R v Elesia [2021] SBHC 25; HCSI-CRC 94 of 2019 (23 April 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Elesia
Citation:
Date of decision:	23 April 2021
Parties:	Regina v Brain Iro Elesia
Date of hearing:	20 April 2021
Court file number(s):	94 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	1. The defendant is convicted of one count of grievous harm contrary to section 226 of the Penal Code (cap 26). 2. The defendant is hereby sentenced to 2 years imprisonment. 3. The defendant is to be released at the rising of the court. 4. Right of appeal
Representation:	Mr. John Wesley Zoze for the Prosecution Mr. Oxley Limeniala for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] section 215 (a), 226
Cases cited:	R v Olofia [2011] SBHC 83, R v Mana [2006] SBHC 145, R v Banga [2014] SBHC 44

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 94 of 2019

REGINA

V

BRAIN IRO ELESIA

Date of Hearing: 20 April 2021
Date of Decision: 23 April 2021

Mr. John Wesley Zoze for the Prosecution
Mr. Oxley Limeniala for the Accused

SENTENCE

Bird PJ:

1. The defendant, Mr Brian Iro Elesia was originally charged with one count of attempted murder contrary to section 215 (a) of the Penal Code (cap 26). By an amended information filed on the 25^th September 2019, the defendant was indicted with one count of grievous harm contrary to section 226 of the Penal Code (cap 26). Upon being arraigned on the amended information, the defendant had entered a guilty plea. He was thereby convicted accordingly.
2. The offence of grievous harm is a serious form of assault and carries a maximum sentence of 14 years imprisonment. The maximum sentence is normally reserved for the most severe of cases. In any event, the sentences that the court would impose, depend on the facts and circumstances of each offending.
3. In your case, the facts are as follows;

You are the defendant in this case. You are from Orukalia Village, North Malaita, Malaita Province.
The victim is Anthony Dede of Basakana Island, Malaita Province. He was 46 years old at the time of the incident and is a teacher by profession.
On the 23^rd of December 2015, the victim left his home at Basakana Island and went to Auki to do banking as he was a primary school teacher at Basakana Primary School.
On the 24^th of December 2015, the victim returned from Auki via a 3 ton truck owned by someone from Mbitaáma. At that time there were also some passengers in the truck. As they were travelling all of the passengers dropped off and he was the only passenger left in the vehicle.
When they reached Orukalia, the defendant stopped the truck and talked to the driver and asked to go to Maluú. At that time it was around 7 to 7.30pm and it was already dark.
The defendant then jumped into the truck and they continued their journey.
When they reached Fulifoea, the place where the people of Basakana usually drop and get across by canoe, both the victim and the defendant dropped. The truck also turned back when they were dropped off.

4. The defendant helped the victim to unload his belongings from the vehicle. The defendant then asked the victim for a match to light his smoke. The victim gave him his matches and only one handle was in the box. The defendant lit his smoke using that last handle. The victim then started to argue with the defendant about that matches. The victim then punched the defendant.
5. After that punch, the defendant held a piece timber from the ground and hit the victim’s head and chest with it and then he left. The victim was unconscious as a result of the assault. The victim’s wife and children came and assisted him.
6. As per the medical report the victim had a total of 6 injuries as the result of the assault by the defendant. During the time of examination, the general appearance of the victim appeared to be weak and flaccid. There was congestive bleedings from the wounds and nose and his eyes were swollen.

Aggravating features

7. In your case, there is a presence of several aggravating features. The first aggravating feature is the seriousness of the offending. It is obvious from the medical report that the victim sustained 6 injuries on that occasion. Because of the seriousness of the injuries the victim was referred to and was treated at Kilufi Hospital. The medical report stated that the injuries sustained on that occasion may cause disturbance to the intracranial structures of the brain and underlying segments or lobes. That means that the injuries sustained on that occasion could have a long term effect on the victim.
8. According to the facts, the offending occurred at night time. You used the cover of night to attack the victim. The victim could have had the chance to avoid the attack if it was day light because he will be able to see it coming.
9. I have heard that it was the victim who threw the first punch at you. You retaliated and used a piece of timber to hit the victim. The victim had sustained injuries from the attack. The force you used during the attack is not proportionate to the gravity of the victim’s attack on you.
10. I am further told that the victim was a 46 years old teacher. I am also told that you are now 35 years old. That will make you to be about 29 years at the time of offending. It wound have been obvious that you were a young and well-built person compared to the age of the victim. The attack on the victim was absolutely unnecessary and was uncalled for.

Mitigating features

11. In balancing the scale in your favour it was submitted by your lawyer that you have pleaded guilty to the offending at first opportunity. I give you credit for your early guilty plea. Your early guilty plea has not only showed remorse on your part but that you have owned up to your offending and you are willing to face the consequences of your action. Your early guilty plea also save courts time and resources in conducting a trial into the case.
12. I am also told that you are now 35 years old and married with 3 children. You are unemployed but you are a hard working father and able to care for and support your family and your elderly parents.
13. I have heard that a reconciliation ceremony was held between members of your Afoa tribe and members of the victim’s Sava/Basakana tribe over the incident. I have perused and noted the certificate of Recognition dated 22^nd April 2016 to that effect. Attached to that document is another record of compensation paid by your tribe to the victim and his family.
14. The offending occurred on the 24^th December 2015 and you initially paid compensation of 2 × red money with $1,800-00 in cash on the 27^th December 2015. I have also seen from your record that you have also made further payment of cash and kind to the victim’s family with the view to normalising your relationship with them. I commend you for all your efforts.
15. I have noted with concern the substantial delay in the prosecution of your case. The offending occurred on the 24^th December 2015. You were committed to this court on the 8^th October 2018. A request to file information by the high court to the office of the DPP was made on the 5^th November 2018. The initial information was not filed by the office of DPP until the 4^th March 2019. I have noted that there is a period of more than 5 years delay in this case. I have also taken into account that you were remanded in custody for a period of 7 months and 28 days.

Case authorities

16. After having stated the facts together with the aggravating and mitigating features in your offending, I will now discus the relevant case authorities in such offending.
17. In the case of R v Olofia [2011] SBHC 83, the court had stated that the starting point of grievous harm cases is from 1 year to 4 years. In that case, the incident was unproved and the victim was stabbed with a knife. He was sentenced to 2 years imprisonment.
18. In the case of R v Banga [2014] SBHC 44, HCSI- CRC 264 of 2012, the defendant was sentenced to three years imprisonment for the offence of grievous harm. The victim was the defendant’s biological father.
19. I have also perused the other authorities cited by both counsel for the prosecution and the defence and have noted them.
20. For the particular facts and circumstances of your case, and taking into account the case authorities for such offending in this jurisdiction, I hereby sentence you to 2 years imprisonment for the offence of grievous harm.
21. For the reason that the case against you had been delayed for a period of more than 5 years and that you have been remanded in custody for a period of 7 months and 28 days, I hereby cite and rely on the case of R v Mana [2006] SBHC 145, HCSI – CRC 100 of 2003, in this instance.

Orders of the Court

1. The defendant is convicted of one count of grievous harm contrary to section 226 of the Penal Code [cap 26].
2. The defendant is hereby sentenced to 2 years imprisonment.
3. The defendant is to be released at the rising of the court.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge