R v Tuantseve [2020] SBHC 80; HCSI-CRC 36 of 2019 (4 September 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tuantseve
Citation:
Date of decision:	4 September 2020
Parties:	Regina v George Tuantseve
Date of hearing:	1 and 3 September 2020
Court file number(s):	36 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	(i) That the defendant’s family to conduct the proposed reconciliation ceremony with the victim’s family within 30 days from today’s date pursuant to section 16 (d) & (f) of the Juvenile Offenders Act (cap 14); (ii) The defendant is required to attend that reconciliation ceremony as a sign of respect and remorse; (iii) Confirmation of that reconciliation ceremony to be filed with the Registrar of the High Court by Counsel for the defendant thereafter; (iv) The defendant is hereby committed to the care of his cousin Mr. Francis Cheka pursuant to section 16 (d) of the Juvenile Offenders Act (cap 14).
Representation:	Mrs. Olivia Manu Ratu for the Crown Mr. Daniel Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, S. 215 [cap 26], S. 226 [cap 26], Juvenile Offenders Act, S.12 (2) , S.16 (d) & (f) [Cap14]
Cases cited:	R v Naidi [20219] SBCA 5, R v Rakaimua [1996] SBHC 100

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 36 of 2019

REGINA

V

GEORGE TUANTSEVE

Date of Hearing: 1 and 3 September 2020
Date of Decision: 4 September 2020

Mrs. Olivia Manu Ratu for the Crown
Mr. Daniel Kwalai for the Defendant

SENTENCE

Bird PJ:

1. Mr. George Tuantseve, the defendant in this proceeding was initially indicted with one count of attempted murder contrary to section 215 of the Penal Code (cap 26). He pleaded not guilty to that offending.
2. On the 1^st September 2020, the Director of Public Prosecutions filed a nolle prosequi in respect of the information filed on the 28^th January 2019 and the defendant was hereby discharged. An amended information was filed on the same date and the defendant was these indicted on one count of grievous harm contrary to section 226 of the Penal Code (cap 26). The defendant was re-arraigned on the amended information and he entered a guilty plea.
3. The offence of grievous harm as stipulated under section 226 of the Penal Code (cap 26) is very serious in nature. To manifest its seriousness, the maximum penalty is one of 14 years imprisonment. You must understand that the injury that you caused on the victim is life threatening.
4. In this sentence, I must remind myself that you were a juvenile at the time of your offending. You are still a juvenile at present. In sentencing you, I must have regard for the provisions of the Juvenile Offenders Act (cap 14).
5. The facts of your case as follows

You were 14 years old at the date of offending. On Saturday the 2^nd June 2018, between 2am to 4am, you were with the victim, Mr. Russell Wiri. You were planning to go to Mavunina Village, Marasa area, West Guadalcanal, to attend a dance. At the material time, you were holding a cocoa pruning knife.

On your way, you reached Chingeresere Village and rested at the victim’s cousin’s house. You were then told that the dance was cancelled. You continued to hang around and smoked marijuana that you got from Tapura Village.

About midnight, you decided to return home. You were still in possession of the pruning knife. On your way back and about 200 meters from Guluvoa River, you told the victim that you were not feeling well as you were caught by black magic (vele). The victim held and shook your body. He told you for both of you to return to Guluvoa River so that he could help you with some water.
You refused to go back to the river and continued to walk on ahead.
After walking for a further 200 meters, you turned back and struck the victim with the pruning knife on his stomach. After that you turned around and escaped. The victim ran after you but could not catch up. His intestines were protruding from the wound and so he ran to Tasali Village and sought help. He was taken to Tangarare Clinic by boat and was later taken to Visale where he was picked up by an ambulance to the National Referral Hospital. He was admitted at the hospital and went through an emergency surgery. He was discharged from hospital on the 9^th June 2018.
You were arrested on the 16^th June 2018. You were remanded at the Rove Correctional Center overnight and were released on the next day.

