R v Tarodo [2021] SBHC 120; HCSI-CRC 377 of 2021 (29 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tarodo
Citation:
Date of decision:	29 October 2021
Parties:	Regina Joses Tarodo
Date of hearing:	28 October 2021
Court file number(s):	377 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant is convicted and sentenced to 12 months’ imprisonment. 2. The whole of the sentence is to be suspended for 12 months pursuant to section 44 of the Penal Code. 3. Section 44(6) has been complied with.
Representation:	Mr J Auga and Mr N Tonowane for the Crown Mr J R Brook for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 233, S 44 (1), S 44 (6)
Cases cited:	Regina v Ludawane [2010] SBHC 128, Manai v Regina [2013] SBHC 6, Regina v Ofonau [2017] SBMC 52,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 377 of 2021

REGINA

V

JOSES TARODO

Date of Hearing: 28 October 2021
Date of Decision: 29 October 2021

Mr J Auga and Mr N Tonowane for the Crown
Mr J R Brook for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Joses Tarodo, you have pleaded guilty to one charge of cruelty to a child. On 7 April 2021 after you were committed to the High Court the prosecution presented an information charging attempted murder. On 25 October 2021 the prosecution elected to proceed on the lesser charge of cruelty to a child contrary to section 233 of the Penal Code. The maximum sentence for that charge is 5 years’ imprisonment.

Facts

2. On 14 February 2012 you had an argument with your wife. In the course of the argument you took your 2 year old child and prevented her from breathing by holding her nose and covering her mouth. This action clearly prevented her from breathing and stopped oxygen getting to her brain. It caused her to bleed from her nose, mouth and ears. The child defecated.
3. Your wife managed to stop you and you came to your senses. You apologized to your daughter and assisted her. The child did not receive medical treatment. With the assistance of your pastor the family reconciled. You were then charged. The police charged you with cruelty to a child. When the Crown became involved the charge was increased to attempted murder. The information charging attempted murder was presented on 7 April 2021. There was no High Court circuit until September 2021 then the case was adjourned to this week. Discussions between your counsel and the prosecution led to the present charge replacing the charge of attempted murder and you pleaded guilty.
4. You were remanded in custody for one year and one month.

Aggravating features

5. The prosecution asks me to consider the following as aggravating features:
   1. The age of your child, she being only 2 years old.
   2. The pain and panic the child had experienced.
   100. The child was entitled to protection from you but you breached that trust and responsibility.
   4. The child was vulnerable.
6. The prosecution also submits that the area was remote so no medical help was available. The prosecution submits that an amount of pressure must have been required to cause the damage suffered. Indeed, it may not be known for years the extent to which you may have damaged her brain by depriving it of oxygen. The prosecution says you were reckless, ignoring the consequences until your wife could stop you. The prosecution says that you treated your daughter as object to satisfy your own anger, taking out your frustration on a young child.
7. The prosecution referred to the words of the Chief Justice in Regina v Ludawane [2010] SBHC 128. The Chief Justice reminded the offender that the most important gift any parent can be given is a son or a daughter. He spoke of the parental responsibilities in caring for children.

Mitigating features

8. You have pleaded guilty at the earliest opportunity once the present charge was available to you.
9. You have no other criminal record either before or after this offence.
10. Your counsel has advised the Court that you are remorseful what you have done and have responsibilities as the bread winner of the family.

Starting point

11. In fixing the starting point I keep in mind the need for deterrence, both for the general public and particularly for you should you again be minded to harm those you have a duty to protect.
12. Your counsel has referred to Manai v Regina [2013] SBHC 6 appeal from the Magistrates Court. A sentence of 12 months was imposed.
13. In Regina v Ofonau [2017] SBMC 52 the offender was sentenced to 2 years imprisonment and that sentence was fully suspended. The child was aged 4 and was left out in the bush to starve as the offender was angry with the mother. There had been a delay of 7 years in prosecuting that matter.
14. In your case it is fortunate that the child was not killed. As set out above the risk of death or permanent brain damage must be regarded as high. I regard the offending as serious of its type. I take a starting point of 3 and a half years. For your early guilty plea and previous good conduct I allow a reduction of one year. I regard the time already spent in custody as the equivalent of an 18 month sentence when taking into account remission.
15. I regard the offending as sufficiently serious as to demand a custodial sentence. I impose a sentence of 12 months’ imprisonment. I now turn to section 44(1) of the Penal Code. That section provides:
    • “44. (1) Subject to the provisions of subsections (2) and (3 ) of this section, a court which passes a sentence of imprisonment on any offender for a term not more than two years for any offence, may order-
    • (a) that the sentence shall not take effect during a period specified in the order; or
    • (b) that after the offender has served part of the sentence in prison, the remainder of the sentence shall not take effect during a period specified in the order,

unless during the period specified in the order, the offender commits another offence punishable with imprisonment and a court thereafter orders under section 45 that the original sentence shall take effect:”

16. It is necessary to deter others who make take it on themselves to act as you did. However, the factors I have taken into account in mitigation, in particular the guilty plea, your previous good character and family commitments all persuade me that this is a case where the sentence can be fully suspended. This means you will be sentenced to 12 months’ imprisonment. That sentence will not take effect unless during the next 12 months you commit another offence punishable with imprisonment and a Court orders under section 45 that the original sentence shall take effect. The suspension of sentence takes effect from today.

Orders of the Court

1. The Defendant is convicted and sentenced to 12 months’ imprisonment.
2. The whole of the sentence is to be suspended for 12 months pursuant to section 44 of the Penal Code.
3. Section 44(6) has been complied with.

By the Court
Justice Howard Lawry PJ