Regina v Gora [2016] SBMC 18; Criminal Case 1456 of 2015 (25 July 2016)

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

(Criminal Jurisdiction)

Criminal Case No: 1456 of 2015

REGINA
V
Charles gora

Prosecution: Ms. O. Ratu of the Office of Director of Public Prosecutions

Defence: Mr. L. Waroka of Public Solicitors Office
Plea Date: June 16, 2016
Sentencing Submissions: July 21, 2016
Sentence: July 25, 2016

Sentence

[1]. Following negotiation and agreement by both parties, 14 out of 17 charges were withdrawn. You then pleaded guilty to the remaining 3 charges as follows:

• (i) Two charges of intimidation contrary to section 231(1) of the Penal Code, and
  
• (ii) One count of in possession of firearm contrary to section 5(2)(a) of the Firearms Ammunition Act.
  

[2]. The complainants for the intimidation charges were your real sister and her husband. In other words, they were your own family members.

Intimidation

[3]. The first offending occurred on 11^th April 201. You were armed with a large knife and went to Nata village in Small Ngella and intimidated your sister, Rebecca Taholulana. There was no further mention in the agreed facts to show how your sister had reacted when you threatened her.

[4]. Again on 6^th June 2015 at about 10:00am, you were armed with a bush knife and went to look for your same sister and her husband, Andrew Tiosi, who were living at a village called Hanuvaivine in Small Ngella. You were very angry with Andrew Tiosi for staying with your sister while he is yet to pay bride price to your family. Upon arrival at their house, you wasted no time and threatened Andrew and his family by saying “ufala everyone must go out from area ya, me givim ufala one hour nomoa for pack up, sapos nomoa bae me cuttim ufala everyone wetem knife ya.”

[5]. Upon hearing this, Andrew and his family were very frightened of your behaviour and also, because you were armed with the bush knife. As a result, they had to move to another village called Nata settlement.

Possession of Firearm

[6]. On 9^th November 2015, police was informed that you were in possession of a homemade gun. Tulagi police then proceeded to your village and questioned you in relation to that information. You eventually admitted that you kept the homemade gun and thereafter, surrendered it to them.

Aggravating Features

[7]. For purposes of convenience, I will deal with all the aggravating and the mitigating features of the offences together.

[8]. It is clear from the facts of your case that you intimidated the two complainants whilst you were armed with the bush knife. On those occasions, you clearly planned to carry them out and not one that happened by accident. You had to go to their village or location to threaten them. Not only that, but on one occasion, you ordered them to leave their house under extreme duress. They had to relocate and made homeless by your irrational and senseless act. Further, these two victims were your family members who you ought to respect them and resolve whatever disagreement or grudges you have against them in a mature and appropriate manner. You ignored all these but decided to take the law in your own hands.

[9]. In relation to the firearm offence, it was submitted as one of the aggravating features was your possession of it without any license. In my view, that cannot be considered as an aggravating feature since it is part of the offence itself.

[10]. Perhaps, the concerning one is your deliberate ignorance and gross defiance of the lawful order from the State when you continued to possess or harbour a firearm when it was now forbidden or outlawed in our country after the ethnic tension.

Mitigating Features

[11]. In mitigation, I take into account that you are a married person with 2 children, you have no prior conviction, pleaded guilty to these offences and has good prospect of rehabilitation. You are the only male person in your family and your parents have relied heavily on you for support.

Sentencing Considerations

[12]. The usual tariff of the sentence for intimidation handed by the Courts ranged from bound over^[1], suspended sentence^[2], 6 month custodial sentence^[3] or even 2 years depending on the circumstances of the offending, the mitigating and aggravating factors, and the personal circumstances of the offender.

[13]. In the case of Kilatu v R,^[4] the defendant pleaded guilty to one count of intimidating a taxi driver and other charges. He was sentenced to 6 months imprisonment. He appealed to the High Court and the sentence remained unaltered. In that case, no weapon was used, he was not drunk and a first time offender. The Kilatu’s case was less serious to your case because no weapon was used at the commission of the offence.

