Ramo v Regina [2014] SBHC 106; HCSI-CRC 236 of 2013 (20 March 2014)

HIGH COURT OF SOLOMON ISLANDS
(Maina, J)

EDMOND RAMO

V

REGINA

Criminal Case No: 236 of 2013

Date of Hearing: 14th March 2014
Date of Judgment: 20th March 2014

For Appellant: B. Ifuito'o
For Respondent: F. Joel

DECISION ON APPEAL

Maina J:

Edmond Ramo appealed against a sentence of 4 years imprisonment for the offence of Grievous Harm contrary to Section 226 of the Penal Code. He pleaded on the charge and was sentenced on 30th November 2011.

The defendant was initially charged with one count of attempt murder but the charge was reduced to Grievous Harm. The offence occurred on 14th September 2011.

The notice of appeal was filed in the Magistrate Court on 2nd December 2011 but the papers were delayed at the Magistrate for about one and half year. The Counsel for the Appellant chased up the papers at the Lower Court to forward to the High Court. It was until 6th August 2013 when the matter was forwarded to the High Court.

Grounds of Appeal

The grounds of appeal are as follows:

1. The sentence of 4 years imprisonment imposed by Learned Principal Magistrate was manifestly excessive;
   
2. The Learned Magistrate erred in law by failing to properly consider the plea of guilty;
   
3. That the sentencing Magistrate erred in principle by failing to take into account the pre-sentence custody period.
   

Brief Facts

The fact presented to the Magistrate Court briefly states as follows:

On the 14th September 2011 at about 9.00pm, the defendant saw the victim telling stories with the boys along the road. Victim's young sister was also present at the time.

Defendant chased the boys away, held the victim and slapped on her mouth. He dragged the victim by the hair along the road and back to the house. He continued to beat her at home.

Defendant said to the victim "Ating hair blo u na makem u enikaen". He asked for scissors but none was there and so he asked for a knife. Defendant grabbed the victim's hair at the middle on her head and then cut it with the bush knife. He cut off the skin on the top front of the victim's head. Blood sprayed out of the victim's head and she fell unconscious.

Grounds 1 and 2

Appeal Grounds 1 and 2 will be dealt with together as they relate to each other. Appellant's counsel also made the submissions together for the two grounds.

Counsel submitted that the 4 years imprisonment was manifestly excessive in all circumstances when considering that facts of the offences, the mitigating factors relevant to the appellant and comparable sentences.

The sentencing Magistrate clearly set out his starting point at 5 years, but fails to properly consider the strong mitigating factors. Magistrate had placed emphasis on the seriousness of the offence and punishment aspect of the crime.

His Lordship Faukona J in Oiofa v Regina HC Criminal Case No. 506 of 2011 has outlined the approach to ascertain the excessiveness of any sentence and importantly, the jurisdictional maximum penalty authorized by law for the class of Magistrate to impose i.e. Principal Magistrate to impose is 5 years imprisonment. He cannot impose a sentence for a single offence for more than five years.

The record shows that the Principle Magistrate reminded himself of the maximum penalty of 14 years for the offence and his limit to impose 5 years imprisonment. Also the consideration of the relevant facts and circumstances of the case and in particular the aggravating factors.

There is no disagreement on the fact nor that was a custodial sentence imposed. But Appellant concern here that no consideration given to the mitigation or related issues by the sentencing Magistrate.

With regard to the starting point to consider sentence, Counsel for the Appellant made reference to other similar cases for comparable sentences purposes and submitted the sentencing Magistrate has set his starting point at 5 years. I do not agree with Counsel's suggestion rather the Principal Magistrate stated his penalty limit as 5 years imprisonment.

There is no fixed starting point of years or months to consider sentences. Rather as His Lordship Mwanesalua J states in the case of Mesepitu v Regina [2006] SBHC 15; HCSI – CRC 601 of 2005 that the offences are allocated to the appropriate sentencing range which forms the normal bracket of terms of years within which the sentence for an offence will be assessed. The terms of years are drawn from the decisions of Magistrates Courts in appropriate cases, the High Court and the Court of Appeal.

The range of sentences, which forms the normal bracket of terms of years for this type of offences is as highlighted in numerous cases referred to by both Counsels. From those cases, it ranges from 3 months to 6 years.

From the record of the Court below, the sentencing Magistrate made entry of all points in note form of what appears to be considered or noted such as the previous conviction and submissions on mitigation and sentencing on aggravation. He also made a note as "treat case on own merit – all authorities taken into account". It may be inferred here that all was taken into consideration by the sentencing Magistrate. And I would also agree although the sentencing Magistrate did not clearly state in the record.

At the outset, what transpires from the record is that the Principal Magistrate made a blanket consideration on all as the fact of the case, aggravating factor and guilty plea, age previous conviction with submissions on mitigation. He then came to the conclusion that 4 years imprisonment as the appropriate sentence for the case. The sentence falls within the normal bracket of terms of years for this type of offences.

The Learned Principal Magistrate did consider all the submissions for sentence, cases cited as the record stated "Treat case on own merits – All authorities, taken into account". The use of bush knife with cut on the head, vital part of the body and exposing the bone on the skull are among the aggravating features, which almost claim the life of the victim.

I do not think that sentence of 4 years imposed on the Appellant was manifestly excessive and I uphold the sentence. Appeal Grounds 1 and 2 is dismissed.

Ground 3

Counsel submitted that the sentencing Magistrate erred in principle by failing to take into account the pre-sentence custody period. There was no direction that time served in custody to be taken into account in serving sentence. Appellant was in custody from 7th September 2011 to 30th November 2011 when he was sentenced.

The record does not state any remarks by the sentencing Magistrate on pre-sentence custody period, but the period was 2 months 23 days.

Pre-sentence custody period should be taken into account by the sentencing Magistrate or a remark on to what consideration was given to it. It is so because of his right to live or move freely unless convicted and sentence.

Ground 3 is upheld and the period to be deducted from the sentence.

An issue that I also need to address is the delay of the appeal. The appeal was filed in the Magistrate Court on 2nd December 2011 but the papers were delayed at the Magistrate for about one and half year. The papers at the lower Court were forwarded to the High Court on 6th August 2013.

During the period from the lodging of the appeal on 2nd December 2011 until now, the Appellant was expecting the result of this appeal. There is no explanation given why it took such long for the papers to come to High Court.

While I appreciate and acknowledge that I have upheld the sentence by the Magistrate it does not waive the expectation or the delay to deliver justice to the appellant for his appeal. I would term this situation as delay of delivering justice to a person expecting justice to be delivered to him or denying the cause of Justice.

The appellant has served about 2 years 4 months and taking into account the pre-sentence custody period and denying the cause of justice to him or delay of the appeal, the appellant now be released from custody at the rise of the Court.

ORDERS OF THE COURT

1. Appeal against sentence dismissed.
2. Ground 3 is upheld.
3. Appellant to be released from custody forthwith.
   

Justice Leonard R Maina
Puisne Judge