R v Kakaluae [2022] SBHC 88; HCSI-CRC 509 of 2016 (16 September 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kakaluae
Citation:
Date of decision:	16 September 2022
Parties:	Rex v Poroa Lui Kakaluae
Date of hearing:	15 September 2022
Court file number(s):	509 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. On count 1 no conviction is entered and no penalty is imposed. 2. On count 2 the Defendant is sentenced to 3 months’ imprisonment. 3. On count 3 the Defendant is sentenced to 3 months’ imprisonment. 4. The sentences for counts 2 and 3 are to be served concurrently. 5. As the Defendant has already served the term of imprisonment imposed he is to be released at the rising of the Court.
Representation:	Mr N Tonowane for the Crown Mr A Tinoni for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 224 (a)
Cases cited:	Waidia v Regina [2015] SBCA 12, Palmer v R [1970] UKPC 2; [1971] AC 814, R v Mclnnes 55 Cr App 551, R v Williams (g) [1983] EWCA Crim 4; 78 Cr App R 276, R v Oatbridge 94 Cr App R 367, Regina v Oge [2004] SBHC 72, Regina v Gwali [1999] SBHC 10, Kyoi v Reginam [2004] SBHC 90, Regina v Saeniorea [2005] SBHC 173, R v Finau [2021] SHBC 142, R v Kiloa [2022] SBHC 32, Kilatu v Regina [2005] SBHC 118, Regina v Kada [2008] SBCA 9, Alu v Reginam [2016] SBCA 8,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 509 of 2016

REX

V

POROA LUI KAKALUAE

Date of Hearing: 15 September 2022
Date of Decision: 16 September 2022

Mr N Tonowane for the Crown
Mr A Tinoni for the Defendant

Sentence

Introduction

1. Poroa Lui Kakaluae you have pleaded guilty to three charges. The first is a charge contrary to section 224 (a) of the Penal Code. The second and third charges are that you assaulted two others occasioning actual bodily harm on each of them contrary to section 245 of the Penal Code.
2. You had previously faced different charges in respect of the persons named in counts 2 and 3. The prosecution chose to not proceed with those charges and presented an Amended Information on 7 September 2022. You pleaded guilty to the three charges in the Amended Information on the same day as it was presented in Court. You now appear for sentence.

Facts

3. In the early hours of 30 August 2015 the three complainants were drinking alcohol by the side of the road at Naha 2. You arrived in your vehicle playing music in your car. You were also drinking alcohol. An argument began, you got out of your car and approached them. There was a scuffle. You had a small knife.
4. Paragraphs 3 and 4 of the document entitled “Memorandum of Agreed Facts” reads as follows:
   • “Not long after the defendant arrived, Robert (the person named in Count 1) approached the defendant, and an argument erupted between him and the defendant.
   • The defendant then came out of his car and moved towards him. There was a scuffle between him and Robert, then joined by the other two complainants against the defendant. The defendant was by himself and tried to protect himself when the incident occurred. While trying to protect himself, he used a small knife to inflict wounds on the three victims to scare them, and they left him.”
5. The first complainant received an injury to his left back, the second to his left side and the third to his left front. You and your father later approached them to reconcile and give compensation, in accordance with custom. A peace settlement took place at Kukum Police Station with the second and third victims each receiving one red money and $1000.00. You and your father are still waiting for the relatives of the first victim to get back to you regarding compensation.

