R v Sale [2022] SBHC 58; HCSI-CRC 272 of 2021 (2 August 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sale
Citation:
Date of decision:	2 August 2022
Parties:	Regina v Hari Sale
Date of hearing:	29 July 2022
Court file number(s):	272 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr Hari Sale is convicted of 1 count of ACABH contrary to section 245 of the Penal Code (cap 26). 2. You are sentenced to 12 months imprisonment 3. You are to be released at the rising of the court 4. Right of Appeal.
Representation:	Mr. John Wesley Zoze for the Crown Mr. Benham Ifuto’o and Mr Oxley Limeniala for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 136 F (1) (a) and (b) Penal Code S 245 [cap 26], S 24 (2)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 272 of 2021

REGINA

V

HARI SALE

Date of Hearing: 29 July 2022
Date of Decisions: 2 August 2022

Mr John Wesley Zoze for the Crown
Mr. Benham Ifuto’o and Mr Oxley Limeniala for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr Hari Sale was originally charged with 1 count of rape contrary to section 136 F(1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and 1 count of assault causing actual bodily harm (ACABH) contrary to section 245 of the Penal Code (cap 26). Upon review of the evidence, the DPP had filed a nolle prosequi in respect of count 1. An amended information was filed on the 28^th July 2022 whereby the defendant was charged with 1 count ACABH. The defendant was hereby discharged on count 1 of the original information. Upon arraignment on the amended information, the defendant had entered a guilty plea. He was convicted accordingly and he now appears before me for sentence.
2. The charge of ACABH is a misdemeanour and carries a maximum sentence of 5 years imprisonment. The courts however are empowered under s.24 (2) of the Penal Code to impose a shorter sentence than the one prescribed depending on the peculiar circumstances of each case.
3. The facts as are agreed to by parties in this case are that the complainant is a 28 years old single mother of Herodian Village, Fataleka, Malaita Province. You are a well-known person to the complainant as you live together in the same area. The incident occurred at Hetodia Village. On the 7^th April 2020 between 5am to 7am, the complainant went to relieve herself at the women’s relief site in the mangroves. She then walked back. You suddenly appeared from the bush. Upon seeing you, the complainant was shocked and screamed. You hit the complainant’s neck with your right hand and tightly held on to her neck using your right hand to prevent her from shouting out for help. As a result, the complainant could not breathe and fainted. She fell on the ground and lay unconscious.

Some girls from the village heard the scream and came to the area. They saw you pressing the complainant’s head whilst she was laying unconscious on the ground. You ran away when you saw them. The complainant was assisted by her relatives and was rushed to Takwa Clinic and was revived and treated. The complainant’s medical report confirmed that there were multiple finger marks on her body, unexplained bruises on her face and body and redness on her tongue. She also complained of lower abdominal pains.

4. Having stated the facts in your case and in order for me to impose an appropriate sentence in your case, I must weigh the aggravating features to the mitigating features. It is submitted by Mr Zoze of the crown that the persistence of attack on the complainant is an aggravating feature against you. On the agreed facts, you hit the complainant’s neck and held on tightly on her neck to prevent her from shouting out for help. You have continued to press the complainant’s head when a group of girls came to her rescue.
5. It is further submitted that the attack was unwarranted. She was merely walking back to her house when you attacked her. The said attack was uncalled for and was an act of cowardice on an innocent woman.
6. Further to the above is the fact that the complainant was pregnant. You have not only put at risk the complainant’s life but also the life of her unborn child. You could have killed both the mother and the child during the attack.
7. It is also argued by the crown that the assault was pre-meditated. You used a cloth to hide your face and identity from the complainant and you attacked the complainant from behind her.
8. It is further argued by the crown that what you did had caused psychological and emotional trauma on the complainant. There is no victim impact statement in this case but it would have been very traumatizing for the complainant to be attacked without any reason.
9. On your behalf, it is submitted by Mr Limeniala of counsel that you have pleaded guilty to the offending at first opportunity. Your early guilty plea shows you are remorseful. It also mean that you have owned up to your offending and you are willing to face the consequences of your action. Your guilty plea also save the court’s time and resources into conducting a trial into the matter. It also saves the complainant further stress and trauma from giving evidence in a contested trial.
10. It is further submitted on your behalf that you have no previous convictions which makes you a first offender. You are 36 years old now and married with 2 children. Your children attend school. I have also noted that you have co-operated with the police during investigation. It is further noted that you surrendered yourself to Maluú police after the incident.
11. It is further noted that you have paid compensation to the complainant’s relatives after the incident. The compensation consist of 1 x 9 feet shell money and a pig worth $2000.00.The payment of compensation also shows you are genuinely sorry for your actions.
12. It is further submitted that there had been a delay of about 2 years in the finalisation of your case. The offending occurred on the 7^th April 2020. You were committed to this court on the 29^th March 2021. The original information was filed on the 25^th May 2021. You pleaded not guilty to the charges and the matter was listed for trial. It is further noted that you have been in pre-trial custody since the 24^th April 2020. To date you would have spent a total of 2 years, 3 months and 9 days in pre-trial custody.
13. I have had the opportunity to peruse and consider the sentencing range for similar offences. The sentences imposed by this court ranges from a suspended sentence to one of 2 years imprisonment.
14. Having considered the facts of your case and taking note of the guidelines stipulated in the cases referred to by both counsel for the crown and the defence. I put your starting point at 18 months imprisonment. For the aggravating features, I would increase that sentence by 12 months. For the mitigating features and especially your guilty plea and the delay in the finalisation of your case, I reduce the sentence by 18 months. Sentence imposed is one of 12 months imprisonment. Since you have spent a period of more than 2 years in pre-trial custody, I will release you at the rising of the court.

Orders of the court

1. The defendant Mr Hari Sale is convicted of 1 count of ACABH contrary to section 245 of the Penal Code (cap 26).
2. You are sentenced to 12 months imprisonment
3. You are to be released at the rising of the court
4. Right of Appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge