R v Ofotalau [2021] SBHC 179; HCSI-CRC 508 of 2018 (9 November 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Ofotalau
Citation:
Date of decision:	9 November 2021
Parties:	Regina v Andrew Ramo Ofotalau
Date of hearing:	5 November 2021
Court file number(s):	508 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1 Convict the defendant for the two counts of grievous harm contrary to section 226 of the Penal Code and impose sentences of 6 and 7 years’ imprisonment for count 1 and count 2 respectively. 2 Direct that the sentences are to run concurrent to each other, the total sentence to be served therefore is 7 years. 3 The period spent in pre-trial remand in custody is to be deducted from the total sentence, and noting that a substantive part of the sentence having been served, direct that the defendant be released at the rising of the Court.
Representation:	Mrs. Olivia Ratu-Manu for the Crown Mr. H. Kausimae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 215 (a), S 226 [cap 26],
Cases cited:	R v Roberts and Roberts, R v Olofia [2011] SBHC 83, R v Bosavane [2011] SBHC 7, R v Banga [2014] SHBC 14, R v Tongana [2005] SBHC 98, R. v. John Ishmael Iro HCSI No. 141 of 2019 (unreported); Maelafia v. R [2021] SBCA 8, SICOA-CRAC 43 of 2019 (1 February 2021); R. v. Bitiai [2010] SBCA; COA-CRAC 15 of 2009 (26 March 2010); R. v. Kada [2008] SBCA 9; COA-CRAC 35 of 2007 (18 July 2008); R. v. Folomae [2021] 42; HCSI-CRC 448 of 2016 (10 June 2021).

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 508 of 2018

REGINA

V

ANDREW RAMO OFOTALAU

Date of Hearing: 5 November 2021
Date of Sentence: 9 November 2021

Mrs. Olivia Ratu-Manu for the Crown
Mr. H. Kausimae for the Defendant

Palmer CJ.

1. The defendant was initially charged with two counts of Attempted Murder contrary to section 215 (a) of the Penal Code, to which he had entered not guilty pleas. The matter was then adjourned for listing for trial.
2. Sometime in early September 2021, a proposal was sent to prosecution for a possible plea bargain and which was accepted. A nolle prosequi was entered on the original charges of attempted murder on or about the 4 October 2021 and the defendant discharged. Subsequently an amended information was filed on the same date containing a reduced charge of Grievous Harm contrary to section 226 of the Penal Code (cap. 26).
3. On the 15^th October 2021, the accused was re-arraigned on the two counts of grievous harm to which he entered guilty pleas. The matter was then adjourned for the summary of facts, sentencing submissions and mitigation to be heard.
4. The offence of grievous harm is a felony, that is, a crime of a more serious nature and carries a maximum penalty of 14 years’ imprisonment, reflecting the seriousness with which the court will deal with this type of crime and other than in exceptional circumstances, it calls for an immediate custodial sentence.
5. A custodial sentence is necessary in this type of offence for a number of reasons, to mark the gravity of the offence, to emphasise public disapproval, to serve as a warning to others, and to punish the offender^[1]. The length of the sentence will depend on all the circumstances. Each case is to be considered on its own merits and circumstances and sentences of varying terms of imprisonment are imposed depending on the presence of any aggravating or mitigating factors.

