Regina v Panio [2016] SBMC 4; Criminal Case 1207 of 2015 (15 March 2016)

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

Criminal Case No. 1207 of 2015

REGINA

-v-

CHRIS PANIO

Prosecution: Mr. Lyndon Adifaka of Police Prosecutions Office
Defence: Mr. Allan Tinoni of Public Solicitors Office
Plea Date: February 24, 2016
Sentencing Submissions: March 3, 2016
Sentence Delivered: March 15, 2016

SENTENCE

1. On 24^th of February 2016, you pleaded guilty to one count of assault causing actual bodily harm contrary to section 245 of the Penal Code. By your guilty plea, you now admitted that you assaulted and inflicted bodily harm to the victim, JinLihu, on 21^st of September 2015 at Bonotalogging area in Renbel Province. Your guilty plea is also an acceptance that you have committed an offence which carries a maximum penalty of 5 years imprisonment and prepare to receive any sentence to be imposed on you by this Court.
   
2. For purposes of my sentence, I admit the entire agreed facts tendered to Court by the prosecution. Those facts are clear and agreed to by both parties for admission by the Court. To avoid selecting only some of the facts or adopt them on piecemeal basis, I rather quote the facts I admitted as follows:
   

“In the morning of the 21^st of September 2015, the victim namely, JinLihu, who is an Asian employed by the BMC logging company operating in west Rennel, RenbelProvince, left for his work site in Bonota for work, in one of his company’s vehicle (hilux) with his other colleagues.

As they approached Niugoa they were stopped by the defendant Mr. Chris Panio who requested for a lift on board the vehicle.

Defendant’s request was accepted and he was given a lift on board the said vehicle and was dropped off at theSamlimsan base.

During when he was dropped at the Samlimsan base he insulted the victim with bad languages such as “fuck you and so on.” This was however ignored by the victim since he observed the defendant was drunk at the time so they left.

Unfortunately after they left the Samlimsan base, their vehicle experienced mechanicalproblems and could not travel any further and as a result the victim had to wait for another vehicle to travel to work.

While he waited one other vehicle arrived, a dump truck number 24 however as it came and stopped he saw the defendant came out with a long bush knife and walked straight to him.

Without saying a word the defendant raised the knife over his head and struck the victim with it. Luckily the victim jumped backwards to avoid the knife and fell to the ground.

When he fell on the ground the defendant stood over him and punched him several times on his facial area which as a result he sustained swelling behind his right eye, and one on his forehead above his right eye. Further, he also got superficial laceration at the base of his right pointer finger. The matter later reported to the police.”

3. From those facts, I noted that there are number of aggravating features present in your offending:
   
   • (i) You hit the victim not once but several times to his face when he was lying on the ground. The fact that you continue to hit him more than once is an act of gross cruelty and inhumane to the victim. It was more than necessary to cause him bodily harm and pain.
     
   • (ii) You attacked an innocent person who did nothing wrong to you. The assault was unprovoked and uncalled for in the circumstance of your case. You assaulted himwithout any good reasons only to satisfy your own anger and grudges.
     
   • (iii) You were seen in possession of a large bush knife when you attacked the victim. Despite no evidence to show the swelling and the pain suffered were from the use of the knife, you were armed when you attacked him. Your action clearly put him in a vulnerable position for his safety and caused imminent fearon him because of the presence of that knife. In my view, a weapon was used to assist in the commission of the offence.
     
   • (iv) You were drunk when you assaulted him. You knew that your conscience to think properly before taking action was not good at that time since you were under the influence of alcohol. The presence of alcohol is not a mitigating factor but an aggravating feature in any commission of an offence.
     
   • (v) As a result of your assault, the victim sustained injuries and had to be transported to Tingoa Health Centre for medical treatment. He suffered pain to his forehead, swelling and redness to his right eye area. He had to be medically treated in order to relieve the pain. Those bodily pains he suffered were generated from your action.
     
