R v Malefo [2023] SBHC 5; HCSI-CRC 143 of 2016 (17 March 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Malefo
Citation:
Date of decision:	17 March 2023
Parties:	Rex v Jack Lausao Malefo
Date of hearing:	14 March 2023
Court file number(s):	143 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Accused is convicted and sentenced to imprisonment for four years. 2. The time he has spent in custody is to be taken into account as part of his sentence.
Representation:	Mr A E Kelesi and Mr S K Tovosia for the Crown Mr F Kama for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 226
Cases cited:	Maelafia v R [2021] SBCA 8, Regina v Kada [2008] SBCA 9, Regina v Batalauia [2016] SBHC 29, Dalo v Reginam [1987] SBHC 15, Kyio v Reginam [200] SBHC 90, Regina v Moula [2004] SBHC 74, Selwyn v Reginam [1991] SBHC 68,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 143 of 2023

REX

V

JACK LAUSAO MALEFO

Date of Hearing: 14 March 2023
Date of Decision: 17 March 2023

Mr A E Kelesi and S K Tovosia for the Crown
Mr F Kama for the Defendant

SENTENCE

1. Jack Malefo, you have been found guilty of unlawfully doing grievous harm to the victim contrary to section 226 of the Penal Code. You now appear for sentence
2. On 28 June 2014 you attended a fundraising at Saru Beach. After most of the events of the day you pushed, punched and kicked the victim. The kicking was after he had fallen on to some firewood. The medical records of your -9 you left him unconscious and permanently disabled so that he is now a quadriplegic. You were wearing safety boots when you kicked him. You left him where he lay and simply walked away. The Court rejected your evidence that what happened was an accident. The kicking could not have been an accident and your walking away having caused the damage that you inflicted demonstrates your intention at the time.
3. You were not arrested until 13 months later and had made no contacted with the victim during that time. I am told that you spent 21 months in custody facing a more serious charge before you were granted bail. Once granted bail there was a long delay before your trial. You were committed to the High Court in February 2016. There appears to have been a delay in the prosecution filing an information against you, as a result the matter was not called in the High Court until 2017. In April 2017 you were granted bail. There does not appear to be any appearances in Court following the grant of bail until 2021. In April 2021 the prosecution elected to reduce the charge to that for which you now appear for sentence. It is not apparent why there was a further delay after the grant of bail. There was a call over on 12 July 2019 but the case does not seemed to have been able to be advanced. From the filing of the amended information in April 2021 the Court has tried to have the trial progressed. There have been 22 times the case was mentioned in order to record your plea or make the necessary arrangements for your trial. On 2 occasions warrants were issued for your arrest following your repeated failures to appear in Court. The Court records show that on at least 15 occasions you failed to appear. Not all of those appearances were necessarily known to you but you clearly were not keeping in touch with your counsel.

Personal Circumstances

4. Your counsel records that you are were aged 42 at the time of your offending. You are married with a child. You did not have the benefit of formal education. You have been a businessman. Your parents are no longer living. You enjoy support from your family.

Aggravating factors

5. The prosecution has submitted that there are a number of aggravating features. The first and most serious is the devastating effect on your victim. As a result of what you did to him he became a quadriplegic. He is totally dependent on others for the most basic of human tasks. His disability is permanent. I also regard the fact that your victim was 22 years older than you and in his mid-sixties as an aggravating factor.
6. The Crown submits that as you were wearing safety boots when you kicked him at a time he was already on the ground is evidence of using your boots as a weapon.
7. The Crown points to your lack of remorse and your attitude after the offending. I regard the lack of remorse as being a lack of a mitigating feature rather than an aggravating feature. You do not seem to have appreciated the harm you have caused.
8. Similarly your attitude of walking away after the damage you inflicted is a reflection of your intention at the time.
9. The Crown also points to the fact that the offending occurred at night time. I regard that as part of the circumstances of your offending.