Brief facts

6. The brief facts were that there had been an escape of two prisoners from the Auki Correctional Centre on or about the 1^st January 2017. They were on the run until on the 3^rd January when they met up with a couple who gave them food as they were hungry. They then asked the couple if they could use their garden leaf hut for shelter.
7. When the couple got back to their home, the wife told her sister in law about the two escapees staying at the leaf hut in their garden. The defendant was there and overhead what was said. After finding out where the two escapees were hiding, he got his bush knife and headed to the garden.
8. When he got to the two escapees, he pretended to ask for smoke and engaged them in conversation before attacking them. He cut the leg of the first escapee and when the other one tried to help him and struggled with him, he pushed the knife towards his stomach cutting it and causing part of his intestines to protrude. He dropped the knife and then ran away from them.
9. The injuries were quite serious and both had to spend time recovering at the National Referral Hospital.
10. In relation to the first victim, the cut on his leg measured 7 cm x 4 cm. The x-ray showed a fracture to the distal third of the tibia and fibula bones of the right leg. He spent 2 months and 19 days recovering at the hospital.
11. In relation to the second victim, he had an open abdominal wound with part of the gut (intestine) hanging out of the wound. He spent a total of 13 days in hospital.
12. I note the following aggravating features present in this case.
    • (i) The defendant was armed with a dangerous weapon, a bush knife in his possession and used it to attack the two victims with and causing severe injuries.
    • (ii) There was premeditation involved; it was a deliberate and intentional attack, not a spur of the moment thing. When he heard about the two escapees, he took his knife and walked to the garden in search of the two escapees.
    • (iii) The attack was against two unarmed men and unwarranted. They had been on the run for a couple of days already and therefore were quite weak. They were not in a position to defend themselves or to escape from the Defendant. Instead of doing the right thing and getting others to apprehend them and take them to the nearest police station, or to get in touch with the police to have them apprehended, he took it upon himself to attack them. It is not clear what the motive is, but most likely it would be for revenge.
    • (iv) Both victims sustained grievous injuries and had to be taken to the National Referral Hospital for urgent medical treatment. It could easily have turned out worse for the victims but swift action in getting them to the hospital most likely saved their lives from possible death.
13. I am satisfied the starting point in respect of this case is 8 years. With the aggravating features present in this case, a further 3 years should be added.
14. On the other hand, I note in your favour and give credit for no previous convictions, that this is your first time to appear in court and that you have not been in trouble with the law previously. I note that you are a young man and your prospects for rehabilitation are good. I deduct 1 year for this.
15. I give credit for an early guilty plea, given at the first opportunity, when the charge was reduced to a lesser charge. Your early guilty plea has not only saved precious court time and resources, but is also consistent with remorse. I am sure your time in prison would have allowed you time to reflect on your actions and behaviours, in particular to reflect on the circumstances of offending and to realise that you could have acted differently by helping to get them apprehended instead of attacking them and allowing the process of justice according to law to take its course. By engaging in the conduct that you did, you have caused more trouble for yourself.
16. I deduct 2 years for the early guilty plea.
17. I note the period of delay of some 4 years and 10 months, waiting for his case to be heard and disposed of. This is a long time to have to wait for one’s trial. I deduct another 1 year for this delay.
18. I note numerous case authorities^[2] have been referred to and I thank Counsel for assisting me with these. The sentences imposed for a similar offence ranged from about 2 to 10 years.
19. Taking everything into account, I am satisfied a sentence of 7 years is appropriate in the circumstances. For the two counts of grievous harm, he is sentenced to 6 years for count 1 and 7 years for count 2.
20. On the question whether both sentences should be made to run consecutive or concurrent, while noting that there are two separate offences of grievous harm against two victims, taking into account the totality principle in this case and the fact that both incidents occurred together at the same time, and noting the maximum penalty for the offence at 15 years’ imprisonment, as well as balancing the aggravating and mitigating features in this case, I am satisfied making them consecutive would result in an excessive sentence and a crushing penalty to be imposed. The total sentence to be served therefore is 7 years.
21. I am also satisfied the period spent in pre-trial remand in custody should be taken into account and credited in your favour in relation to this sentence. Noting that you have spent about 4 years and 10 months in custody, and being satisfied that a substantive part of the sentence having been served, I direct that you be released at the rising of the court herewith.

Orders of the Court:

1. Convict the defendant for the two counts of grievous harm contrary to section 226 of the Penal Code and impose sentences of 6 and 7 years’ imprisonment for count 1 and count 2 respectively.
2. Direct that the sentences are to run concurrent to each other, the total sentence to be served therefore is 7 years.
3. The period spent in pre-trial remand in custody is to be deducted from the total sentence, and noting that a substantive part of the sentence having been served, direct that the defendant be released at the rising of the Court.

The Court.

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^[1] R. v. Roberts and Roberts the English Court of Appeal, per Lord Lane CJ.
^[2] R. v. Olofia [2011] SBHC 83; R. v. Bosavane [2011] SBHC 7; R. v. Banga [2014] SBHC 44; HCSI-CRC 264 of 2012 (2^nd April 2014); R. v. Tongana [2005] SBHC 98; R. v. John Ishmael Iro HCSI No. 141 of 2019 (unreported); Maelafia v. R [2021] SBCA 8, SICOA-CRAC 43 of 2019 (1 February 2021); R. v. Bitiai [2010] SBCA; COA-CRAC 15 of 2009 (26 March 2010); R. v. Kada [2008] SBCA 9; COA-CRAC 35 of 2007 (18 July 2008); R. v. Folomae [2021] 42; HCSI-CRC 448 of 2016 (10 June 2021).