Regina v Olofia [2011] SBHC 83; HCSI-CRC 317 of 2010 (30 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

FRED OLOFIA

Date of Hearing: 25 August 2011
Date of Judgment: 30 August 2011

Ms. Kesaka for the Crown
Mr. Ghemu and Mr. Cavanagh for the accused

SENTENCE

Apaniai, PJ:

1. The accused, Fred Olofia (also known as Fred Bona Olofia), is charged under section 226 of the Penal Code with having caused grievous bodily harm to Mary Pama ("victim") at Okea, Central Guadalcanal, on or about the 30th May 2010. He was also previously charged under section 215(b) of the Penal Code with the attempted murder of the victim, however, that charge was later withdrawn and the accused then pleaded guilty to the charge of causing actual bodily harm.
   
2. The facts of the case are set out in my ruling handed down on 17 August 2011 in respect of the accused's application for bail. I will not repeat those facts in detail again in this judgment.
   
3. Suffice to say that the injury was, according to the medical report, a serious one as it was a stab to the neck of the victim which could have killed her. Also the injury was one that was caused by the use of a knife at night when the accused was under the influence of alcohol. I might also add that it appears from the material before the court that the accused was the initiator of the row which led to the incident. Furthermore, the incident was unprovoked and happened at the victim's side of the building. This indicates the fact that the accused was the aggressor in this whole episode. There was also a power imbalance in this incident in that the accused was a male while the victim was a female. These are aggravating factors which will determine the starting point in the sentence to be imposed in this case.
   
4. The prosecution has submitted a list of previous convictions of the accused to show that the accused is a person with a propensity to commit offences. There are 10 previous convictions in all with 7 of them having been committed when the accused was between 11 and 17 years old and 3 having been committed when he was 18 years old. Also, 9 of them involved violence of some sort while 1 was a case of stealing. He is now 39 years old, which means that he had been out of trouble for the last 20 years until the time of this offence.
   
5. On behalf the accused, it has been submitted that he has a family to support, that he also supports his father and mother in law, that he is remorseful for his conduct and that he has pleaded guilty to the charge. Counsel for the accused submits that the accused's previous convictions should not be taken into account and that he should be treated as a first offender in the light of the length of time he had remained a "good boy" until this offence.
   
6. A number of cases have also been referred to by counsel in an attempt to indicate the range within which imprisonment terms for the offence of grievous bodily harm have been imposed by the court.
   
7. One of those was R v Dani & Aidiana[1] ("Dani"), in which the Court of Appeal had set the starting point for the offence of burglary at night and causing injury to the house-occupants at 6 years and then reducing it by two years in the light of the mitigating factors.
   
8. Another was R v Sitana[2], in which the accused had caused injury to the victim by cutting the victim on the neck and in the face with a bush knife. The accused got insulted at a statement by the victim that the accused's daughter had been seen with other men in their village. The accused was sentenced to 2 years imprisonment. The accused was 70 years old at the time and had pleaded guilty to the charge. He was also a first offender.
   
9. In R v Tongana & Ramo[3], the accuseds were sentenced to 2 years each for causing grievous harm to the victim. In that case, the deceased had assaulted and injured another person and had tried to escape when he was caught and assaulted. The accuseds were involved in the assault on the victim during which the victim had sustained severe injuries. It was found that that was a case in which the accuseds happened to be at the wrong place at the wrong time and that the incident was a spur-of-the-moment incident, unplanned and unpremeditated.
   
10. In Waraka & Apuitau v R[4], the appellants were convicted of grievous harm after they had pleaded guilty to the charge. The appellants had assaulted the victim, who was a police officer carrying out his duties, and caused him grievous harm. They were sentenced to 12 months imprisonment.
    
11. In R v Chene[5], the appellant appealed against a sentence of 3½ years imposed on him by the magistrate court. The High Court rejected the appeal and confirmed the sentence. In that case, the appellant had attacked his ex-girlfriend out of jealousy and inflicted severe injuries to her scalp, hand, shoulder, arm and neck. The victim was hospitalised for 2 weeks and had to undergo surgery.
    
12. In R v Bitiai[6], the accused assaulted his former de facto wife at the National Referral Hospital by stabbing her under her left breast with a 30cm kitchen knife and further stabbing her twice on the back with the same knife while the victim was breast feeding her child who was admitted to that hospital at that time. The knife had penetrated her abdomen and liver although the wounds on the back were superficial. The High Court took into account the aggravating features of the case as well as the mitigating factors submitted on behalf of the accused and sentenced him to 3½ years imprisonment. On appeal by the Director of Public Prosecutions against the sentence, the Court of Appeal increased the sentence to 4 years and 9 months imprisonment.
    
13. In Saukora v R[7], the appellant stabbed the victim with a knife and caused serious wounds to the victim's arms and the ribs of the victim. The wound in the ribs had penetrated the victim's abdomen. The appellant was sentenced by the High Court to 4 years imprisonment. On appeal, the Court of Appeal reduced the sentence to 3 years.
    
14. There are many more cases of grievous harm which could have been referred to so as to show the range of sentences imposed for grievous harm cases. Nevertheless, it is clear from the ones referred to above that the range of sentences imposed for grievous bodily harm in this jurisdiction is between 1 to 4 years imprisonment. However, in my view, while these cases are a useful guide, whatever sentence is to be imposed in each case must also depend on the circumstances of that case.
    
15. In the present case, there are certain aggravating features which make it a serious case. These have already been mentioned in paragraph 3 above. It is my view that the appropriate starting point in this case, having regard to those aggravating factors, is 3 years. From that starting point, appropriate reductions should then be made in the light of the mitigating factors. These mitigating factors have already been mentioned in paragraph 5 above.
    
16. At this juncture, it is appropriate to address an issue raised on behalf of the accused, that is, the court has been urged to treat the accused as a first offender in the light of the length of time (20 years) during which he had been a "good boy", so to speak, until this offence. I accept that submission. While the previous convictions relate to offences which are of the same character as the present case, it is my view that the past criminal record of the accused is a thing of the past and should not be taken into account in the light of his 20 years of consistent good behaviour. I do not think that this offence is an indication of a deliberate return to crime by the accused. I am prepared to treat him as a first offender and as such he is entitled to some leniency.
    
17. Having regard to the mitigating factors above mentioned and the range of sentences for this type of offence as shown by the cases referred to herein and the fact that he is to be treated as a first offender, it is my view that the accused should be given a reduction of 1 year.
    
18. Accordingly, the accused is sentenced to 2 years imprisonment and I direct that the period already spent by the accused in custody be taken into account.
    

THE COURT

Justice James Apaniai
Puisne Judge

---

^[1] CA – CRAC 011 of 2004, at para. 14.
^[2] CRC No. 280 of 2008
^[3] CRC No. 594 of 2004
^[4] CRAC No. 15 of 2007
^[5] CRAC No. 313 of 2006
^[6] CRAC No. 15 of 2009
^[7] [1983] SILR 275; CRAC No. 1 of 1983