Mitigating features

10. You have not previously had any convictions.
11. There has been an unacceptable delay in this matter coming to trial. The reasons for the delay after being committed to the High Court for trial are not clear but I accept that up to the time you were granted bail the delays were not of your making. There was a period of more than 2 years after you were granted bail when nothing appears to have happened to advance your case. It appears that you may not have appeared in Court in 2019 and neither the prosecution nor your counsel appear to have taken steps to have the case brought on. From April 2021 the delays were largely of your making as you failed to appear in Court on 15 occasions and on two occasions warrants for your arrest were issued. It appears there were difficulties locating you in spite of the residential condition of your bail. You could have had your trial proceed in 2021 had you appeared when your case was called. However it was a little more than 7 and a half years from your arrest until your trial, and a total of more than eight and a half years from your offending until trial.

Principles of Sentencing

12. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to the Victim and to the community. You need to understand the harm you have caused. I must promote in you a sense of responsibility for and an acknowledgement of that harm. I need to denounce your conduct and deter you and others from such offending. I need to protect the community from you and others who may be minded to act as you have. I also need to provide for your reintegration into the community and for your rehabilitation. In particular the community must understand the harm that can follow from kicking someone who has fallen to the ground. Your conduct is totally incomprehensible.
13. I must bear in mind the seriousness of this type of offending and the need for consistency in sentencing levels. To that end the sentence must provide both specific deterrence for you and general deterrence for others in the community.

Starting point

14. The Crown has referred the Court to the case of Maelafia v R [2021] SBCA 8. There were aggravating factors that are not present in your case as a knife was used to inflict wounds on the estranged spouse of the offender. The victim required surgery. There was not however the serious permanent harm that you have inflicted on the victim. In Maelafia the Court of Appeal took a starting point of 10 years’ imprisonment. The Crown draws the Court’s attention to the different penalties available for offences concerning serious violence brought under sections 224, 226 and 229 of the Penal Code. The prosecution submits that your case should have a greater starting point than the 10 years selected in Maelafia.
15. The Crown also refers to Regina v Kada [2008] SBCA 9 which involved multiple offenders inflicting particularly serious harm on two victims in the course of a burglary. The Court of Appeal said at paragraph [16]:
    • “In dealing with an offence involving the infliction of personal injury, the two most important considerations in assessing the objective gravity of the offence must be the extent of the injury and the intention and motive of the offender. It is obvious both that the more serious the injury the greater will be the objective seriousness of the offence as also will be the case as the extent increases to which the offender appreciated that the injury would result or be likely to result. Without attempting to be comprehensive, an offence under s 224 will be likely (subject to mitigating features, both subjective and objective) to fall into the category of the worst class of case and hence attract the maximum sentence where the injury is permanent and seriously affects the victim’s enjoyment of life, (for example, paraplegia, brain damage or loss of a limb or sight) and the offender intended that injury or something like it to occur. Of course, where there is more than one victim, this is a very significant marker of increased objective seriousness.”
16. It is the consequences of your offending on the victim that the prosecution relies on in its submission of the starting point.
17. The prosecution also referred to the case of Regina v Batalauia [2016] SBHC 29, where the Chief Justice made observations. In that case there was extreme provocation which led to the actions of the offender. The victim lost a limb. There was a guilty plea entered as soon as the appropriate charge was laid. A final sentence of 4 years was imposed which was indicative of a starting point of more than 6 years. Your case is clearly more serious than in Batalau’ia.
18. Your counsel has helpfully set out a review of case that involved offending against section 226 of the Penal Code. In some of those weapons such as knives were used. Sentences generally varied between 2 and 5 years’ imprisonment. None of the cases involved a consequence as serious as in your case. A number of them had guilty pleas and evidence of remorse.
19. In the circumstances of your case I consider the starting point can be no less than 8 years imprisonment. I consider that on the evidence there was no pre-planning. The violence was spontaneous. It was not part of other criminal offending.

