R v Ganisifale [2021] SBHC 95; HCSI-CRC 477 of 2021 (14 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Ganisifale
Citation:
Date of decision:	14 September 2021
Parties:	Regina v Fenley Kwaofola Ganisifale
Date of hearing:	3 September 2021
Court file number(s):	477 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer CJ
On appeal from:
Order:	1. Enter conviction for the offence of attempted murder contrary to section 215 (a) of the Penal Code. 2. Impose sentence of 5 years imprisonment. 3. The period spent in custody to be deducted from the sentence of 5 years.
Representation:	Mr. J W Zoze for the Crown Mr. G Male for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Blackstones Criminal Practice 1999 page 120, Penal Code S 215 (a)
Cases cited:	Regina v Malefo [2012] SBHC 113, R v O’ofaunia, R. v. Brewer [1987] 9 Cr. App. R (S.) 44, R. v. Ngoah [2021] SBHC 11, R v Tuzi [2012] SBHC 124, R v Bela [2004] SBHC 36

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 477 of 2021

REGINA

V

FENLEY KWAOFOLA GANISIFALE

Date of Hearing: 3 September 2021
Date of Sentence: 14 September 2021

Mr. J W Zoze for the Crown
Mr. G Male for the Defendant

Palmer CJ.

1. The defendant, Fenley Ganisifale has pleaded guilty to a charge of attempted murder contrary to section 215 (a) of the Penal Code.
2. This is a very serious charge reflected in the maximum sentence of life imprisonment which can be imposed by the court in extreme cases, depending on the circumstances of each case and the presence of aggravating and mitigating features.
3. There are varying degrees under which those charged with this offence, the courts have dealt with and imposed varying sentences, depending on the seriousness of the facts of each case and level of culpability^[1]. Each case should be dealt with on its own merits and appropriate sentences imposed. Cases of similar facts are often treated in a similar way and there is good basis for comparison of cases to be considered when making submissions for sentence.
4. I thank Counsel for providing written submissions and case authorities to assist the court reach an appropriate decision in respect of this case.
5. In the case of R. v. O’ofaunia^[2], the learned Chief Justice then Bodilly CJ, stated that for attempted murder charges between husband and wife, the mid-point sentence should be within the range of 5 to 7 years. This was further discussed and endorsed in R. v. Bela^[3]. In R. v. Malefo^[4], Pallaras J. took the view that the mid-point sentence range was out of date and should be reviewed. He had imposed a sentence of 11 years in that case of a husband assaulting his wife.
6. On appeal, the Court of Appeal saw no reason to depart from the guidelines set in O’ofaunia. It accepted the starting point of 7 years, taking into account the facts of the case and noted the actions of the defendant in deliberately refusing to provide any assistance to the victim after she had fallen over and seriously injured herself. She was fortunately assisted by another relative and survived to tell her story. The sentence of 11 years was upheld.
7. The Court at paragraph 15 of Malefo said:
   • “[15] Attempted murder is a terrible offence and properly carries a maximum penalty of life imprisonment. Unlike murder in which conviction may arise from an intention less that an intention to kill, the intent in attempted murder is to kill and nothing less. Whilst the charge means that the intended attack has been unsuccessful, the fact that it was the sole intention of the person charged emphasises the gravity of such a conviction.”
8. After stating the position that the starting point for attempted murder is the upper level of the 5-7 years suggested in O’ofaunia, it continued in paragraph 16:
   • “Mitigating factors may reduce and aggravating factors increase that sentence in the usual way but with the caveat that the gravity of the intention to kill means that matters personal to the convicted person should have little value in mitigation and will only be of assistance in exceptional circumstances.”
9. In R. v. Brewer^[5], Stephen Brown LJ, reiterated the point that the gravamen in an attempted murder is the proof of an intention to kill:
   • “The problem with an offence of attempted murder is that unlike the full offence of murder it involves proving a deliberate, settled intention actually to kill the victim.”
10. This is what separates out the offence of attempted murder and the seriousness with which it is viewed.
11. That is what he pleaded to in this case, that there was an intention to kill when he struck at the victim towards his neck area with his bush knife (about 24 inches long), but was blocked by the victim when he raised his right hand to block the knife to defend himself. In so doing the knife cut his hand and caused really serious injury, almost severing the hand.
12. It appears the victim has recovered from the injury but there is no further report on the arm.
13. A number of case authorities have been cited for my consideration. In R. v. Bela^[6], the defendant was convicted after trial and a sentence of 3 years imposed. The defendant had shot the victim with a gun but survived. The judge took into account a delay of five years and greatly reduced the sentence.
14. In R. v. Ngoah^[7], the facts are somewhat similar in that a bush knife was used in the attack and the wrist of the victim cut when he raised his hand to defend himself from the knife attack. A total of three cuts were inflicted causing serious injuries to the victim. When the victim ran away the defendant pursued him. Fortunately for the victim, other relatives intervened and helped restrain the defendant. He was sentenced to 6 years in prison.
15. The case of R. v. Tuzi^[8], involved the stabbing of a female student nurse outside of the National Referral Hospital with a sharp and dangerous 36 centimetre-long metal rod. The victim spent 7 days in hospital in recovery. She was extremely fortunate the incident occurred at the vicinity of the hospital where immediate medical help was available and the injury missed a major blood vessel by a few centimetres. A sentence of 6 years was also imposed.
16. I note the following aggravating features in this case. First that the offending was deliberate and intentional, such is the nature of the offence. A serious wound was caused which could have resulted in severe blood loss and death. The medical report described the injury as:
    • “Laceration lateral aspect of right forearm proximal third. Associate fractures of both proximal radius and ulnas bones and at posterior intersexes (interosseous) nerves (nerves). On treatment, had debridement and internal fixation of radius units log screws (x2) and ultra-units plate and screws on 30 December 2020.”
17. The medical report confirmed that the injury sustained on the hand of the victim would have lasting effect on the use of the hand.
18. Secondly, the act was unprovoked and uncalled for. It was premeditated and not a spur of the moment act.
19. Thirdly, the use of a lethal weapon, a bush knife is an aggravating feature in this case. Had the victim not raised his hand, the injuries may have been fatal.
20. This was a cowardly attack. I am satisfied the starting point should be 7 years. I add another 3 years for the aggravating features.
21. On the other hand, I balance these with the following mitigating factors. I give credit for an early guilty plea, which has saved court time and expense, and the victim from having to give evidence and re-live the trauma of that terrifying moment when he came under attack. This is consistent with remorse. I give an allowance of 2 years for this.
22. I note the defendant is a young man, has no previous convictions and prospects of rehabilitation are good. In entering a guilty plea, he has demonstrated that he has come to terms with his behaviour and realised that what he did was wrong. Taking out his revenge or anger on the other person has serious consequences not only on the victim and the offender but also on so many other family members. If convicted can result in a lengthy prison sentence being imposed. I deduct another 1½ years.
23. I also note his personal circumstances that he has cooperated well with police and authorities and that reconciliation between their families has been effected. This will allow relationships between the parties to be restored and the defendant to be allowed to return to his community on his release from prison. I allow another 1½ years to be deducted.
24. This leaves a sentence of 5 years to be served. I am satisfied this reflects correctly the appropriate sentence to be imposed also bearing in mind both the elements of specific and general deterrence in this type of cases and the importance of sending out a clear message to the community that those who commit this type of offence will expect an immediate custodial sentence, the length of time to be determined on the merits of each case.
25. I am satisfied the period spent in custody is to be deducted from the sentence of 5 years imprisonment.

Orders of the Court:

1. Enter conviction for the offence of attempted murder contrary to section 215 (a) of the Penal Code.
2. Impose sentence of 5 years imprisonment.
3. The period spent in custody to be deducted from the sentence of 5 years.

The Court.

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^[1] Blackstones Criminal Practice 1999 page 120: ".... Such offences vary very widely in culpability and circumstances".
^[2] HCSI-CRC 14 of 1975
^[3] [2004] SBHC 36; HCSI-CRC 100 of 2002 (4 May 2002).
^[4] HCSI-CRC 330 of 2011 (7 September 2012)
^[5] [1987] 9 Cr. App. R (S.) 44 Stephen Brown LJ. Kenneth Jones and Turner JJ.
^[6] Sentence [2004] SBHC 36; HCSI-CRC 100 of 2002,
^[7] [2021] SBHC 11,
^[8] [2012] SBHC 124; HCSI-CRC 266 of 2012 (17 October 2012).