Baka v Regina [2013] SBHC 104; HCSI-CRC 335 of 2012 (28 March 2013)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 315 of 2012

TERRY BAKA

-V-

REGINA

HEARING: 28 March 2013
JUDGEMENT: (ex tempore) 28 March 2013

JUDGMENT (ex tempore)

B. Ifuto'o for the Appellant
M. Suifa'asia for the Crown

Palmer CJ.
(Note of judgment)

1. This is an appeal against the orders of the Magistrates' Court issued on 19 September 2012, in which the Appellant was convicted on three offences, assault causing actual bodily harm contrary to section 245 of the Penal Code, and 2 counts of intimidation contrary to section 231(1) of the Penal Code. The offences were alleged to have been committed on 29 January 2008, 28 March 2008 and 15 March 2012 respectively.
   
2. He was sentenced to 9 months for the offence of assault causing actual bodily harm, and 4 months and 6 months for the offences of intimidation. All the sentences were ordered to run consecutive to each other giving a total sentence of 19 months. These were also ordered to run with effect from 16 August 2012, being the date he was re-arrested on warrant.
   
3. I am grateful to Counsels for providing written submissions as these have assisted me greatly to make a decision on this appeal quickly.
   
4. The sole ground relied on is that the learned Magistrate failed to take into account properly the period of custody between arrest and bail. Counsel, Mr. Ifuto'o submits, that the failure to take into proper account the period of pre-trial custody, being about 2 months and 9 days (69 days), which is not disputed, had resulted in a head sentence of 19 months, which is manifestly excessive.
   
5. Unfortunately, I am unable to agree with this submission. The notes of the learned Magistrate's judgment showed clearly he took into account the period of custody of two months. When the total period of 69 days is divided up, it comes to 2 months, 1 week and 2 days. It seems to me that when the learned Magistrate said that he took into account the period of two months, all he was doing was referring to that period of pre-trial custody. He is therefore entitled to decide whether that period of pre-trial custody is to be deducted from the total sentence imposed or to be ignored. The decision to impose a sentence from the period he was re-arrested is one he was entitled to impose and I fail to see anything wrong about that decision, a fortiori to suggest it resulted in a total sentence that was manifestly excessive.
   
6. If the circumstances of offending are considered, the offence of assault causing actual bodily harm for instance was a serious one. A diving torch was used as a weapon, which resulted in the victim being rendered unconscious, one tooth lost and another two teeth at least loose. The victim also incurred bruises to his left eye and cheek bone. The sentence of 9 months was a lenient sentence in the circumstances.
   
7. The other two offences related to threatening behaviour; there were aggravating factors involved in the commission of those offences, including the use of a weapon, a knife in both offences and being under the influence of alcohol.
   
8. Even if the two months period were to be taken into account and the issue of delay and guilty pleas, a total sentence of 19 months cannot be said to be manifestly excessive in the circumstances bearing in mind as well that it was not his first time to appear in court.
   
9. I am not satisfied in the circumstances it had been established that any error of law or on the facts had been demonstrated in this appeal that would warrant the intervention of this court and accordingly the appeal is dismissed.
   

Orders of the Court:

1. Appeal dismissed.
   
2. Orders of the Magistrates' Court upheld.
   

The Court