Delay

20. Section 10(1) of the Constitution guarantees any person who is charged with a criminal offence a fair hearing within a reasonable time. The delay in your case could not be said to be reasonable, in spite of the delays that resulted from measures taken to protect the community from COVID – 19. There is no basis for the submission by your counsel that the victim was the cause of any of that delay. The delays from April 2021 have largely been of your own making following repeated failure to attend Court. Your counsel has referred the Court to Dalo v Reginam [1987] SBHC 15 where the Court was concerned with a three year delay in laying a charge. The Court said:
    • “Such extreme delay is totally unreasonable and unjust. Quite apart from the sense of uncertainty it causes, the penalty imposed so much later is often made all the harsher by the delay.”
21. There was a delay in bringing the charge but it was only 13 months, not the 3 years in Dalo. However there were delays after you were committed to the High Court. I do not know why the police took so long to lay the charge. By the time of your bail application the information had been filed. However it seems that after you were granted bail your case was not called again until 12 July 2019. The case was not able to be advanced on that date and it appears you may not have been present. In 2020 there were delays resulting from the measures to protect the public from COVID-19. After the Courts resumed there were efforts to advance your case. As set out above the case was repeatedly adjourned as you did not appear in Court. You could not have been keeping in contact with your counsel. I put to one side the delays since April 2021. Having said this the delay in processing your case was unacceptably long and for much of that delay you were not the cause.
22. In Kyio v Reginam [2004] SBHC 90 the Court was concerned with a delay approaching 13 years. The Court said however:
    • “I have pointed out that if delay is to be described as unreasonable, then there must be sufficient details placed before the court. The court cannot simply assume or take for granted that because the period was something like 9 years or 12 years that therefore delay was unreasonable⁹. It must be justified or explained as it is vital to the process of sentencing. Unless the details are before the court it cannot make an informed decision one or the other as to what weight to attach to the element of delay. I accept though that in the absence of anything else and with what little has been submitted the substantial delay in the timely prosecution of this case cannot be laid at the feet of this defendant.”
23. The Court allowed a generous discount for the delays in that case arising in Temotu Province but in circumstances quite different from your case. Similarly in Regina v Moula [2004] SBHC 74 the Court allowed a one third reduction on account of delay. In Selwyn v Reginam [1991] SBHC 68 the Court confirmed that a delay of 2 and a half years warranted a reduction in sentence such that a six months sentence of imprisonment on appeal was suspended. In other cases cited a reduction in sentence followed what was considered an unreasonable delay. This was particularly so when guilty pleas were entered. The delay from your committal to the High Court to the time of trying to locate you to progress your case although unexplained, appears unreasonable to me. You will therefore receive a significant reduction in what would otherwise be the appropriate sentence.

Discussion

24. In fixing sentence the aggravating factors and in particular the effect of your offending persuade me that the starting point cannot be anything less than 8 years imprisonment. You’re kicking the victim on the ground while wearing your safety boots is incomprehensible. You showed cold callousness in simply walking away after you inflicted that damage on him. You do not have previous convictions and will receive credit for that. Most of all you have had to wait from February 2016 when you were committed for trial until today to have your case finalised. That would be seven years. Nearly 2 years of that period was a result of your not appearing in Court when required. I cannot know whether that was because of you simply not appearing or not keeping in contact with your counsel. Either way you cannot receive credit for that period. The time you have spent in custody will be taken into account.
25. From the starting point of 8 years which takes account of the aggravating factors I reduce the sentence to taken into account the matters personal to you and reduce the sentence by 1 year. I note that the victim has initiated a reconciliation with you. Your evidence is that you each apologised to each other. For matters of mitigation including the delays involved in the filing of the information and for the delays in progressing this case up to April 2021 there will be a reduction of 3 years. That leaves a final sentence of 4 years imprisonment.

Order of the Court

1. The Accused is convicted and sentenced to imprisonment for four years.
2. The time he has spent in custody is to be taken into account as part of his sentence.

By the Court
Hon. Justice Lawry
Puisne Judge