Regina v Taloikwai [2015] SBMC 1; Criminal Case 633.2009 (16 March 2015)

IN THE CENTRAL MAGISTRATES COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)

Criminal Case No. 633 of 2009

REGINA

V

MICHAEL TALOIKWAI

Coram: AULANGA (Magistrate of the First Class)
Prosecution: Mr. Tepakota
Defence: Accused in Person
Plea date: March 13, 2015
Sentence delivered: March 16, 2015

SENTENCE

1. On 13th of March 2015, Michael Taloikwai ("the accused") pleaded guilty to count of common assault contrary to section 244 of the Penal Code. His conviction was entered forthwith on his own guilty plea.
   
2. Section 244 of the Penal Code[1] states:
   

"Any person who unlawfully assaults another is guilty of a misdemeanor, and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, shall be liable for imprisonment for one year."

3. The facts of the case showed that about or after 3:00am on 8th of May 2009, in front of Paradise night club, the accused approached the victim, Calton Melo and accused him as being the person who spit on him. The victim politely responded back that he did nothing to him. Despite his explanation, the accused hit the victim with his right hand closed fist and landed on his right side eye. His head got dizzy and fell back towards the iron-gate. The victim sustained minor injury as a result of the assault.
   
4. The accused hit the victim in the presence of the security guards and some of his relatives. The victim shouted for assistance but the by standers did nothing to help him. The accused walked away from the scene later in that early hour of the morning.
   
5. Apart from tendering the "Brief Facts", there was no submission by the Prosecution as to the aggravating features which the Court ought to consider. Moreover, there was no medical report to show the nature of the injury which the victim had suffered as recorded in the brief facts. It should be noted that the prosecution's duty is to assist the Court especially in such hearing like this present case. Despite no medical report, it can be easily accepted that no doubt the victim must have suffered harm[2] as defined under section 4 of the Penal Code.
   
6. The prosecution also submitted that the accused was not a first time offender. He had 5 previous convictions.
   
7. The prosecution further submitted that he was 24 years old at the time of offending and at present he was already a 29 old father with no children. He has no formal employment.
   
8. The accused was given an opportunity to address the Court on his behalf. He said that he is a married person with no children. His wife was unemployed. He lived in his own house in Honiara with his wife and involved in fishing activities to earn money for his living. He said that he and the victim had already talked to each other but denied that he did not compensate the victim with any money. In this case, the absence of any letter or anything evidence to that effect from the victim of any reconciliation and the accused own admission for not giving any money to the victim showed to this Court that there was not any formal reconciliation done between the victim and the accused despite simply talking to each other.
   
9. The Court's record showed that he was arrested on the 21st of January 2015 and was released on bail on the 18th of February 2015. A total of 28 days was spent in custody. His remand was pursuant to a warrant of arrest dated the 8th of June 2009 issued against him for his failure to attend to his present case.
   
10. This Court noted that there was a delay in having this matter finalized before this Court. However, whether or not the delay was unreasonable is a matter for this Court to consider and decide upon in light of the Court's record. In R v Fakatonu[3], Ward CJ, clearly stated that in cases where the delay was caused by the accused is not unreasonable. In R v Willie Abusae[4], Palmer J also stated that the actions of a defendant in causing such delay should also be taken into account.
    
11. From the Court's record the accused was due to appear to court on the 8th of June 2009 after he was charged for this present case. His failure to appear resulted in the warrant of arrest being issued against him. He did not voluntarily turn up in court until he was arrested on 21st of January 2015. From there on, this matter finally progressed in court. This was 5 years and 7 months delay to have this matter mentioned in this Court.
    
12. Had the accused took his case seriously, attended and advise his lawyer Ms. Anderson as he claimed or the police authorities for listing of this matter in 2009 or thereafter, his case should have already been dealt with some years ago. This ignorance or avoidance cannot be tolerated by this Court. This delay in the Court's view is not unreasonable as it attributed mainly by the accused.
    
13. In considering the appropriate sentence, the aggravating features and mitigating features must be considered.
    
14. There are number of aggravating features in this case that this Court found. They are:
    
    • (i) the attack was unprovoked,
      
    • (ii) the victim was attacked during the night which put him in a vulnerable position;
      
    • (iii) the victim was attacked in front of others, some of them were the accused relatives. It was a humiliating and embarrassing experience for the victim during that early morning; and
      
    • (iv) harm suffered by the victim as a direct result of the assault.
      
