R v Isou [2023] SBHC 178; HCSI-CRC 421 of 2021 (27 March 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Isou
Citation:
Date of decision:	27 March 2024
Parties:	Rex v Kennedy Isou
Date of hearing:
Court file number(s):	421 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. Ct 1 Common Assault is suspended on good behaviour for a period of 12 months, 2. Ct 2 Common Assault and Ct 3 Intimidation to be served consecutively, 3. Accused to serve a total of 12 months 4. Good behaviour for a period of 12 months to commence after serving the imprisonment. 5. No further order.
Representation:	Oroi G & for the Crown Tovosia R for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 244, S 231 (1) Magistrate Court Act S 37, Family Act
Cases cited:	Fiudui v Regina [1988-1989] SILR 150

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 421 of 2021

REX

V

KENNEDY ISOU

Date of Judgment: 27 March 2023

Oroi G & for the Crown
Tovosia R for the Defendant

SENTENCE

Maina PJ:

1. You, Kennedy Isou had pleaded guilty on two counts of common assault contrary to 244 of the Penal Code and one count on intimidation contrary to 231 (1) of the Penal Code.
2. Upon you own pleas on guilty on the charges, the court find you guilty and convicted you on the three charges.

Backgrounds

3. The accused was original charged under the Family Act and his case was transferred from the magistrate court to this court under section 37 of the Magistrate Court Act.
4. The reason for the transfer is that the complainant is a principal magistrate, the presiding magistrate is her colleague, and they work at the same magistrate office in Honiara. It is so as the magistrate said to avoid any likelihood of bias of the presiding magistrate.
5. The complainant is a principal magistrate at the Central Magistrate Court in Honiara and at the time of the incidents, she had de facto relationship and have a pair of twin girls.
6. The twin girls were infants when the incidents that constituted the indictment had occurred.
7. The defendant is a Police constable with the Royal Solomon Islands Police Force and at the time of the incidents, he has been in the force for 15 years. Currently, he is suspended from duties pending the outcome of charges against him.

Brief Summary of Agreed Facts
Count 1.

8. On 21 September 2020, the accused assaulted the complainant by grabbing her mouth and aggressively pushed her around.
9. The accused took $10.00 out from the complainant’s purse without the complainant’s permission to top up for his mobile. The complainant felt upset and started to tell off or talk to the accused about the money and taking it the money without her permission. Accused responded that he would replace her $10.00 but the complainant continued to argue with the accused that resulted to this incident.

Count 2

10. On the 17^th August 2020, the accused assaulted the complainant at the accused’s family home at Lengakiki. The accused shouted at her and accusing havoc to their twins daughters. He called the complainant as idiot with sort of names. The accused then kicked the complainant’s lower back with his legs.

Count 3.

11. On 4 October 2020, the accused threatened to harm the complainant if he would be imprisoned for these charges against him. When the complainant responded to him on this matter with the presence of the Police, the accused said even with that he still do not care and would deal with her.

Maximum Penalties

12. The offence of common assault under section 244 of the Penal Code is misdemeanour and shall be liable to imprisonment for one year.
13. While the offence of intimidation under section 231 (1) of the Penal Code is liable to imprisonment for three years.

Starting Point

14. With the facts and circumstances relevant to the charges, the starting point for these offences against the accused are 6 months imprisonment for common assault and one year for intimidation.

Mitigation,

15. The defence submits that the accused holds a Diploma in Mechanical Engineering, a Police Constable with the RSIP and served in the force for more than 15 years. With these offences, he is currently suspend from work on half pay in the past 5 years pending the charges against him.
16. He is currently the breadwinner for his children and family at home.

Aggravating Factors

17. The Crown submits the accused has a de facto relationship with complainant when these offences were committed by him and such had placed him in the trust position towards the complainant. He had breach the trust by threatening to harm the complainant.
18. The Crown also submitted these as vulnerability of the victim:
    • (i) the force of the accused with long service in the force with training and strong physical body,
    • (ii) The assault of the office of the court (The complainant is Tearo Ribua Benetero who is a Principal Magistrate at Central Magistrate Court),
    • (iii) The offences occurred in the presence of their twin infants.

Analysis

19. With the three points on the vulnerability of the victim as submitted by the Crown Counsel it may be so for (i) but would not be so for the others.
20. For (ii) it is a personal matter and arose at the time of the de facto relationship between them. Being a principal magistrate is irrelevant; otherwise, that behaviour is unethical for her as judicial officer.
21. The incidents were not done to her at the course of execution of her duties or work as officer of the court. The de facto relationship by the victim and being a judicial officer in some sense should raise questions on the integrity of victim.
22. The facts of the case seems to disclose the aspect of domineering and arrogant manner by the victim that resulted the actions by the accused to her.
23. The twin were infants, it is not disclose in the facts and submissions on what extend it happened or affected the twin infants, than just stated in the presence of the twin infants.
24. Both counsels in their submissions stated that the accused is the first offender and he have pleaded guilty on all charges.
25. Crown Counsel submitted the case involved breach of trust and any sentence for this case must be custodial sentence. Counsel referred to the appeal case of Fiudui v Regina^[1] when Chief Justice Ward stated, “It must be clearly understood that in any offence where a breach of trust is involved a sentence of imprisonment will always be appropriate”.
26. I note the Fiudui v Regina^[2] and that principle should be applied if there appears a complete vulnerability of the victim. However, with this case it arose on the de facto and from the essence of the facts of the case; it appeared that in the course that staying together it was deranged.
27. The domineering and arrogant manner by the victim to the accused as disclosed in the facts raise questions on part of the victim towards the accused
28. I give credit for plea of guilty on the charges and no previous conviction and take into account in this sentence.
29. From the facts of the case and taking into account the mitigation and the aggravating features and or circumstances in the charges, I am satisfy and sentence the accused to imprisonment as follows:
    • Ct 1 Common Assault – 5 months imprisonment
    • Ct 2 Common Assault – 6 months imprisonment
    • Ct 3 Intimidation -6 months imprisonment

Orders of the Court

1. Ct 1 Common Assault is suspended on good behaviour for a period of 12 months,
2. Ct 2 Common Assault and Ct 3 Intimidation to be served consecutively,
3. Accused to serve a total of 12 months
4. Good behaviour for a period of 12 months to commence after serving the imprisonment.
5. No further order.

THE COURT
Honourable Justice Leonard R. Maina
Puisne Judge

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^[1] [1988 – 1989] SILR 150 (12^th December1989)
^[2] Ibid n.1