Regina v Malefo [2012] SBHC 121; HCSI-CRC 330 OF 2011 (1 October 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC NO. 330 of 2011

R

– v –

MALEFO

Hearing Dates: 4-5 September 2012
Verdict Delivered: 7 September, 2012
Sentence Delivered: 1 October, 2012

Mr. R. B. Talasasa and Ms Margaret Suifa'asia for the Crown (DPP)
Mr Ghemu and Ms McSpedden for the Accused

Sentence:
Pallaras J

[1] On 7 September 2012 you were convicted of one count of attempted murder contrary to section 215(a) of the Penal Code. You maintained your innocence in the face of what can only be described as an overwhelming case against you with several witnesses testifying that they had seen you grab your wife and throw her from the bridge. It hardly needs repeating that the crime of attempted murder is one of the most serious offences in the criminal calendar as is evidenced by the maximum penalty provided of life imprisonment.

[2] I have been referred to several cases by both counsel including the case of R v Puluhenue[1] in which Palmer CJ discussed some of the authorities and referred to academic texts[2] relating to sentencing for this offence. The case of R v David O'ofania[3] is often cited as supporting the submission that the range of recorded sentences for attempted murder in husband and wife relationships falls within 5-7 years. It has also been said by this Court[4] that the case of O'ofania represents "the mid-point sentence" for attempted murder in Solomon Islands. In that case a sentence of 6 years was imposed.

[3] According to the author D.A. Smith[5], the cases falling outside the husband and wife category are not so many as to provide a useful guide to typical sentences for them. The author suggests that the upper limit of these types of cases should be around 14 years imprisonment without any indication of what the lower limit should be.

[4] If it is suggested that in cases of attempted murder between husband and wife, a lower sentence should be imposed simply because of the marital relationship, then with great respect to the proponents of that view, I cannot agree.

[5] While the relationship between the accused and the victim is always a relevant consideration to be taken into account when assessing the overall sentence, the relationship of husband and wife is one of many relationships that might exist and it is only one of many factors to be considered. Even then evidence of the nature of a relationship may conceivably work to aggravate or mitigate a sentence.

[6] The Penal Code itself does not differentiate between victims according to their relationship with the offender. Victims of this offence are described simply as "another"[6] and are no more specified than they are in the offence of murder for which they are described as "another person"[7]. Consequently, the same sentencing considerations should apply in assessing the overall criminality of such an offence whether the victim is the wife of the offender or not.

[7] The offence of attempted murder is manifestly a most serious offence. It puts at grave risk the life of the victim who through no good will of the offender, fortunately survives. In this case your intentions were clear from the beginning. You used threatening words to your wife when she first spoke to you on that morning, words which in retrospect can be seen as a clear statement of your intention towards her. It is notable that you paused until she left the relative safety of the roadside and waited until she was in a vulnerable and dangerous position on the bridge before you attacked her.

[8] Your wife did absolutely nothing to provoke you on that morning and, on the contrary, greeted you and spoke to you in a very civil manner. Unlike you, who decided to spend the early morning drinking, she at least was trying to provide for her family by working and earning money to support your children. For that and for her absence from your presence, you almost killed her.

[9] You have not asserted in your unsworn statement or through the submissions of your counsel, that you were not aware of the steel remnants of a Wold War 2 relic directly below the point on the bridge from where you threw your wife. Given your personal familiarity with the area I would have been surprised had such a submission been made. While the inference is almost irresistible that you must have known of the existence of the steel frame below, there is insufficient evidence for me to make a positive finding on that issue.

[10] However, as I have found, your deliberate, inherently dangerous and life threatening act of throwing your wife from the bridge regardless of what may have been below was an act which, when considered in the light of your wife's evidence of the threat you made to her, clearly showed your intention to kill your wife. One can only imagine the terror she must have felt at being hurled from such a height and one can only further imagine the pain that must have been caused to her by the terrible injuries which your actions produced. It is clear from her demeanour and her shuffling gait in court, that even 1 ½ years after the offence she still suffers terribly from the consequences of your conduct and will continue to do so.

[11] The circumstances of this case take it beyond the "mid-point" of sentencing as suggested in the case of O'ofania. That was a case decided many years ago in 1975. A good argument can be made that an authority of that vintage should no longer be as persuasive as it once was and that sentences based on assessments made almost 40 years ago no longer relevantly reflect contemporary community standards or modern sentencing practice.

[12] Whether that be so or not, on any analysis, this is a bad case of its type and the sentence imposed must reflect that categorisation. In R v Puluhenue[8], a recent case of attempted murder, the maximum sentence of life imprisonment was imposed even after pleas of guilty to two counts.

[13] In all criminal cases there are clearly degrees of seriousness based on the particular circumstances to be found in the case. While I do not regard this case to be in the same category as Puluhenue, it is clear from my remarks that I nevertheless judge this to be a serious case of its type. However you are not able to benefit as the accused was in that case, from pleas of guilty to the charge.

[14] I am told that apart from two minor offences some years ago that you are of previous good character. It is said in your favour that you are still a young man at 30 years of age and that you were 29 years of age at the time of the commission of the offence. It is further said that your parents still support you and that your children and other relatives have visited you while you have been in custody. In coming to an appropriate sentence, I take those matters in your favour into account and give whatever weight I can for the scant features of mitigation put to me on your behalf by your counsel.

[15] I also take into account that by your actions you have not only utterly destroyed the relationship with your wife and have caused her significant ongoing pain and suffering, but you have also brought extreme hardship into the lives of your children by depriving them of their father and provider. Significantly, I have not been told that you feel any remorse for what you have done or for the terrible injuries you have caused your wife. I find this attitude to be particularly concerning and consistent with the manner in which you abandoned your wife and refused to help her in any way once you had thrown her from the bridge.

[15] It is the Order of this Court that you be imprisoned for a period of 11 years, such sentence to commence from the date that you were taken into custody for this offence, namely, 18 May, 2011.

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^[1] [2009] SBHC 18; HCSI-CRC 307 of 2008
^[2] D.A.Smith, “Principles of Sentencing” 2^nd Edition, reprint 1982, pp.91-92
^[3] HC-CRC No. 14 of 1975
^[4] R v Bela [2004], SBHC 36; HC-CRC 100 of 2002, per Kabui J at p.37
^[5] D.A.Smith, op.cit.
^[6] “Any person who – (a) attempts unlawfully to cause the death of another;” Penal Code [Cap.26], Section 215
^[7] “Any person who of malice aforethought causes the death of another person by an unlawful act or omission... ....” Penal Code [Cap26], Section 200
^[8] R v Puluhenue op.cit.