R v Kodo [2021] SBHC 118; HCSI-CRC 328 of 2016 (21 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kodo
Citation:
Date of decision:	21 of October 2021
Parties:	Regina v Enoch Kodo
Date of hearing:	7 October 2021
Court file number(s):	328 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr. Enoch Kodo is sentenced to 3 years imprisonment for the offence of attempted murder contrary to section 215 (a) of the Penal Code (cap 26). 2. The defendant Mr. Enoch Kodo is hereby sentenced to 6 months imprisonment for being in possession of ammunition contrary to section 5 (2) of the Firearm and Ammunition Act (cap 80). 3. The sentences in orders 1 and 2 above are to be served concurrently. 4. Time spent in pre-trial custody to be deducted from the total sentence. 5. Right of appeal
Representation:	Mrs. Margret Suifa’asia for the Crown Mr. Samuel Balea for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] S 215 (a), S 24 (2) Firearm and Ammunition Act [cap 80] S 5 (2)
Cases cited:	R v Bela [2004] SBHC 36, R v Kelly, Runikera v DPP CRAC 14 of 1987

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 328 of 2016

REGINA

V
ENOCH KODO

Date of Hearing: 7 October 2021
Date of Decision: 21 October 2021

Mrs. Margret Suifa’asia for the Crown
Mr. Samuel Balea for the Defendant

Sentence

Bird PJ:

1. On the 20^th August 2021 the defendant, Mr. Enoch Kodo was convicted of one count of attempted murder contrary to section 215 (a) of the Penal Code (cap 26) and one count of in possession of ammunition without firearm license contrary to section 5 (2) of the Firearm and Ammunition Act (cap 80). I now hand down my sentence in your case.
2. This is an unfortunate incident in which the use of firearm was involved. It was an incident that was unnecessary and uncalled for. In our Solomon Islands culture, contentious issues between individuals, family members, tribal members and our various communities at large are normally resolved amicably through proper dialogue and negotiations and the payment of compensation. Those avenues are always readily available to be utilised and facilitated by elders and chiefs. I urge people in conflict with each other not to engage in illegal and unlawful activities but to resolve issues according to our accepted custom and culture.
3. For the offence of attempted murder, the maximum penalty codified under the Penal Code is one of life imprisonment. Attempted murder is a felony and is regarded as very serious because of the presence of an intention to kill. In any event, the maximum penalty is normally reserved for the most serious of cases. This court is empowered under section 24 (2) of the Penal Code (cap 26) to impose a shorter sentence of imprisonment than the life sentence.
4. After having heard evidence in this case, it is submitted by Mrs. Suifa’asia of counsel for the crown that there are several aggravating features in your case. It is submitted that you were the aggressor and armed yourself with a homemade gun. You were in your house when you attacked the victim with the homemade gun.
5. The other aggravating feature is the seriousness of the injury sustained by the victim. It is evident that the victim was seriously injured. A bullet had penetrated his abdomen which was unable to be removed during emergency operation. The victim had to live with that bullet shell for the rest of his life. It was a miracle that the victim had survived his ordeal.
6. According to the evidence by the prosecution witnesses and accepted by the court, you have continued to assault the victim even after you have shot and injured him. That attitude and behaviour indicated that you have no remorse. That type of arrogant attitude and behaviour had also shown that you were able to fabricate evidence to say that the live ammunitions found in your possession belonged to the victim.
7. It is also submitted by the prosecution that your attack on the victim was unprovoked. On that point, I have noted the evidence of both the prosecution and the defence and can find that there was some animosity between your group and the victim’s group. On that note, I will not treat that as an aggravating feature against you.
8. On your behalf it was submitted by Mr. Balea of counsel that you have no previous conviction and that you are a person of previous good character. I commend you for living a good life until this particular offending.
9. I have noted your personal circumstances. You are married with three children. You are separated from your wife and your 3 children now live with your relatives in Honiara. Your children have not been attending school because of financial constraints. You are the sole breadwinner for the family and your elderly mother. You are the head of your tribe in Choiseul. Having stated that, I do not think that your action and conduct on that fateful day when you shot the victim with a homemade gun speaks well of you as the chief of your tribe. Your action was unbecoming of a chief and is highly deplorable. Also as a chief, you have left the issue between your group and the victim’s group unresolved to date. I urge you to make amends to your attitude and behaviour so that you will earn the respect of your family, your community and your neighbouring villages for your own personal integrity as a chief.
10. I have also noted the delay in the finalisation of this matter. The offences were committed in July 2013 at Kinoso Village, Choiseul Province. You were not charged until about August 2015 some two years after the incident. The matter was committed to this court on the 17^th May 2016. The initial information against you was filed on the 11^th July 2016. A not guilty plea was recorded by this court on the 18^th August 2017. For various reasons, the trial of your matter did not proceed until February 2020 after an amended information was filed against you. Also on the issue of delay, this matter was further delayed for more than one whole year because you and your lawyers did not comply with various court direction orders. So for various reasons, this matter has been delayed for more than 8 years. An accused person’s right is protected under section 10 of the Constitution so that an accused who is charged with a criminal offence, must have his case heard within a reasonable time by an impartial court. A delay of more than 8 years is an unreasonable delay and it falls into the face of the constitution. In the case of Runikera v DPP, Criminal Appeal Case No. 14 of 1987, the offence was committed in 1982 surfaced in 1984. It was reported to the police in January 1986 and came before the court in February 1987. His Lordship Justice Ward CJ had stated inter alia that such delay is scandalous and is likely to cause injustice.
11. To further assist the court in determining the appropriate sentence in your case, I am referred to in a number of cases previously dealt with by this court on sentence. In the case of R v Kelly, the defendant was convicted of attempted murder following a contested trial. The victim was struck from behind on his head. The victim was seriously wounded. The accused was sentenced to 6 years imprisonment for robbery and 12 years imprisonment for attempted murder.
12. In the case of R v Bela [2004] SBHC 36, HC-CRC 100 of 2002, Justice Kabui had stated that mid-point sentence for attempted murder in Solomon Islands is one of 6 years imprisonment. Depending on the facts and circumstances of each offending, that sentence can either be increased or decreased.
13. The offence of attempted murder is very serious and in your case, its seriousness in manifested in the unlawful use of firearm on a vulnerable person. You were in your house and you shot a fleeing man with the homemade gun. You have seriously injured him as a result. You could have been charged for his murder if the victim had died from the gunshot wound.
14. Taking into account all of the above discussion, I put your starting point at 7 years imprisonment. For the long delay in the prosecution of this case, I would reduce that sentence by 4 years. I hereby sentence you to 3 years imprisonment for the offence of attempted murder contrary to section 215 (a) of the Penal Code (cap 26).
15. For the offence of in possession of ammunition without a firearm license contrary to section 5 (2) of the Firearm and Ammunition Act (cap 80), I have perused and noted the comparative cases cited by both counsel for the prosecution and the defence. Having considered the principles applied in those cases and the peculiar circumstances of your case, I will impose a sentence of 18 years imprisonment. For the delay as discussed above, I will reduce that sentence by 12 months.

Orders of the court

1. The defendant Mr. Enoch Kodo is sentenced to 3 years imprisonment for the offence of attempted murder contrary to section 215 (a) of the Penal Code (cap 26).
2. The defendant Mr. Enoch Kodo is hereby sentenced to 6 months imprisonment for being in possession of ammunition contrary to section 5 (2) of the Firearm and Ammunition Act (cap 80).
3. The sentences in orders 1 and 2 above are to be served concurrently.
4. Time spent in pre-trial custody to be deducted from the total sentence.
5. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge