Regina v Waiti [2016] SBMC 22; Criminal Case 1534 of 2015 (8 September 2016)

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

Criminal Case No: 1534 of 2015

Regina
-V-
Aron Waiti

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

Defence: Mr. L. Waroka of Public Solicitors Office (PSO)
Plea Date: August 8, 2016
Sentence Delivered: September 8, 2016

Sentence

1. The defendant, Aron Waiti, pleaded guilty to one count of grievous harm contrary to section 226 of the Penal Code. It carries a maximum penalty of 14 years imprisonment. He was already 18 years of age when he committed the offence. Therefore, he is not a juvenile under the Juvenile Offenders Act^[1] since that legislation only applies to offenders who are under 18 years of age.
   
2. The defendant is the brother in law of the victim.
   
3. On 29^th of November 2015 between 0700hrs and 0730hrs, the victim, Ludavic Varivaiaru followed the defendant purposely to control him since he was drunk. When the defendant reached a kitchen of one of their neighbours, he looked behind and saw the victim who was following him. There the defendant pulled out a bush knife from the walling of that kitchen and walked back towards the victim and said “iutu wanfala ia.” He first cut a drum of water and later moved to the victim and punched his face. After he assaulted him, he lifted the bush knife and swung it towards him and landed on his right leg. He then for the second time raised the same bush knife and swung it at the victim and landed on his left leg. These instantly wounded him and caused him to fall on the ground. His legs were seen bleeding heavily as a result of the knife wounds.
   
4. The victim was transported to the National Referral Hospital on the same day for medical treatment. According to the medical report, he suffered wound to his right leg measuring 5cm, partially cut his artilleries tendon and also a wound to his left foot measuring 6 cm. This wound to his left foot has affected the movement of his toes on the same side. The examining medical officer also concluded that the injuries suffered by the victim had caused him pain, inconvenience and disability.
   
5. From the medical report, it is clear that the nature of the injury suffered by the victim particularly to his left foot is a serious injury.
   
6. I am urged to consider this incident occurred in a family context and therefore, this problem can easily be resolved. By implication, defendant should not to be sentenced for a lengthy term as opposed to other grievous harm offenders. This argument overlooked the fact that despite the victim is his brother in-law, he has no right to inflict serious wounds on him with the bush knife. There are limits on actions of a family member to another within a family itself. An aggrieved family member should not see or treat his/her own family member as an object to satisfy his or her anger or grudges.
   
7. What the defendant done to his own brother in-law in this case shows total disrespect and inhuman treatment towards his own family member. He treated him as his enemy or a stranger and not as a family member. No sane and responsible person can ever do this to his own brother in-law especially when it was committed against the victim who was performing a public duty trying to control the defendant who was drunk and acted disorderly inside their community.
   
8. In this case, the victim suffered pain, inconvenience and disability as a result of the knife wound. He was wounded whilst performing a public duty trying to control the defendant who was drunk and behaved disorderly inside their community. The attack on him was clearly unprovoked and uncalled for in that prevailing situation. Also, the defendant had a hostile intention to strike the victim with the knife as demonstrated by his initial behaviour and utterance of the words to him. He labelled the victim as one of his family members who he had disagreed with when he advanced towards him with the knife. Finally, he was drunk and used a bush knife being a dangerous weapon to commit the offence.
   
9. When all these aggravating factors are considered, clearly, it is a serious form of offending and one that warrants a condign punishment.
   
10. A number of cases^[2] have been referred to me suggesting the range of this offence from 3 months to 2 years imprisonment handed down by our superior court despite the fact that this offence carries 14 years maximum penalty. I am urged to consider the case of R v Harton Kana^[3] as the applicable authority to follow in light of the consideration of sentence. This is a case which the offending took place in a family setting. In that case, the court imposed 3 months imprisonment on the offender who assaulted his wife with a bush knife on her backside, right hand and leg which she had to be admitted to hospital. The offender did not have any prior conviction, was a young person and had reconciled with his wife.
    
11. Whilst the need not to strain a family relationship and to mend the relationship between family members is important in a family unit, the Court should not unnecessarily succumb to that notion and leniently sentence an offender for serious crimes committed against a family member and disregard the objective seriousness of the offence. If for the sake of family the law is applied and treated the offenders in a special way and disregard the need for deterrence then this will serve no justice to victims of domestic violence who continue to suffer at the hands of their own family members. Otherwise, this will indirectly encourage individuals in a family to take the risk of committing serious crimes against their own family members knowing that the court will leniently punish them at the end of the day.
    
12. Hence, a sentencing practice that promotes leniency for offenders who commit serious crimes against a close family member in my view needs a paradigm shift in order to gain the trust and faith that victims of domestic crimes have in our judicial system.
    
13. For purposes of this proceeding, I treat the offender not as a first offender since he had already been sentenced by this court on the 6 of July 2016 for another serious charge of burglary. I give credit to his guilty plea and take into account that he is over 18 years of age at present and a married person. I have also considered that he and the victim had already reconciled. The defendant’s father had given $300 and one shell money to the defendant during the customary reconciliation. I have no doubt that following this reconciliation their relationship is now in good terms.
    
14. The sentence that I pass must not only reflect his personal circumstances and mitigating factors but must also teach him a lesson that this offending is not accepted by the court even our communities despite his young age. In Attorney-General’s References Nos 59, 60 and 63 of 1998 (Goodwin and others)^[4], the court when highlighting the significance of deterrence despite the young age of the offender stated:
    

“When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be seriously punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra-judicially the punishment that the formal processes of law have not given. When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him. If punishment of the offender does little to heal the victim’s wounds, there can be little doubt that inadequate punishment adds insult to injury.”^[5]

15. For all the reasons narrated above, I sentence him to 24 months imprisonment for this charge as the head sentence. However, I will deduct 2 months to reflect his youthfulness, delay and his other mitigating factors. Therefore, his resulting sentence is 22 months imprisonment. This sentence will run at the expiration of his imprisonment term he currently served for the burglary charge.
    
16. 14 days right of appeal applies.
    

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

Augustine Aulanga – Principal Magistrate

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^[1] Cap 14
^[2] Michael Waraka and George Apuitau v R HCSI-CRAC 15-97, Regina v Neemia Boberio HCSI-CRC 24-92, Regina v Mosi Gasimata HCSI-CRC 114-93, Regina v Harton Kana HCSI-CRC 161-01 and Regina v Sitana [2009] SBHC 57
^[3] HCSI-CRC11-01
^[4] [1999] 2 Cr. App R. (S.) 128
^[5]At p. 131