15. Since there was no medical report in this case, the Court cannot speculate on the extent and nature of any injury purportedly suffered by the victim. Hence, the Court won't put much weight on the injury submitted by the prosecution except to say that the victim at least suffered harm as a result of this incident.
    
16. The mitigating features noted by the Court are:
    
    • (i) the accused pleaded guilty at the first instance. This shows that he admitted his own wrong, saves the Court's time and resources and, avoids having to call the witnesses to come to court; and
      
    • (ii) The accused showed remorse.
      
17. Matters personal to him is that he was a married person who has family to look after and support. He was not a first time offender.
    
18. The maximum penalty provided for this offence is one year imprisonment. The length of the imprisonment reflects the need for people not to indulge themselves in this offence. In Regina v Kemakeza[5] CJ Palmer stated:
    

"the level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty. The more serious an offence the greater the maximum penalty imposed"[6].

19. In deciding the appropriate sentence each case has to be decided on its own facts. Besides the aggravating features and mitigating features, the Court has to take into account issues of deterrence, retribution and rehabilitation (see R v Oge[7]).
    
20. The accused had five previous convictions. However, the Court must be mindful of sentencing offenders with previous convictions as stated in R v Su'umania[8] where CJ Ward stated in relation to sentencing offenders with previous convictions:
    

"When sentencing persistent offenders the court must make protection of the public the principal consideration in determining the length of sentence.

It is well settled however that even in such cases the sentence must be still be appropriate to the offence and the court must be careful not to sentence the accused for his previous convictions as was explained by Spreight JA in Kaboa v. R (1980/81) SILR 43 at 46. Thus, whilst previous good character may reduce a sentence, previous bad character cannot increase it beyond the proper term but the court can and should consider previous convictions in assessing the character of the man before it and the likelihood of his changing his ways(underlined mine)."[9]

21. The accused 5 previous convictions were for offences involving drunk and disorderly, resisting police arrest, possession of a weapon and common assault. All dated back to 2008. His previous convictions simply showed that he is not a person new to this Court and has been in the past been dealt with amongst other offences, the same offence he pleaded guilty to in this present case. He committed this present offence less than a year after he was confronted by this Court. Hence, he is not a first time offender and had been sentenced by this Court on 3 separate occasions for all his previous convictions in 2008. His repetitive act in this present case showed that he has little contribution of being a law abiding person despite having confronted with this Court in the past. This Court must make protection of the public in its principal consideration.
    
22. The accused deliberate decision to assault the victim despite his polite explanation that he had nothing to do with him is clearly unlawful and without any lawful justification. Hence, this Court must impose a sentence that sends a message to our community that person(s) who assault another will be punished. Neither the Courts nor the community can tolerate such offending and an appropriate sentence must be imposed.
    
23. Besides the above, the Court must also ensure that his family won't suffer much in his absence and more importantly, enabling his prospect of reforming his character and attitude and thereafter upon his release, to be a responsible family man, elder and good citizen of this country.
    
24. Having carefully taking all these into account and balancing them with the aggravating and mitigating features, the appropriate sentence in this case is 4 months imprisonment. I order that this sentence is reduced by 1 month to reflect his guilty plea.
    
25. The resulting sentence therefore is that the accused will serve 3 months in prison. Time spent in custody is to be taken into account.
    
26. Accused has a right to appeal this sentence within 14 days pursuant to section 285 (1) of the Criminal Procedure Code.
    

ORDERS OF THE COURT

(a) Impose sentence of 3 months imprisonment,
(b) The time spent in custody is to be taken into account.

THE COURT

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^[1] Ch.26
^[2] “Harm” means any bodily hurt, disease or disorder whatever permanent or temporary
^[3] [1990] SBHC 115
^[4](Unrep. Criminal Case No. 28 of 1995)
^[5]HCSI-CRC 467 of 2007
^[6] At paragraph 19
^[7][2004] SBHC 72
^[8](Unrep. HCSI-CRC 00287)
^[9] At page 2