing of his case, which would be off-set with any sentence to be imposed, is consistent with the view that such offence would attract an immediate custodial sentence. That principle in this case has been complied with. The other important consideration and which lies heavily in his favour is his excellent prospects of rehabilitation. I accept submissions of Mr. Cavanagh that this offence did not arise from any planned criminal activity or premeditated actions. It arose from an argument between two brothers and spiralled out of control thereafter.

A sentence of three years in my view correctly reflects all the matters that have been raised in submission before me. The defendant is convicted of the offence of grievous harm and sentenced to prison for three years. The period spent in custody is to be taken into account.

Orders of the Court:

1. Enter conviction for the offence of grievous harm.
2. Impose sentence of three years.
3. The period spent in custody to be taken into account.
   

The Court.

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^[1] [2008]SBCA 9; CASI-CRAC 35 of 2007 (18 July 2008)
^[2] [2010] SBCA 3; CASI-CRAC 15 of 2009 (26 March 2010)
^[3] R.v. Sargeant ⁴ (1975) 60 Cr App R 74 at pages 77-78; applied in Didier Marie Edmond Farsy v. Reginam HCSI-CRC 63 of 2004, 24 June 2004.