6. In your case, I have heard submissions from both Counsel for the prosecution and Counsel for the defence. I am told that there are several aggravating features in your offending. They include the following:
   1. You were armed with a dangerous weapon at the material time. Before and during the incident, you were armed with a cocoa pruning knife. You used that pruning knife to attack the victim.
   2. The victim was unarmed during your offending.
   100. The offending occurred at night time. You used the cover of night to carry out an attack on an unarmed person. It was dark and the victim could not have seen that you intended to stab him with the knife.
   4. The attack on the victim was unprovoked. There was no prior argument between you and the victim. In view of that, the victim could not have foreseen that you intended to use the knife on him and was not in any position to defend himself. In fact, the victim was the one who tried to help you when you claimed to have been attacked by ‘vele’, (black magic).
   5. The court had noted that you were under the influence of an illicit drug (marijuana) at the time of offending. In order for me to understand some of the effects of the use of marijuana, I have read an article about the effects of drug abuse and addiction by the Gateway Foundation. What I have gathered from that article is that the use of illicit drugs including marijuana causes both short-term and long-term behavioral problems. The effect of the use of marijuana would cause paranoia and hallucinations. When you suffer from paranoia or hallucinations, you are no longer in control of your normal instincts. With paranoia, you will have an irrational suspicion of others and you would feel that someone is out there to get you. When you have hallucinations, all your actions are controlled by voices in your brain. The voices could command you to harm yourself or to harm others.
7. Another aggravating feature in your offending is that you left the victim after having injured him and fled the crime scene. The victim could have died. You should have assisted him or could have sought assistance for the victim. You fled and told no one about the incident.
8. On your behalf, it was submitted by your lawyer that you are a first time offender. You have no previous conviction. I give you credit for that.
9. You have pleaded guilty to your offending at first opportunity. Your early guilty plea not only shows remorse on your part but it also shows that you have come to terms with your offending and the likely consequences that would follow as a result.
10. Your early guilty plea saves court’s time and resources in conducting a full trial in this case. I have also noted that there is no ill feeling between yourself and the victim.
11. In your favour, it is also noted that since the commission of this offending in 2018, there was no other subsequent offending in your part. I also do not think that you have posed any risk of re-offending.
12. From the summary of agreed facts, there is no motive for your offending. On that note I intend to remind you of the explanation contained in paragraph 6 (e) above. From the explanation above, you would have been able to now recall what had transpired in the early hours of the 2^nd June 2018. It might be possible that because it was your first time to use marijuana, you might have had experienced a feeling of either or both of paranoia and hallucination. With the combination of those two conditions, you would not have known what you did on that occasion.
13. On your behalf, I have received and perused the juvenile social enquiry report dated the 3^rd September 2020 and have noted the contents therein. With particular reference is the fact that you have told the social welfare officers during an interview with them that you did not know anything until you realised that the victim was injured. That explanation from you would confirm the effect of the use of marijuana on that occasion.
14. I have also noted from the juvenile report that you are being taken care of and looked after by your cousin, Mr. Francis Cheka. Mr. Cheka lives with his family at Lengakiki in Honiara. Mr Cheka also informed the social welfare officers when interviewed that he and his wife are willing to take care of you. You have been living with their family for the past two years. They have noticed your change of behaviour and attitude. They also intend to further your education by sending you to attend literacy school and later to enrol you in any RTC School in the country.
15. The report had also confirmed that your parents are preparing a reconciliation ceremony (chupu) with the victim’s family at the end of this month. The said chupu is worth $15,000.00. Both parties have agreed to that reconciliation ceremony.
16. I have noted that you were only 14 years old at the time of offending. You are now 16 years old and still a young person. You commit the offending after taking marijuana. You have regretted what you did to the victim. You have made an effort to rehabilitate yourself and according to the report referred to above, you have made a change for your own betterment.
17. I have taken into account that there is a plan for your further welfare that your guardians have in place for you. I have also noted in the report that you have stopped taking drugs. I must encourage him to continue living the life that you are now living. From the explanation on the use of illicit drugs like marijuana, you are also encouraged never to go back on that track again. It does not take you anywhere but creates more problems for you. I have also noted the delay of about 2 years in your case.
18. I have taken into account the case authorities referred to by both Counsel for the Crown and your lawyer. I have noted that the sentencing range for the offence of grievous harm is one of imprisonment of between 2 to 4 years.
19. Notwithstanding the above, you are a juvenile and I am duty bound to impose a sentence on you pursuant to the provisions of the Juvenile Offenders Act. By virtue of section 12 (2) of the Act, no young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way specified in section 16. I am assisted by the comments of the Court of Appeal in the case of R v Naidi [2019] SBCA 5, CRAC 45 of 2018 in that regard.
20. In this sentencing, I am also guided by the case authority of R v Paul Rakaimua [1996] SBHC 100- CRC 24 of 1994. In that case, the defendant was 12 years old and he was convicted of the offence of manslaughter. The court ordered payment of compensation and committed the offender to the care of his grandparents.
21. In this case and after considering all of the above circumstances, I hereby make the following orders:
    • (i) That the defendant’s family to conduct the proposed reconciliation ceremony with the victim’s family within 30 days from today’s date pursuant to section 16 (d) & (f) of the Juvenile Offenders Act (cap 14);
    • (ii) The defendant is required to attend that reconciliation ceremony as a sign of respect and remorse;
    • (iii) Confirmation of that reconciliation ceremony to be filed with the Registrar of the High Court by Counsel for the defendant thereafter;
    • (iv) The defendant is hereby committed to the care of his cousin Mr. Francis Cheka pursuant to section 16 (d) of the Juvenile Offenders Act (cap 14).

Orders of the court

THE COURT
Justice Maelyn Bird
Puisne Judge