Regina v Balou [2015] SBMC 7; Criminal Case 417 of 2015 (19 August 2015)

IN THE CENTRAL MAGISTRATES COURT )
OF SOLOMON ISLANDS AT HONIARA )

(Criminal Jurisdiction)

Criminal Case No. 417 of 2015

REGINA

V

BEN NYIBELA BALOU

Coram: AULANGA (Magistrate of the First Class)
Prosecution: Mr. Tepakota of Police Prosecutions Office
Defence: Mr. Alasia of Public Solicitors Office
Plea date: May 20, 2015
Sentence delivered: August 19, 2015

SENTENCE

1. On 20th of May 2015, you pleaded guilty to common nuisance contrary to section 172 of the Penal Code, obstructing a police officer namely Dona Oli contrary to section 247 (b) of the Penal Code and assaulting the same police officer whilst she was performing her duty contrary to section 190 of the Police Act 2013. The common nuisance charge has a maximum penalty of one year imprisonment while obstructing a police officer and assaulting a police officer have maximum imprisonment terms of two years and five years respectively. Those offences were committed at Riffle Range area on 4th of May 2015 after 8:45pm or in other words, during the night.
   
2. This case was initially set for trial on 27th of July 2015 for the charge of malicious damage that you denied, however, that trial was vacated after prosecution withdrew the charge due to insufficient evidence. After the withdrawal, this matter was adjourned on four occasions to allow both the prosecution and the defence to file their written submissions on sentence and also to accommodate the Court's ongoing commitment on circuit. Despite that lengthy adjournment, only the prosecution had filed its written submission in time. Your lawyer had just submitted his written submission this morning, unfortunately, I will proceed with this sentence because to further adjourn this matter will not doubt will simply take much of the Court's time and resources and further won't be in the public interest. I note there is a delay of about 105 days since you were remanded in custody. I will deal with that issue of delay later on in my sentence.
   
3. The admitted facts of your case showed that after 8:45pm on 4th of May 2015, a police team went to Riffle Range area, West Honiara to attend to a disturbance near a residence occupied by John Bodkin. That disturbance was caused by playing loud music and shouting by a group of boys whom you were one of them. When police arrived, you approached the police vehicle and ordered police to leave that place otherwise they will be stoned. Upon hearing this, one of the police officers advised you not to order police since they were doing their job. You left the police vehicle and went under Bodkin's house. You then picked up a stone and threw it at the vehicle which as a result of your action, a police officer by the name of Ms. Dona Oli sustained abrasions to her left eye. That injury was confirmed in a medical report by John Tuabele from the Eye Department at the National Referral Hospital.
   
4. In your case, I find the following to be aggravating features to the three offences:
   
   • (i) You cause disturbance to the peace, quietness and privacy of those whose families whose house were close to where you and your friends were drinking at that part of the night. That disturbance was from loud music and shouting whilst drinking alcohol;
     
   • (ii) You disrespected police by ordering them to leave that area. Youract of ordering them to leave the area did not only disrespect their community policing duties but can be seen as an attempt to stop any lawful interference to your unlawful activities;
     
   • (iii) the victim was attacked during the night which put her in a vulnerable position;
     
   • (iv) the victim was a police officer who should be respected at all times when performing her lawful duties;
     
   • (v) You use a stone during the time of the incident. A stone when someone in your statue apply force to it in a shooting motion will no doubt capable of producing serious injury[1];
     
   • (vi) You unnecessarily caused the victim Ms. Dona Oli to suffer abrasions to her left eye; and
     
   • (vii) You were under the influence of alcohol when you committed these offences.
     
5. On the other hand, you pleaded guilty at the first opportunity which saves this Court's time and resources. This shows you are honest to admit your own wrong. You are a first time offender with no previous conviction. You are single and still a young person with more youthful live ahead. I give full credit to all those mitigating and personal features in your favour.
   
6. In your case, you knew very well that playing loud music and shouting especially in a neighborhood like Riffle Range area after 9:00pm would disturb those who live closer to where you and your friends were drinking. There may be little babies, children, elders and other respected citizens of this country who deserve quietness and privacy in that area. Yet you disregarded that and continue with that no care attitude. Not only that, you decided to confront the police officers and ordered them to leave that area when they arrived. You also assaulted one of them which resulted in her sustaining injury to her left eye. This kind of action must be condemned by this Court. They ought to be respected because they are our State administrators of law and order in our country. Not only that but they are also tasked with an important duty to ensure that every citizen of this country lives under the comfort of peace, safety and orderly behavior. In Fafunua v R[2], Palmer CJ stated the need to respect police officers:
   

"Police Officers are representativethe StateState in the administration of the rule of law and should be respected when they arrive at any scene of crime. They musallowed to perform their duty in ensuring that peace and normality is restored whether it b it be in a public place or in aatrivome. They are mediatodiators of peace, under strict duty and discipline, and are extensions of the arm of the People in so s laworder is concerned. They have no personal agenda or interest to fulfil when attenattendingadinga crime scene and therefore should never be treated with hostility. They are there to keep the peace and protect life, limb and property...........An immediate cial sentence must be expected when any police officer is attackename="fnB3" href=href=href="#fn3">[3]

7. I agree with this authoritative statement and obliguphold it in my decision.
8. I 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[4], Ward CJ, clearly stated that in cases where the delay was caused by the accused is not unreasonable. In R v Willie Abusae[5], Palmer J also stated that the actions of a defendant in causing such delay should also be taken into account.
   
9. I noted that this matter took more than 3 months to complete. Those delays were caused mainly because of your attempt to get legal representation and the need for both the prosecution and the defence to settle one of the charges against you which was already withdrawn. Part of that was due to the administrative issue by the Court. In my view, those delay were not undue as it would have been more than a year. Although there were some delay, it is quite normal considering the amount of work for the investigators, the prosecutors and the Court.
   
10. I now turn to consider what sentence to be imposed on you. The principle is that each case has to be decided on its own unique facts and circumstances. The Courts are empowered to utilise the maximum penalty provided by the legislation. A glean of the past cases fails to serve the community expectations as well as the Court for the need to deter this type of offending. Therefore, the Court must be sensitive to that failure and adjust accordingly. In R v Ball[6], Hilberry J, stated:
    

"In deciding the appropriate sentence a Court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living."[7]

11. These statements highlighted by Judge Hilberry are very relevant and applicable for this Court to follow when considering the issue of general deterrence in light of the need to deter this type of offending.
    
12. Besides the above, the Court must also ensure that upon your release, you will be a reformed and resourceful young person who none other but to be good citizen of this country.
    
13. Having carefully taking all these into account and balancing them with the aggravating and mitigating features, the appropriate sentences for your case are as follows:
    

Count 1 - common nuisance – 3 months imprisonment.

Count 2 – obstructing police officer – 6 months imprisonment.

Count 3 – assaulting police officer –1 year imprisonment.

14. I order that all counts will be served concurrently since they all committed at the same time. I further order that the 1 year concurrent sentence is reduced by 3 months to reflect your guilty plea and some delay caused in this matter.
    
15. The resulting sentence therefore is that the accused Mr. Ben Nyibela Balou will only serve 9 months concurrent sentence. Period spent in custody is to be taken into account.
    
16. Accused has a right to appeal this sentence within 14 days pursuant to section 285 (1) of the Criminal Procedure Code.
    

THE COURT

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^[1] Section 84(6) of the Penal Code
^[2] [2004] SBHC 131
^[3] At page 4
^[4] [1990] SBHC 115
^[5](Unrep. Criminal Case No. 28 of 1995)
^[6](1951) 35 Cr.App.R. 164,
^[7] At page 2