R v Finau [2021] SBHC 147; HCSI-CRC 436 of 2009 (9 November 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Finau
Citation:
Date of decision:	9 November 2021
Parties:	Regina v Patrick Finau and Kamilo Kole
Date of hearing:	1 November 2021
Court file number(s):	436 of 2009
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendants Kamilo Kole and Patrick Finau are hereby respectively sentenced to 8 months imprisonment. 2. The said respective imprisonment terms are hereby suspended for a period of 12 months. 3. Right of appeal.
Representation:	Mrs Margaret Suifa’asia for the Crown Mr Lazarus Waroka for Kamilo Kole Mr Henry Kausimae for the Patrick Finau
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Regina v Saeniorea & Others [200] SBHC 173, Ufa v Regina [2006] SBCA 15,

IN THE HIGH COURT OF SOLOMON ISLANDS
CCRIMINAL JURISDICTION

Criminal Case No. 436 of 2009

REGINA

V
PATRICK FINAU AND KAMILO KOLE

Date of Hearing: 1 November 2021
Date of Decision: 9 November 2021

Mrs Margaret Suifa’asia for the Crown
Mr Lazarus Waroka for Kamilo Kole
Mr Henry Kausimae for Patrick Finau

Sentence

Bird PJ:

1. On the 3^rd September 2021, Mr. Finau and Mr. Kole were both convicted of the offence of assault causing actual bodily harm. The maximum penalty codified under our laws for the said offence is one of 5 years imprisonment.
2. The court has found that you hit and kicked the deceased on the night of the 18^th November 2008 and caused him actual bodily harm. The court has heard submissions from the crown and your respective lawyers so as to determine the appropriate penalty that the court would impose against you for the offence charged.
3. It is submitted by Mrs. Suifa’asia of counsel for the crown that you were the aggressors in the whole incident. You started the argument based on very minute reasons. The issue of wastage of petrol could have been resolved amicably between you as members of the same family. The deceased was your adopted brother. You were first cousins. What you did to the deceased on the night of incident is unwarranted and uncalled for. A simple argument had turned nasty for your respective families.
4. Another aggravating feature about your actions was the commission of the offending occurred at night time. The court had heard that the scuffle occurred after midnight. The night was dark and even witnesses were unable to see clearly. You might also be unable to see clearly so that you would be able to weigh and control your assault on the deceased. It is also noted that the assault on the deceased was carried out in the company of both of you.
5. On behalf of Mr. Kole, it was submitted by Mr. Waroka of counsel that you are now 30 years old. You have no previous conviction. You are working as a media officer with the Catholic Church. You have attained a graduate certificate from SINU for media course. I have also heard that you have paid compensation to the victim’s family totalling $100,860.00. The good and cordial relationship between your family and the deceased’s family had been restore and peace has been brought back to your communities.
6. I have also noted that the incident occurred in November 2008. There has been a delay in the finalisation of this matter for more than 12 years. This case is a fine example of breach of the provision of section 10 of the Constitution. This case had been hanging over the defendant’s head for more than 12 year. At the time of offending, the defendant was merely 17 years old.
7. On behalf of Mr. Finau, it was submitted by Mr. Kausimae of counsel that you have no previous conviction and you are a person of previous good character. You were 33 years old at the time of incident and you are now 45 years old. You are married with children. You are a Form 3 leaver and you earn your living to support your family from your OBM business. You sometimes sell fish and betelnut to maintain your family financially.
8. I have also heard that you have spent a period of 6 months in pre-trial custody. It is noted with grave concern that there has been a delay of more than 12 years before the finalisation of this matter. I just have to reiterate that a delay of this period is a clear breach of the accused rights under section 10 of the Constitution.
9. In the cases that were relied upon by both the prosecution and the defence, I have noted that the sentencing ranges for the offence of assault causing actual bodily harm was between a period of 4 months to 12 months imprisonment. I have noted and taken into account the discussions by this court and the Court of Appeal in the cases of Regina v Saeniorea & Others [200] SBHC 173, HCSI-CRC 036 of 2004 and Ufa v Regina [2006] SBCA 15, CA-CRAC 023 of 2006.
10. After having discussed the above circumstances in your case, I am of the view that the sentences that the court would impose on both of you would be similar. You have in the company of each other assaulted and caused actual bodily injury on the deceased on the night of the 18^th November 2008. I therefore put your starting point at 6 months imprisonment. For the aggravating features in your case, I will increase that sentence by 8 months. For the mitigating features and especially your respective personal circumstances, I will reduce that sentence by 6 months. For the delay in the finalisation of the case against you, I will suspend that sentence under section 44 of the Penal Code for a period of 12 months.

Orders of the Court

1. The defendants Kamilo Kole and Patrick Finau are hereby respectively sentenced to 8 months imprisonment.
2. The said respective imprisonment terms are hereby suspended for a period of 12 months.
3. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge