R v Giadei [2020] SBHC 97; HCSI-CRC 35 of 2019 (23 October 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Giadei
Citation:
Date of decision:	23 October 2020
Parties:	Regina v Selwyn Giadei
Date of hearing:	20 October
Court file number(s):	35 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	The Defendant is hereby convicted on one count of grievous harm contrary to section 226 of the Penal Code [cap 26] The Defendant is hereby sentence to 3 ½ years’ imprisonment The time spent in pre-trial custody is deducted from the total sentence The Defendant is released at the rising of the court
Representation:	Ms. Patricia Tabepuda appearing for Mr. Andrew E Kelesi for the Crown Mr. Lazarus Waroka for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, S.226 [cap 26], S.215 (a) [cap 26], S.224 [cap 26]
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 35 of 2019

REGINA

V

SELWYN GIADEI

Date of Hearing: 20 October 2020
Date of Decision: 23 October 2020

Ms. Patricia Tabepuda appearing for Mr. Andrew E Kelesi for the Crown
Mr. Lazarus Waroka for the Defendant

SENTENCE

Bird PJ:

1. In this case, the defendant was originally charged with one count of attempted murder contrary to section 215 (a) of the Penal Code (cap 26). The alleged offending occurred on the 1^st January 2017. He pleaded not guilty to that charge. A nolle prosequi was filed in relation to that charge on the 30^th August 2017 and a fresh information was filed on the same date with one count of acts intended to cause grievous harm contrary to section 224 (a) of the Penal Code (cap 26). The defendant also entered a not guilty plea. On the 6^th October 2020, a further nolle prosequi was filed in respect of the charge which then led to the filing of the current information on the same date to one count of causing grievous harm contrary to section 226 of the Penal Code (cap 26). The defendant was thereby discharged in respect of the charge of acts intended to cause grievous harm contrary to section 224 (a) of the Penal Code (cap 26).
2. On the 20^th October 2020, the defendant was re-arraigned on the current information and he had entered a guilty plea. Agreed facts and sentencing submissions were made on the same date by both counsel for the prosecution and the defence.
3. According to the summary of agreed facts in your case, you were drinking with friends to celebrate 2017 New Year. Somebody shot a stone at the house where you were drinking with your friends and the stone almost hit a dumb person in that house. The dumb person saw the complainant and walked towards him. When he reached the complainant, he hit him and the complainant fell to the ground. Whilst he was laying on the ground, you kicked the right side of his belly with your right foot. The complainant fell unconscious. When he regained consciousness, he saw you escaped towards the coconut plantation. The complainant then reported the assault at the Henderson Police Station. The police took him to the National Referral Hospital where the complainant underwent an operation for ruptured spleen. He was discharged after one week admission at the hospital.
4. The offence of grievous harm for which you are charged is a felony pursuant to section 226 of the Penal Code (cap 26). It carries a maximum imprisonment term of 14 years.
5. In order for this court to come to a sentence that would suit the circumstances of your case, I must balance the aggravating and the mitigating features in your offending.
6. The prosecution had submitted that there are three aggravating features in your offending. Firstly is the fact that your attack on the complainant was unprovoked. Somebody had thrown a stone at the house you were drinking alcohol in and the complainant just happened to be around the vicinity on that occasion. Without even asking if he was responsible for the throwing of stones, you and another person assaulted him. You have landed a kick on the right side of his belly with your right foot and he fell unconscious. Instead of assisting him, you just escaped.
7. The second aggravating feature is that you were under the influence of alcohol when you committed the offence. The court had expressed time and time again that a number of very serious offences are committed whilst individuals and or groups of people are under the influence of alcohol. In that condition, you are unable to exercise restraint unlike when you are in a sober state. You would have avoided the problem if you have been sober on that occasion. You could have celebrated the New Year in Church but your choice of celebration had led you to your destiny.
8. The third aggravating feature is the seriousness of the injury sustained during the assault. According to the medical report from Dr Basil Siota dated 14^th March 2017, the complainant had sustained a ruptured spleen as a result of the assault on him. Emergency surgery had saved the complainant. He had blood loss of about 80% and he had to be transfused with 5 litres of blood. That indicated that the extent of injury sustained by the complainant was very serious. It could have cost him his life.
9. On your behalf, your lawyer had submitted that you are 29 years old. You had no formal education. Before your incarceration, you were working as a carpenter and earned wages at $1,500.00 per fortnight. You are married with one child. Your wife is unemployed and resides at Henderson area.
10. The court had noted that you have entered a guilty to the amended information. Your guilty plea has save time and resources from conducting a trial. I give you credit for your early guilty plea. Your guilty plea had also shown that you are sorry for your actions. You have now come to terms with your offending and would have by now realised that celebrating an event with alcohol is not the right type of celebrating. We all know, this is a Christian country. You would have been better off if you have celebrated that event in Church with your family.
11. It is submitted that you are a first offender with no previous convictions. I commend you for living a crime free life until that offending. I encourage you to put away the life of alcoholism and commence a life that will bring back the respect, care, love and integrity to you and your family.
12. It is further submitted on your behalf that you have been in custody from the 1^st January 2017 to date. You have spent a total of three years, 9 months and 23 days in pre-trial custody.
13. For the offence of grievous harm, the sentencing tariff in this jurisdiction is one of 3 to 7 years imprisonment depending on the circumstance of each case. I have had the opportunity to read and peruse the cases referred to by counsel for the prosecution and your lawyer and I highly appreciate the veracity of the various cases cited.
14. After having considered all of the aggravating features and the mitigation features in your offending, and having taken into account the sentencing tariffs in the various cases cited by both counsel. I hereby sentence you to 3_1/2 years imprisonment. I further direct that the time spent in pre-trial custody be deducted from the total sentence.

Orders of the court

1. The defendant is hereby convicted on one count of grievous harm contrary to section 226 of the Penal Code (cap 26).
2. The defendant is hereby sentenced to 3_1/2 years imprisonment.
3. The time spent in pre-trial custody is deducted from the total sentence.
4. The defendant is released at the rising of the court.

THE COURT
Justice Maelyn Bird
Puisne Judge