Self defence

6. The particulars of count 1 are set out as
   • “That Porowa Lui Kakaluae of Adagege Village, Lau, Malaita Province, at Honiara in the Guadalcanal Province on the 30^th day of August 2015 unlawfully intended to cause grievous harm to Robert Tohuika.”
7. The particulars of the charge in the original information are in similar terms. In neither the first Information nor in the Amended Information do the particulars allege that you inflicted any harm on Robert Tohuika. As such count 1 does not allege an offence. It is not an offence to have an intention to cause grievous harm, there must be an act by you that is identified by the prosecution. The reason the prosecution has not alleged in the particulars that you inflicted any harm has become clear in reading paragraphs 3 and 4 of the Memorandum of Agreed Facts.
8. The test for self-defence is set out in the Court of Appeal decision of Waidia v Regina [2015] SBCA 12. The Court of Appeal said:
   • 11. “If at that trial the Appellant raises the question of self-defence then it will be incumbent on the Crown to prove beyond reasonable doubt that the accused was not acting in self-defence if the Crown is to succeed.
   • 12. Self-defence is available as a 'defence' to crimes committed by use of force. The basic principles of self-defence are set out in Palmer v R [1970] UKPC 2; [1971] AC 814: approved in R v McInnes, 55 Cr App R 551:
   • "It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary."
   • 13. The burden of proof remains with the prosecution when the issue of self-defence is raised. The prosecution must adduce sufficient evidence to satisfy the court beyond reasonable doubt that the defendant was either:
   • not acting to defend himself/herself or another; or
   • not acting to defend property; or
   • not acting to prevent a crime or to apprehend an offender; or
   • if he was so acting, the force used was excessive.
   • 14. Failure to retreat when attacked and when it is possible and safe to do so, is not conclusive evidence that a person was not acting in self-defence. It is simply a factor to be taken into account rather than as giving rise to a duty to retreat when deciding whether the degree of force was reasonable in the circumstances. It is not necessary that the defendant demonstrates by walking away that he does not want to engage in physical violence: R v Bird [1985] EWCA Crim 2; 81 Cr App R 110.
   • 15. In assessing the reasonableness of the force used, the court should consider, inter alia, two questions:
     • was the use of force necessary in the circumstances, i.e. was there a need for any force at all?, and
   • was the force used reasonable in the circumstances?
   • Both questions are to be answered on the basis of the facts as the accused honestly believed them to be R v Williams (G) [1983] EWCA Crim 4; 78 Cr App R 276, R. v Oatbridge, 94 Cr App R 367. To that extent it is a subjective test. There is, however, an objective element to the test. The court must then go on to ask whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.”
9. The test set out by the Court of Appeal then explains why the prosecution do not allege any violence in the particulars of count 1. It is clear from the Agreed Facts that the Crown accepts you have a defence to count 1. The Crown accepts you were acting in defence of yourself. The Crown accepts that you were first confronted by Robert before the others became involved. The only way of reconciling conflict between the Agreed Facts and the way the charges are laid is that after having engaged with Robert, the other two received wounds which were considered as beyond what was reasonably necessary to defend yourself in the circumstances as you honestly believed them to be.
10. I record that your case was set as a reserve trial for the week commencing 5 September 2022 and that there was a mentions hearing when counsel confirmed there were no outstanding issues.
11. Count 1 cannot stand as it is. There has been no further application to amend it. The sentencing must proceed on the basis that the Crown accepts that at the time of being engaged with Robert you were acting in self-defence and that the force used was reasonable. However, the force used on the remaining two victims was not reasonable in the circumstances.
12. On count 1 therefore although a plea has been entered, the particulars do not inform you of what you are alleged to have done. In those circumstances the plea has been entered to something that is not an offence. In the circumstances no conviction is entered in respect of count 1 and accordingly no penalty is imposed for that count. You will be sentenced on the remaining two counts.

Personal Circumstances

13. Your counsel has pointed out that at the time of the offending you were just 20 years old. You are now married and have two children. Your wife has provided evidence that you are now a very different person from the young man who committed this offending.
14. She says you are committed to your marriage and family and no longer drink alcohol. She also points out that you spent 3 months on remand in custody which appears to have caused you to face up to your offending.

Aggravating factors

15. The prosecution has identified three aggravating factors. First you were intoxicated. Second, there were two victims. Third you used a knife as a weapon. I also record that your offending took place at night.

Mitigating factors

16. I record that you have pleaded guilty immediately the Amended Information was available.
17. You have taken part in reconciliation and compensation with the second and third victims.

