R v Maraki [2023] SBHC 58; HCSI-CRC 513 of 2018 (7 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Teururu Maraki
Citation:
Date of decision:	7 August 2023
Parties:	Rex v Teururu Maraki
Date of hearing:	31 July 2023
Court file number(s):	513 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	The offender will serve a sentence of 4 years and 3 months. The Sentence to commence today.
Representation:	Mrs M Suifasia for the Crown Mr D Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 215 (c), S 226
Cases cited:	R v Folomae [2021] SBHC 42, Maelafia v R [2021] SBCA 8

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 513 of 2018

REX

V

TEURURU MARAKI

Date of Hearing: 31 July 2023
Date of Sentence: 7 August 2023

Mrs M Suifasia for the Crown
Mr D Kwalai for the Defendant

SENTENCE

Faukona DCJ: The Defendant Mr. Teururu Maraki was originally charged for Attempt Murder contrary to section 215 (c) of the Penal Code.

2. That charge was Nollied on the 2^nd of June 2023 and a further amended information of Grievous Harm contrary to section 226 of the Penal Code was substituted on 28^th June 2023.
3. Upon arrangement on 29^th June 2023 the Defendant plead guilty to the charge of Grievous Harm.

Brief Summary of Facts.

4. On 8^th April 2018, at 01 Market, White River, Teururu Maraki of Wagina Village, Choiseul Province unlawfully did grievous harm to Paul Atanikakia.
5. On that day the victim and his group had been drinking alcohol at Pisai beach, West Guadalcanal. In the evening they returned and stopped at 01 market to buy BBQ.
6. On the same day the offender and his cousin Mr. Peiatau were drinking alcohol with another different group. In in the evening Peiatau was at the market when the victim’s group arrived.
7. Somehow the victim deliberately bumped into Peiatau that led to a scuffle. The offender then approached the victim. The victim then pulled out an iron pole handle of a market umbrella and swung to ward off the offender. The pole struck the offender’s arm.
8. The offender and the victim had not been in good terms. Previously they had a fight which the victim knocked out the offender’s two from teeth.
9. The victim then walked to the bus stop and waited for his friends.
10. In the meantime the offender ran to his houses and got an axe and came back to the victim. He then struck the victim on his head with back of his axe. As a result the victim fell to the ground unconscious.
11. The offender left the scene and stayed with his in-law a Police Officers at Naha. His in-law notified CID who went to Naha and arrested the offender.
12. On the same night he victim was taken to the hospital where he was medically examined. A medical report was compiled to that effect.
13. Both victim and the offender are from Kiribati origin.

Aggravating Factors.

14. The Counsel for the Crown submits that the offender used a weapon, an axe to assault the victim with. That single blow landed on the head of the victim who fell down unconscious and motionless until he was taken to the National Referral Hospital.
15. The Counsel said that is the objective seriousness of the offence, where the court should impose a sentence reflecting general and specific deterrence.
16. I noted it was an aggravating factor when the offender, after the scuffled, had to run home to get his axe. It reflected the offender’s premeditated assault to inflict harm upon the victim.

Mitigating features.

17. The defence Counsel quickly rebut that the offender merely used the back head of the axe to assault the victim with, so it is less serious.
18. The offender entered a plea of guilty on 29^th June 2023 upon arraignment for the charge of Grievous Harm, filed on the same date.
19. The plea of guilt was at the first available opportunity, spares the victim from being called to the witness box. The Counsel refers to the case of Soni v Regina, that by pleading guilty the offender appreciates how wrong his conduct was and regrets. The sentence should consider an appropriate discount.
20. The other feature is that the victim had started the whole episode by bumping the Defendant’s cousin that is provocation which cause the offender to commit the assault. However provocation is not a defence but mitigation in this case.
21. The issue of delay is one of mitigating features. One particular reference in 2018 or 2019, where the defence Counsel prepare that they were willing to enter a plea guilty if the charge was reduced to Grievous Harm. No response from the Crown. I will return to this point in my discussions.
22. On 23 October 2018 the offender was given bail. That opportunity had granted him privilege to reconcile with the victim according to their Kiribati custom. He gave $2,000.00 for the victim which he accepted.
23. After reconciliation their relationship have improved. The offender has a family now with one child. The victim had married into the offender’s family, and has moved on with their lives.
24. The offender now has a family to manage. He also take care of his two of his sister’s children, as well as a remaining parent also at 60 years old. He is the breadwinner. He earns living by selling fish and chips and renting rooms from his family house.