4. On the other hand, I took into account and considered for purposes of your sentence that you are a first time offender. You are single and a young person of 25 years. You pleaded guilty to the charge which reflected you an honest person. You save the Court’s time, resources and also the victim for not having to come to Court to retell the ordeal he went through. You are a person of good character, cooperated well with police and has good prospect of rehabilitation. I noted that your parents also depend on you for their daily support.
   
5. The facts of this case demonstrated a case where a foreigner unnecessarily suffered pain and injuries which in the circumstance of your case clearly uncalled for, unprovoked and unwarranted. It is an act which can be characterised as sadistic, cruel, cowardice and lack of respect for humanity. I say this because you were generously picked up by the victim in a truck and dropped off at a location you travelled to. Instead for you to say thank you to him for transporting you, you swore back at him. He drove away from you since you were drunk and didn’t say any offending word to you. Yet, you armed with a large bush knife and looked for him and successfully reached him. You saw him when he was waiting to be picked up by another truck and without any good reason at all, you fiercely attacked him and continued to hit his face several times even when he was lying defenceless on the ground. It must be a very traumatic and embarrassing experience for the victim being attacked in a foreign country and in that like manner. He had to be transported to Tingoa clinic for medical treatment. Besides the swelling and redness he suffered to his right eye area and forehead, he also suffered pain behind his head as a result of his fall when he avoided the knife you swung at him. It was fortunate that he missed the knife otherwise, the consequences would be more severe and a more serious charge is anticipated.
   
6. Based on those reasons, I find the level of your culpability clearly falls above the middle range of the seriousness of this offence. Had you use any weapon for the commission of this offence,it would be towards the end of the seriousness of this offence or perhaps requires a different criminal offence.
   
7. In terms of sentencing, past cases show that the penalties imposed by the Court ranged from bound over, fine, suspended sentence and custodial sentence depending on the facts of the case. The more aggravating the case, a sterner penalty is expected. Likewise, the less the aggravating features, the lesser penalty is expected.
   
8. Your lawyer submitted that the injuries sustained is less serious and your level of offending is at the lower scale of this offence. He urged the Court to consider imposing a fine or a suspended sentence as the appropriate sentence for your case. I disagree with this submission. The agreed summary of facts clearly shows the accused level of culpability is not minimal but substantial. In other words, it is above the middle range of the seriousness of this offence. The pain and harm are sustained are from those vicious attack and are expected in the circumstances. If the injuries are serious then obviously the present charge is improper, it will be abandoned and replaced with a more serious offence. Furthermore, the presence of 5 aggravating features I mentioned earlier clearly reflected his degree of participation.So any submission that goes against the grains of the facts must be rejected as unreliable and misconceive.
   
9. On this same note, a weapon was used in the commission of the offence. The accused was armed with a large bush knife when he attacked the victim. He fell on the ground because he tried to avoid the bush knife. The use of the bush knife made him fell on the ground. He quickly took advantage of it and successfully punched the victim. Because of that, a caveat imposed by section 44 (2) of the Penal Code now applies. That is, a suspended sentence is not applicable to this case. I also come to an irresistible conclusion that a bound over and fine are also not applicable given his level of culpability.
   
10. Having rejected the offer for fine, good behaviour and suspended sentence, the next issue now is to consider the length of custodial sentence to be imposed on the accused. So let’s look at some of the sentences handed down by the Courts for guilty plea matters for this offence.
    
11. In Kilatu v R,^[1] the accused was initially sentenced for 2 years imprisonment following his guilty plea for the offence of assault causing actual bodily harm. He committed the offence after he was offended by the victim inside the prison at Rove. Victim sustained injuries to his lips and tooth and was hospitalised for three weeks. No mention of weapon used in the commission of the offence. On appeal, his sentence was reduced to 1 year imprisonment by the High Court. The reduction of the sentence was due to the failure of the sentencing Magistrate to give sufficient weight to the mitigating factors on behalf of Kilatu.
    
12. In R v Patare,^[2] the accused pleaded guilty to assault causing actual bodily harm beside his other rape charge. He useda torch to threaten and frighten the victim who was 15 years old and his niece. He eventually used that torch to assault the victim. There is no record of any injury suffered by the victim. He was sentenced to 1 year imprisonment.
    