[14]. In R v Tonny Ramosala,^[5] the defendant who was drunk, intimidated his father and mother after they refused to give him money. In relation to his father, he threatened him with an iron rode which fortunately, his father missed it after being shot. He was sentenced to 1 year imprisonment for that intimidating charge amongst other offences.

[15]. In R v Mose Keho,^[6] the defendant who was drunk and armed with a knife intimidated his aunty inside a Kai Bar at Rove. There was no element of planning involved for this offence. He was sentenced to 8 months imprisonment besides his other charges.

[16]. In your case, you planned to carry out this offence against the complainants and executed it against them on more than one occasion. You imposed extreme duress and ordered them to vacate their house at Hanuvaivine within an hour and said exactly that you would kill them with the knife if they failed to comply with your instruction or order. This differentiates your case with the Kilatu, Ramosala and Keho’s case.

[17]. In my view, that is a serious form of an intimidation offence and one that is at the apex of the offence under section 231(1) of the Penal Code. Hence, a custodial sentence is inevitable.

[18]. After considering what had been submitted before me by both the prosecution and defence, the appropriate penalty in my view for both intimidation offences for your case is 24 months imprisonment. This sentence will run concurrent to each other.

[19]. The maximum penalty for the offence of in possession of firearm is $3000 or 5 years imprisonment or both fine and imprisonment.^[7] The cases of R v Fataga^[8] and R v Upang, R v Hula,^[9] have been referred to me by the prosecution for consideration of the appropriate sentence.

[20]. In Fataga’s case the sentence of 4 years was imposed on the basis that the firearm was used to murder the deceased. In Upang and Hulas’ case, the three defendants, Upang, Kimisi and Bula were respectively sentenced for 6 months, 4 months and 5 months suspended sentence for the offence of possession of firearm without license. On appeal by prosecution, the suspended sentences were quashed with each to serve their respective custodial sentences which were subjected to the suspension.

[21]. In Baega v Regina,^[10] the appellant pleaded guilty at the Magistrates Court and was sentenced to 6 months imprisonment for possession of a homemade riffle found inside his vehicle during a police check. He appealed against his guilty plea to the High Court but was dismissed. Palmer J (now CJ), when he made the remarks whether or not the 6 months sentence was excessive echoed:

“Past sentences passed by the courts show that this sentence is not excessive by any means; more it would be on the lenient side.”^[11]

[22]. In your case, I take into account your lawyer’s submission that you merely kept it inside your house after it was left by one of your friends. You never at any time used it against any villager. Therefore, the appropriate penalty in my view to reflect your offending is 6 months imprisonment.

[23]. Since the firearm offence is unrelated, distinctive and occurred on a different date to the intimidation charges, I order that this sentence will run at the expiration of the 24 months imprisonment term.

[24]. Right of appeal within 14 days as of this date.

ORDERS OF THE COURT

(A) Impose total sentence of 30 months imprisonment.

(B) Period spend in custody is to be deducted from this sentence.

(C) The homemade gun be forfeited to Police and destroyed.

....................................................................................
THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] R v Alfred Waki 2005 CMC
^[2] R v Paul Soso and Ors 2012 CMC
^[3] Kilatu v R [2005] SBHC 118; HCSI-CAC 206 of 2004
^[4] See footnote 3 above
^[5] CMC Criminal Case No. 1297 of 2015 & 27 of 2016
^[6] CMC-CRC NO: 657 of 2015
^[7] Section 5 (2)(b)(ii) of the Firearms and Ammunition Act
^[8] [2003] SBHC 140
^[9] [1991] SBHC 67; HCSI-CFC 12 of 2003
^[10] [2001] SBHC 105; HC-CRAC 028 of 2001
^[11] At page 2 of the judgment