Discussions/Analysis.

25. When considering what the appropriate sentence to impose, definitely for sure I will take into account those aggravating factors and mitigating features as submitted by the counsels.
26. In considering the seriousness of offending it is obligatory and pertinent take into account the use of a weapon (axe) and aligning it to the result of injury specified in the medical report.
27. The seriousness of offending cannot be read in isolation, it has to measure against the Doctor’s report, to ascertain the veracity of offending.
28. In the current case one blow with an axe at the forehead had caused on injury on the head of the victim at the occipital area. It was a serious injury according to the Doctor, an open wound approximately 5cm long and the skull exposed.
29. The fragments of the brain noted, and the skulls surface is rough. The brain tissue has risk of injury and infection as well.
30. The circumstances surrounding the offending is that after a short altercation the offender ran to his house and got his axe, returned to the 01 market and delivered one blow on the forehead of the victim.
31. I accepted one blow and the use of the back of the axe because the medical report affirmed that the skull surface is rough. If the laceration is smooth, then the use of the sharp end of the axe a probable cause.
32. By having to attack the victim in an open market where everyone is expected to be well behave speak well of the offenders attitude at that moment.
33. A market place is a place people trade and buy goods and vegetables, and often many people of different back ground gathered. It is a spot where the environment is expected to be at peace and harmony.
34. The act by the offender at that time was disrespectful to market attenders and the public. There was no care attitude. All that the offender wish was to please his ego to settle an old scare, and that was it. Expectedly people fear this kind of anti-social behavior and action in a public place.
35. I accepted one blow by the axe cause the injury. I also accept the offender has plead guilty at first instance when he was arraigned with the substituted charge.
36. I noted reconciliation and payment of $2,000.00 was paid and accepted. After that occasion party’s relationship was mended. They have married and moved along with their lives.
37. I noted the offender is a responsible man with sister’s children and a parent to support.
38. In term of sustenance, the offender’s source is not that bad. He rents out rooms from their family home and he was selling fish and chips.

Use of Alcohol.

39. Use of alcohol and reference to medical report are two significant features counsels have never touched in their submissions, and I don’t know why.
40. The offender had committed an offence whilst under the influence of alcohol. Use and influence of alcohol to commit an offence is the most aggravating factor in the criminal law.
41. Often the Courts continue to condemn and impose deterrent sentences upon those who under influence of liquor and commit crime. The Court will not shy away but must always impose a deterrent sentence with the hope the offender, public and those who wish to walk his shoes will confront the law in its full force.
42. The message though often repeated, must be continued to sound once more with the hope to infiltrate into the minds of citizens and the offender. The Courts are no longer lenient to alcohol abusers. Communities or public places as markets, shops etc should be open and free where people access to without fear of their right being infringed.

Delay.

