Tagini v Regina [2016] SBHC 221; HCSI-CRC 258 of 2015 (18 July 2016)

CARLTON TAGINI

-V-

REGINA

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 258 of 2015

HEARING: 13 November 2015
JUDGEMENT: 18 July 2016

The Public Solicitor (Mr. Douglas Hou) for the Appellant
Mr. M. Hauirae for the Crown

Palmer CJ.

1. This is an appeal against the orders of the Magistrates’ Court issued on 20 April 2015, in which the Appellant was convicted on a guilty plea on a charge of unlawful wounding contrary to section 229 of the Penal Code.
   
2. The summary of facts stated that the incident occurred at night time between the hours of 2000 hrs and 2100 hrs. The victim was struck on the forehead with a knife causing him to fall down while the defendant escaped. He sustained injuries (lacerations) to his forehead and was taken to the hospital and admitted. He was hospitalised for a total of six days.
   
3. The first ground of appeal can shortly be disposed of. It seeks to dispute the summary of facts that was presented to the court at the hearing.
   
4. The records of the court however showed otherwise, that the facts were admitted. As well the records of the Magistrate stated that a summary of the facts were tendered to the court.
   
5. In his submissions on appeal however, Mr. Hou disputes the records of the presiding Magistrate, that the facts were admitted. No evidence supporting that fact however has been adduced. It is important to bear in mind that it is the duty of defence counsel where an accused is legally represented, to draw that fact to the attention of the presiding Magistrate from the outset. He did not do that in this case. Had he done that and where it is clear there is a dispute on the summary of facts, court would have been obliged to require evidence to be adduced. That appears not to have been the course of action pursued in that case. Instead what was done was to raise this as a ground of appeal. I am not satisfied it is open to the defendant to raise that issue now when he had opportunity to do that.
   
6. In any event, contrary to what has been suggested, the court was made aware of the events that occurred that night from the perspective of the defendant during mitigation and accordingly the learned Magistrate did have opportunity to consider those matters before deciding on what sentence to impose. This ground has been misconceived and is dismissed herewith.
   
7. On the grounds that the presiding Magistrate failed to take sufficient account of the appellant’s guilty plea and low level of injury these grounds must also be dismissed for I am satisfied the learned Magistrate did take them into account.
   
8. For instance, in terms of the level of injury incurred, the presiding Magistrate said: “I am satisfied that the injury sustained was not a serious kind of injury”. I am satisfied he took that factor into account when considering sentence.
   
9. On the issue of a guilty plea and remote, again the learned Magistrate stated: “I note your plea of guilty. It indicates remorse on your part.” I am satisfied he also took that factor into account.
   
10. On the issue of compensation it does appear the learned Magistrate may have not been prepared to accept that it had been paid without proof. It is important to note that where this is being relied on in mitigation and he is not prepared to accept the material placed before him then he can require supporting evidence to be provided rather than ignoring it. I am not satisfied however that this omission to bear too much on the overall sentence imposed. In any event he did make reference to it in his sentence.
    
11. It is also pertinent to note that the learned Magistrate did take into account the aggravating features in the case and which he considered were relevant to the case. This included the fact that a weapon was used and resulted in an injury to a delicate part of the body, the head. He also noted that the accused was under the influence of alcohol when the offence was committed.
    
12. Ultimately while the sentence imposed was within his range and no error of law or fact has been committed, having regards to the particular circumstances of this case, I am satisfied the sentence of two years was a bit too long and ought to be reduced to one of 18 months. I am satisfied accordingly that the orders of the Magistrates’ Court dated 20 April 2015 imposing a sentence of two years should be quashed and a sentence of 18 months substituted herewith. The defendant having served a substantive part of the sentence is accordingly entitled to be released forthwith at the rising of the court.
    

Orders of the Court:

1. Allow appeal and quash the order of the Magistrates’ Court dated 20 April 2015 for the sentence of 2 years.
   
2. Substitute sentence of 18 months instead for the offence of unlawful wounding contrary to section 229 of the Penal Code.
   
3. The defendant having served a substantive part of the sentence is entitled to be released forthwith at the rising of the Court.
   

The Court.