Deterrence

18. The prosecution submits that there is a need to impose a sentence that deters others from behaving as you did. I note however that you appear to have learned a valuable lesson and there has been no similar conduct in the seven years since your offending. Accordingly, I accept there is not a need for specific deterrence for you.

Delay

19. This is a case where there has been an unreasonable delay in bringing your case to a conclusion. I note you were committed to the High Court for trial as long ago as November 2016. An information should have been filed in November 2016 for you to appear in the High Court on the last Friday of that month to be able to enter your plea. The prosecution did not file an Information until 21 March 2018. That delay is unacceptable. There have also been delays in bringing your case to trial so that you have had this hanging over you for more than 7 years.
20. In Regina v Oge [2004] SBHC 72 the Court said:
    • “First is that the inordinate delay in prosecuting your case for 5 years is contrary to section 10(l) of the Constitution which demands that every person who is charged with a criminal offence must be fairly tried by a court of law within a reasonable time. The delay of 5 years by the Prosecution of your case is a point in your favour when considering the length of any custodial sentence I should impose on you.”

In Oge it is not clear how much reduction was given but it appears to be around 2 years’ imprisonment on a charge of rape. The Court recognised the difficulty in balancing the need to impose a sentence for criminal offending and the need to recognise when a young man has got on with his life and made something of it.

21. These comments are appropriate in your case as well.
22. In Regina v Gwali [1999] SBHC 10 Kabui J said:
    • “In my view, this case calls for custodial sentence. However, long delay by the Prosecution to prosecute an offender in a court of law is a matter capable of reducing the length of a custodial sentence.”

Later in the judgment he made it clear that the power to grant a reduction on the basis of delay, is discretionary. He said:

• “However, the point here as I have said is that long delay in prosecuting criminal cases may have the effect of reducing a custodial sentence imposed by the Court.”

23. In Kyoi v Reginam [2004] SBHC 90 the Chief Justice was dealing with a lengthy delay of 9 years after the Defendant was charged. His Lordship reviewed the authorities and reduced a sentence from 5 years to two years as a result.

Starting point

24. Whenever there is offending involving violence with a weapon, the Courts must consider a term of imprisonment. Counsel has referred to a number of authorities. These include Regina v Saeniorea [2005] SBHC 173, R v Finau [2021] SBHC 147, R v Kiloa [2022] SBHC 32, Kilatu v Regina [2005] SBHC 118. The Crown has also drawn the Court’s attention to the much more serious case of Regina v Kada [2008] SBCA 9.
25. It is always serious when a person uses a knife on another. However, in your case I accept there was an element of self-defence accepted by the prosecution. I also recognise that the charges arise out of the one transaction. In accordance with the guidance provided by the Court of Appeal in Alu v Reginam [2016] SBCA 8, the sentences on the two charges must be served concurrently. On the second and third counts after taking into account the aggravating factors, I take a starting point of 12 months’ imprisonment. I deduct 6 months from that sentence to reflect the inordinate delay in bringing this matter to a conclusion. I accept your plea was entered as early as it could be once two of the charges were reduced. Your guilty plea and the steps taken to reconcile and pay compensation are a reflection of the remorse you have expressed. Taking into account those mitigating factors I reduce the sentence by a further 3 months. That leaves a final sentence of 3 months’ imprisonment. I have recorded that you have already spent 3 months on remand in custody. You have therefore served your sentence and will be released at the rising of the Court.

Orders of the Court

1. On count 1 no conviction is entered and no penalty is imposed.
2. On count 2 the Defendant is sentenced to 3 months’ imprisonment.
3. On count 3 the Defendant is sentenced to 3 months’ imprisonment.
4. The sentences for counts 2 and 3 are to be served concurrently.
5. As the Defendant has already served the term of imprisonment imposed he is to be released at the rising of the Court.

By the Court
Justice Howard Lawry PJ
Puisne Judge