Saomatangi v R [2021] SBHC 129; HCSI-CRC 322 of 2021 (24 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Saomatangi v R
Citation:
Date of decision:	24 September 2021
Parties:	Daniel Saomatangi
Date of hearing:	8 September 2021
Court file number(s):	322 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:	Magistrates Court
Order:	1. The sentence of 2 ½ years imprisonment imposed by the Magistrate Court dated 16th February 2021 for the offence of grievous harm contrary to section 226 of the Penal Code (cap 26) is hereby quashed and substituted with a sentence of 18 months imprisonment. 2. The sentence of 4 months imprisonment imposed by the Magistrate Court dated 16th February 2021 for the offence of common assault contrary to section 244 of the Penal Code (cap 26) is hereby quashed and substituted with a sentence of 3 months imprisonment. 3. Sentence in order 1 and order 2 are to be served concurrently. 4. I further direct 12 months under order 1 is to be suspended for 2 years on good behaviour. 5. The appellant is to be released at the rising of the court
Representation:	Mr. Michael Pitakaka for the Appellant Miss. Patricia Tabepuda for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Juvenile Offenders Act (cap 14), Penal Code [cap 26] S 226, S 245, S 326 (1),S 244 [cap 26], Constitution S 10 (2) (b),
Cases cited:	Votu v Regina [2002] SBHC 8, Berekame v DPP [1985-1986] SILR 272, R v John Ismael Iro,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 322 of 2021

DANIEL SAOMATANGI

V

REGINA

Date of Hearing: 8 September 2021
Date of Decision: 24 September 2021

Mr Michael Pitakaka for the Appellant
Miss Patricia Tabepuda for the Respondent

RULING ON APPEAL

Bird PJ:

1. The appellant in this case was charged with one count of grievous harm contrary to section 226 of the Penal Code (cap 26), one count of assault causing actual bodily harm contrary to section 245 of the Penal Code (cap 26) and one count of unlawful and wilful damage contrary to section 326 (1) of the Penal Code (cap 26). He pleaded not guilty to all charges and after trial he was convicted of grievous harm, a lesser offence of common assault and unlawful and was acquitted of the charge of unlawful and wilful damage. He was sentenced to 2 ½ years imprisonment for grievous harm and 4 months imprisonment for common assault. It is against that sentence that the appellant had filed this appeal.
2. In his petition filed on the 1^st March 2021, the appellant complains that the sentence imposed by the learned Magistrate in the lower court was manifestly excessive. It is argued on behalf of the appellant that the learned Magistrate failed to take sufficient consideration to his personal circumstances and other mitigating factors. It is further argued that the learned Magistrate overstated and over reacted on some of the important features of the evidence.
3. Mr. Pitakaka of counsel for the appellant argued that none of the cases cited in the lower court dealt with student offenders. In his submission, he had referred to the case of Votu v Regina [2002] SBHC 8, HC-CRAC 019 of 2002, in which this court had allowed an appeal against sentence on a student offender. In that case the court was of the view that the learned Magistrate had committed no error in sentencing the offender to 6 months imprisonment but for the fact that the offender was a student, the learned Magistrate should have sentenced him to a shorter term if he had been made aware of that fact at first instance
4. It was the court’s view in the case of Berekame v DPP [1985-1986] SILR 272 that “it is important to note that appeals on sentence are not normally allowed unless it is evident that the trial Magistrate or Judge had erred by acting on the wrong principle or had overlooked or understated or overstated or misunderstood some salient feature of the evidence”.
5. Having perused the sentence of the learned Magistrate dated 16^th February 2021, I can see no error in his sentencing of the appellant. The maximum sentence on a charge of grievous harm is one of 14 years imprisonment. Grievous harm is a serious form of assault and is classified as a felony under our Penal Code.
6. Nonetheless, the court must also be cautious when sentencing young offenders to a term of imprisonment. The court must balance the society’s view and disapproval to such serious offending and must also take cognisance of the need for rehabilitation of young offenders as the appellant in this case. I do not think a long sentence is a plausible one when sentencing young offenders.
7. I have noted that the appellant was only 19 years old when he committed the offence. He has just gone past the threshold of 18 years in order to qualify and be considered a juvenile under the Juvenile Offenders Act (cap 14). I could see that his youthfulness would have contributed to the offending. I have also noted that he was a student at USP when he was charged, convicted and sentenced.
8. I have also noted the aggravating features as were stated by the learned Magistrate on paragraph 16 of his sentence. I do not disagree with those aggravating features in the appellant’s case. I am however of the view that the learned Magistrate had overstated those aggravating features.
9. In the case of R v John Ishmael Iro Criminal Case No, 141 of 2019, the defendant was originally charged for murder. Upon negotiation, a nolle prosequi was filed on the murder charge and he was charged with grievous harm. Upon a plea of guilty the defendant was sentenced to 2 years imprisonment. A life was lost in that case.
10. It is the court’s view that having regard to the circumstances of the Iro case and that of this case, the learned Magistrate had overstated the effect of the aggravating features in this current case. I have also taken note that the appellant in this case was not formally charged with the offending until the 28^th September 2020, more than eight months after the commission of the offences.
11. Section 10 (2) (b) of the Constitution affords every accused person the right to be informed as soon as reasonably practicable, in detail and in a language that he understands, of the nature of the offence charged. The offences were committed in the centre of Honiara. Witnesses were based in Honiara. Why has it taken the prosecution more than eight months to charge the appellant. There has been a substantial delay caused by the prosecution to commence this proceeding from the start. That action in my view intrudes into the right of the appellant pursuant to s. 10 (2) (b) of the Constitution. That is the appellant’s right protected by the Constitution.
12. Having discussed the above circumstances of this case, I am further of the view that the sentence imposed by the learned Magistrate is manifestly excessive and I am entitled to interfere. The appeal is hereby allowed and the sentence of the lower court is hereby quashed.
13. In passing I wish to say that this court does not tolerate and does not condone what you did to the victims. It is uncalled for and unnecessary. However, because of your youthfulness and taking into account the other salient features discussed in this ruling, I will give you a second chance in life. Please learn from your mistake and the consequences attached and do not reoffend in future.

Orders of the Court

1. The sentence of 2 ½ years imprisonment imposed by the Magistrate Court dated 16^th February 2021 for the offence of grievous harm contrary to section 226 of the Penal Code (cap 26) is hereby quashed and substituted with a sentence of 18 months imprisonment.
2. The sentence of 4 months imprisonment imposed by the Magistrate Court dated 16^th February 2021 for the offence of common assault contrary to section 244 of the Penal Code (cap 26) is hereby quashed and substituted with a sentence of 3 months imprisonment.
3. Sentence in order 1 and order 2 are to be served concurrently.
4. I further direct 12 months under order 1 is to be suspended for 2 years on good behaviour.
5. The appellant is to be released at the rising of the court

THE COURT
Justice Maelyn Bird
Puisne Judge