43. I accepted there was delay for 5 years. The defence counsel submits their case could have been disposed of if the Crown had agreed to his proposal to reduce the charge to Grievous Harm, and he will advise the offender to enter a plea of guilty.
44. However, let’s look at what was the cause of delay. For sure it is not the offender’s fault but the system.
45. The PI was done on 23^rd October 2018 and the papers were sent to the High Court under the cover of a letter dated 21^st December 2018. On the same date the offender was granted bail on conditions.
46. On 20^th December 2018 the first information on attempted murder was filed. On 15^th March the second information of the same charge was filed.
47. The Second call over was on 15^th February 2019. Following that was a call over before the offender’s bailed was varied on 19^th September 2019. The varied bail was granted by the former DCJ.
48. After the variation bail the next call over was 30^th September 2020 a year after but before another Judge. The DCJ had retired by then. On this date as well the matter was ready for the listing committee to set dates for trial.
49. For the next 13 adjournments the issue was the listing committee was yet to fix trial date. On 4^th November 2022, a trial date was fixed for 5^th December 2002. On 5/12/2022 the trial date was vacated.
50. On 3^rd February 2023 trial date was yet to be fixed. For the next 3 call overs no date was yet been fixed by the committee.
51. Before the 13^th adjournments there were 9 ordinary adjournments after the PI was received.
52. When the case came before me, it was already been fixed for trial on 26^th June 2023.
53. Amazingly, for 13 call overs the listing committee were not able to fix a trial date. The call overs run for a period from 30^th September 2020 to 3^rd February 2023, a total of 2 years and 5 months.
54. Previous 9 ordinary call overs dated from 15^th February 2019 to 30 September 2020, for period of 7 months and 14 days.
55. So the delay was caused by who? 9 call overs were by ordinary call over. 13 call overs were incurred because the listing committee could not find a trial date.
56. Who were actually members of the listing committee? From information gathered one from Pubsol office, one from DPP and the rest from the High Court.
57. The question to pause, why is it difficult to find a trial date? Apparently it would be logic to conclude the members of the committee including the PubSol had a hand in delaying this case. No particular office is to be blamed. For 2 years and 5 months the trial date was not found. Is that believable, I don’t. Perhaps in those 2 years and 5 months there was no spare week at all.
58. I have mentioned earlier, it was a delay by the system. Of course some discount is necessary where all authorities are responsible? Perhaps a fraction but not as the defence Counsel expected.
59. If this is the kind of administration of criminal files was done in the past, until now, then a solution must be reached to avoid unnecessary delaying the case.

Starting point.

60. I have turn on the facts of the offence, the aggravated circumstance including the mitigating features.
61. Of cause this sentence is aimed at reflecting specific deterrence, as well as general deterrence. To deter the offender from recommitting, and learn from his past mistakes. One cannot assume that the offender had learnt the effect of his action since 2018. Of cause since 2018, 7 months was in custody and the rest he was on bail until today with conditions.
62. Indeed the offender is not absolutely free from the hands of law. In case it is a mere temporal behavior, it is prudent and logic that specific deference is required.
63. The starting point as the Defence counsel suggest to me, in serious case, is 5 ½ years’ imprisonment as pronounced in the case of R v Folomae (2021) SBHC 42. The offender was charged for Grievous harm. A cut was with a long bush knife, it was a one blow.
64. At the hospital the Dr. found and 8 cm laceration at the back of the scalp and there was a cut on the right index, the victim required surgery.
65. The Judge describe that case as less serious, after considering the seriousness of the attack, the motive and the aggravating factors.
66. The Judge made deductions for time spent in custody one year reduction. 18 months deducted to reflect delay. The sentence imposed was 2 years.
67. In the case of Maelafia v R [ 2021] SBCA 8, SICOA – CRAC43 of 2019 (1 February 2021). In that case the Court of Appeal set 10 years as starting point for Grievous Harm, after considering plea of guilty at first instance saving the victim of further stress and previous good character.
68. The Court consider use of weapon as aggravating. The Court then reduce the heard Sentence of 10 years down to 7 which now the sentence impose by the lower Court.
69. The Court imposed 5 years imprisonment but deemed to commence on the date where the offender first taken into custody.
70. In this case it is only appropriate to follow the Court of Appeal starting point of 10 years as in Maelafia v R.

Conclusion.

71. I have considered all the facts attributed before me by both Counsels and the law and those I have contributed. The maximum sentence for Grievous Harm is 15 years imprisonment.
72. It ought to be noted on the outset that the offender in causing the injury to the victim is serious. The result of it was an injury the Doctor described as serious, therefore unequaled to the case of R v Folomae where the judge read it as less serious. In this case I accept it is a serious case.
73. In any event for plea of guilty at first instance I deduct 2 ½ years from the heard sentence of 10 years.
74. From previous good conduct and show of reconciliation meant the offender show remorse from what he had done, or assist to remand the strain relationship, a deduction of further one and half years.
75. For personal responsibilities of the offender who now being married with one child, I deduct 6 months.
76. For delay I further deduct 6 months. And for 7 months spent in custody I deduct from this sentence as well.
77. The offender will serve a sentence of 4 years and 3 months. The Sentence to commence today.

The Court.
Justice Rex Faukona.
Deputy Chief Justice.