13. In R v Fakatonu,^[3] the accused was previously sentenced to 4 months for the offence of assault causing actual bodily harm. The facts are unclear in the review decision. On review by the High Court, it was increased to 12 months on the basis that the sentence was too lenient.
    
14. In R v Chacia,^[4] the accused was sentenced to 18 months after he pleaded guilty to the offence of assault causing actual bodily harm. That sentence was confirmed on appeal by the Court of Appeal. In this case, the accused viciously assaulted the victim (a 65 year old woman) to her mouth, breast, shoulder, rib and back before he raped her that same night. No weapon was used. The trial Court described that attack as “outrageous”.
    
15. A closer look at the range ofthe sentenceshanded by the Courts for this offence did not exceed 3/5 of the maximum penalty of 5 years, even in contested matters. In my view, It appears that the Courts are too succumb and easily drawn into the offender’s bargaining power and fail to serve the community’s interest for the need to deter this type of offences taking into account the public condemnation and revulsion of this offending in our country. In Attorney-General’s References Nos 59, 60 and 63 of 1998 (Goodwin and others)^[5], the Court when highlighted the significance of deterrence 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.”^[6]

16. The principle in that case is a good remainder for the Courts to take heed of the need for deterrence when dealing with crimes committed through use of violence against innocent victims. I have observed the trend of sentencing imposed by this Court and even the High Court and they fail to serve the community’s interest and even the victims of this type of offending. If the Court is seen as an institution which victims of crimes have the faith for protection and also to do them justice for the suffering they gone through then the Courts must not turn a blind eye to that realitybut must objectively deter this type of offence in our country. The question is how long will the Courts keep on waiting to issue deterrent messages that public will know and take a positive step to avoid the risk of committing this offence?If our Courts impose a sentence that is too lenient, it will indirectly encourage potential offenders to continue committing these offences knowing that they will be leniently punished by the Court. This will serve no purpose for the need for deterrence and in my view erodes public confidence in the administration of the criminal law and runs a danger of making a mockery to the maximum penalty provided by the legislation.So let there be no mistake, the fact that it has a maximum penalty of 5 years imprisonment means how serious this offence is treated by our law makers.
    
17. Having looked at your entire culpability, my view is that the starting point for guilty plea matters for this type of offending with repeated aggressive punches to a victim’s head region which require medical treatment should be 2years imprisonment. This will depend on the aggravating and mitigating circumstances whether to increase or decrease the sentence. If weapon is used in the commission of the offence then it will be higher than this. In a case where only a single assault and with no presence of alcohol then a starting will be considerably low.
    
18. The facts of your case are more disturbing almost resembles the case of Chachia and Kilatu. However in Kilatu’s case, the victim used offensive words against the accused which resulted in the commission of the offence. In your case, you simply assaulted the victim who did not even say any provocative, insulting and offensive words. The facts in Chacia case is more serious compared to your case.
    
19. Having considered the aggravating features and mitigating features, the appropriate sentence in my view for your case is 2 ½ years imprisonment. To reflect the utilitarian value of a guilty plea matters as stated in the case of R v Qoloni^[7], a discount of 10-25% on the sentence is applicable in this case. Hence, I order that 2 months will be deducted to reflect your guilty plea and the mitigating features. I further order that another 2 months will be further deducted to reflect your youthfulness and the delay to have this case finalise in Court.
    
20. The resulting sentence therefore is that the accused,Chris Panio,will serve 26months in prison at the rising of the Court. Any time spent in custody is to be taken into account.
    
21. Accused has right to appeal this sentence within 14 days as of today.

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

Augustine Aulanga (Mr)

(Principal Magistrate)

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^[1] [2005] SBHC 118
^[2] [2014] SBHC 79
^[3] [1990] SILR 97
^[4] HCSI-CRC 95 of 2012
^[5] [2002] EWCA Crim 699; [1999] 2 Cr. App R. (S.) 128 at p. 131
^[6] Also referred to in R v Pati HCSI – CRC 288 of 2011
^[7]CHSI-CRC 76 of 2005