Regina v Kaluae [2016] SBMC 19; Criminal Case 1492 of 2015 (25 July 2016)

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

Criminal Case No: 1492 of 2015

Regina
-V-
Junior Kaluae

Prosecution: Mr. I. Tebakota of Police Prosecutions Office (PPO)

Defence: Mr. B. Alasia of Public Solicitors Office (PSO)
Plea Date: July 18, 2016
Sentencing Submissions: July 19, 2016
Sentence: July 25, 2016

Sentence

[1]. You pleaded guilty to two charges. First, the charge of assaulting causing actual bodily harm contrary to section 245 of the Penal Code. It carries a maximum penalty of 5 years imprisonment. Second, the charge of armed robbery contrary to section to 293(1)(a) of the Penal Code. It has a maximum penalty of life imprisonment.

[2]. I therefore enter your conviction of your own guilty pleas.

Assault Causing Actual Bodily Harm

[3]. The offence of assault causing actual bodily harm occurred on 1^st November 2015 at about 5:30am in front a shop a Kukum area. At that time, you approached the victim, Julian Bariri, who dropped off from a cab after been drinking alcohol the night and was standing and talking to a female in front Misi shop. When you reached him, you accused him that the girl he was talking to was your brother’s girlfriend. He responded to you saying “iu save lo what me tufala talk aboutim?” When you heard that, you became angry and swore back at him saying “fuckem you”.

[4]. Without any warning, you ran to the other side of the road, picked up a stone and hurled it at him. It landed on the left side of his head and injured his left scalp.

[5]. The victim was taken to Kukum clinic for medical treatment the same day. The medical officer who treated him revealed in the medical report that the injury he suffered had affected his nervous system that controlled the movement to his mouth.

[6]. From what transpired from the facts, it described how you committed this offence as deliberate, intentional and willed act against the defenceless and drunkard victim. It is regarded as a serious form of offending in the structure of an ordinary assault causing actual bodily harm offence. This was demonstrated by serious of acts you took prior, during and after the offending.

[7]. First, you approached the victim and started to accuse him. Second, you were angry and swore back at him despite he responded to you in more less a straight forward manner. Third, you had to search for a stone which you did and hurled it at him - a drunkard person. Finally, you caused him to suffer injury to his left lateral scalp on his head after you shot him with that stone. That injury had affected his nervous system which controlled the movement to his mouth. He had to attend to Kukum clinic for medical examination and treatment.

[8]. When all these factors are considered together, they support the conclusion that this was a serious form of an offence under section 245 of the Penal Code and one that cannot be easily tolerated but rather deserves an immediate custodial sentence.

[9]. In mitigation, your lawyer had urged the Court to consider your youthfulness since you were 13 years of age. You also regretted what you did and will take steps not to see it repeated in future. You have no previous criminal conviction. You also very cooperative with police which eventually resulted in your unequivocal guilty pleas. You also wanted to continue with your education as soon as you release from prison.

[10]. I think there are merits in that submission. Rather than to ignore them, I accordingly take them into account in considering your sentence.

[11]. In terms of sentence, our law in this jurisdiction requires you to be sentenced under the Juvenile Offenders Act in particular, sections 12 and 16. Since I reached the view that custodial sentence is the appropriate disposition of this case, section 16(j) is relevant to your case. That is, it provides that imprisonment is one of the options for the Court to consider when sentencing a young offender.

[12]. I am unable to find any range of sentence for this offence for young offenders. However, an indication of sentence can be gleaned by looking at the sentencing range for adult offenders. For adult offenders, the range is from fine to 28 months imprisonment.^[1]

[13]. Conversely, for juveniles, the sentence is expected to be less on the scale. From what had been submitted before me from the prosecution and defence in mitigation and the need for deterrence, the appropriate penalty for your case in my view is 15 months imprisonment.

Robbery

[14]. Fourteen days after your first offending or in other words, on 15^th of November 2015 at about 7:17am, you teamed up with three other male youths and went to a shop called New Generation along the Kukum Highway. One of your associates was armed with a large bush knife. When you reached the shop, your associate who was armed with the knife walked straight to the cashier and threatened her with the bush knife for money while the rest of you helped yourselves with a sleeve of Pall Mall cigarette and other goods inside that shop. After that quick robbery, you all escaped out of that shop with that single sleeve cigarette and a cash of $500.

[15]. You were arrested by police on 20^th of November 2015. When questioned by police, you voluntarily admitted your involvement and that you and your associates had sold that sleeve cigarette and had already shared the money amongst yourselves.

[16]. There are few aggravating features in light of the facts of your offending. First, you robbed that shop with the company of persons. When an offence is committed by a group of persons acting together or gang robbery in other words amounts to an aggravating feature. It undoubtedly creates fear and has the effect of terrifying those who were robbed due to the presence of a group of armed robbers. Second, your aided your associates to cause fear to the cashier and others who were present in that shop that early morning. Third, your aided your other assailants to cause financial loss and deprived the owner from the right to benefit from the $500 and the sleeve of cigarette.

[17]. In terms of mitigation, I will adopt all the mitigating and personal factors that had been stated in paragraph 9 of this sentence. Besides, the items stolen from the offending was only $500 and a sleeve of cigarette which in my view is not significant.

[18]. The offence of robbery you committed is a very serious offence as reflected by its maximum penalty of life imprisonment. It is a harshest penalty provided by our law - the same penalty provided for a conviction for murder or rape for example. Therefore, custodial sentence is an inevitable appropriate sentence.

[19]. Whilst there is no issue that you were very young and only 13 years of age at the time of the robbery, what concerns me is your action speaks volume than your age. In other words, your behaviour as demonstrated by your involvement in a gang robbery can only be expected from mature persons or persons in an advance age and not from a 13 year old youth like you. Despite your young age, what you have done by involving in an armed robbery 14 days after you had seriously assaulted another person clearly reflected you had developed a behaviour susceptible to committing crimes. It began at first with a petty crime but then elevated to a serious crime.

[20]. Given your state of mind combined with your action at the time of the offending was contrary to a 13 year old but resembled an adult or an already grown up person, my duty is to ensure youth crimes are discouraged by giving effect to the intention of the legislation and not to ignore the objective seriousness of this offending when it comes to sentencing of a young offender like in your case. Otherwise, the current and likeminded young offenders will continue to take advantage and hide behind the cloak of youthfulness simply to escape lengthy custodial sentence – a worrying trend in light of the current realities and experience faced in our country.

[21]. In term of sentence, I am obliged to follow the Juvenile Offenders Act. There is also no established tariff for this offence for young offenders. Hence, this case has to be considered on its own set of facts in order to decide what should be the appropriate sentence.

[22]. Due to the fact that the value of the property and money you received was not significant, in my view, the appropriate sentence for your armed robbery case is 2 years imprisonment. This sentence takes into account all your mitigating, personal and aggravating features.

Concurrent or consecutive sentence

[23]. The next question now is whether I should impose a concurrent or consecutive sentence.

[24]. The guideline on whether or not to impose a concurrent or consecutive sentence is provided in the case of Augustine Laui v Director of Public Prosecutions.^[2] In that case, Ward CJ, as he was then, stated:

“When sentencing at the one time for two or more offences, the court will always need to consider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, the sentences should be concurrent, if not then consecutive sentences are appropriate subject to the overall total.”^[3]

[25]. The offences you committed occurred on different dates involving different victims. They were unrelated, distinctive and different in character. Clearly, consecutive sentence is the appropriate sentence for this case. Therefore, I order that the sentence of 2 years in prison will be consecutive to the 15 months imprisonment for the assault causing actual bodily harm offence.

[26]. The overall or total sentence therefore is the offender, Junior Kaluae, will serve 3 years and 3 months imprisonment for both offences. This sentence in my view does not have a crushing effect on your prospect of pursuing your education after your release from prison. This is because you are still very young and after three years from today, I don’t see any significant problem that you may not able to pursue your education. In any event, the blame has to be also on you. You ought to think properly about the consequences of your actions before committing those crimes.

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

ORDERS OF THE COURT

(A) Impose 3 years and 3 months imprisonment.

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

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

Augustine Aulanga – Principal Magistrate

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^[1] R v Saeniore [2005] SBHC 173 and R v Chris Panio [2016] SBMC 4
^[2] (Unrep. Criminal Appeal Case No. 11 of 1987)
^[3] at pages 2 – 3