Isa v Regina [2012] SBHC 125; HCSI-CRC 508 of 2011 (22 October 2012)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 508 of 2011

DESMOND ISA

-V-

REGINA

HEARING: 27 July 2012
JUDGMENT: 22 October 2012

Allan Tinoni for the Appellant
Andrew Ega Kelesi for the Crown

Palmer CJ.

1. This is an appeal against a total sentence of 5 years and three months for the offences of assault causing actual bodily harm and arson. A sentence of 15 months had been imposed for the assault and 4 years for the arson, both were made cumulative.
   
2. Two grounds have been raised in this appeal; that the sentences imposed were manifestly excessive and that there was an error of law in having the sentences made to be served consecutively.
   
3. The first ground can shortly be disposed of. It is not correct to say that the sentences as imposed of 15 months on the offence of assault causing actual bodily harm and of 4 years for the offence of arson to be manifestly excessive when the circumstances of the offence are taken into account. They fall well within the range of sentences for those offences.
   
4. In the first case, the attack was totally unwarranted, on an unarmed and vulnerable victim, a woman in the presence of her children. She was knocked unconscious and had to be assisted by others to resuscitate her. Fortunately for her, it appears no permanent injury or harm has been incurred and I would presume full recovery has been made. The sentence of 15 months imposed was justified in the circumstances to deter others from behaving in this irresponsible and unlawful manner.
   
5. On the offence of arson, again I find no error in relation to the length of sentence of four years that had been imposed by the learned Magistrate. It was totally unwarranted, deliberate and a sentence of deterrence needed to be imposed to warn members of the public that taking the law into their hands without any hesitation or second thoughts will incur a lengthy sentence of imprisonment. There were aggravating features associated with the commission of the offence, including the use of alcohol and being armed in public. This occurred on the next day and was a continuation of the first offence. He would have had time to think things through and yet did not exercise any form of restraint. This was also the dwelling house of the victims. The sentence was justified in all the circumstances and couldn't even be described as excessive in the circumstances.
   
6. The first ground relied on therefore must be dismissed.
   
7. On the other hand, the second ground relied on that the sentences should not have been made cumulative, to have substance especially in the light of remorse demonstrated by the prisoner through his guilty plea and therefore saving court time and the victims in this case the trauma, hassle and inconvenience of having to testify against the prisoner. As well, he was a first offender, does not have previous convictions and a young person; at the time of commission of offence he was 32 years of age.
   
8. The length of sentence of 4 years imposed in the second offence in my view to be adequately sufficient to reflect the overall severity and totality of both offences and do not necessarily need to be made consecutive; the difference to be insignificant and therefore the proper thing to do in the circumstances would have been to make both sentences to run cumulative to each other.
   
9. Exercising the discretion of this court not only to correct but to review those orders I do so and make both sentences to run concurrently. To that extent the appeal under the second ground is allowed, the orders of the court below making the sentences to run consecutively to be quashed and substituted with the order that they be served concurrently.
   

Orders of the Court:

1. Dismiss appeal against sentences of 15 months and 4 years imposed for assault causing actual bodily harm and arson.
   
2. Allow appeal against the orders to have the sentences served cumulatively.
   
3. Quash orders of the Magistrates' Court to make both sentences cumulative and substituted with the order that they be served concurrently.
   
4. The total sentence to be served accordingly shall be 4 years.
   

The Court.