Regina v Funubana [2017] SBMC 37; Criminal Case 464 of 2013 (21 August 2017)

IN THE SOLOMON ISLANDS MAGISTRATE’S COURT )
AT HONIARA )

CRIMINAL JURISDICTION

Criminal Case No. 464 of 2013

REGINA
-v-
EDDIE FUNUBANA

Date of hearing: August 21^st, 2017
Date of sentence: August 21^st, 2017

Mr Konle for Prosecution
Mr Kwalai for the Defendant

SENTENCE

The accused pleaded guilty to the following charges:

1. Kidnapping contrary to section 251 of the Penal Code. Has 10 years imprisonment as the maximum penalty;
   
2. Demanding with menaces contrary to section 295 of the Penal Code. Has 5 years imprisonment as the maximum penalty;
   
3. Assault causing actual bodily harm contrary to section 245 of the Penal Code. It has 5 years imprisonment as the maximum penalty;
   
4. Threatening, abusive or insulting behaviour contrary to section 178(n) of the Penal Code. It has 1 month or fine of $1000 as the maximum penalty;
   
5. Consuming liquor in a moving vehicle contrary to section 66(1)(a) of the Liquor Act. It has a maximum penalty of fine of $10,000 or 1 year imprisonment;
   
6. Driving unlicensed motor vehicle contrary to section 7(1) of the Road Transport Act. It has a maximum penalty of fine of $5000 fine or 6 months imprisonment;
   
7. Driving without a driving license contrary to section 20(1) of Road Transport Act. It has a maximum penalty of fine of $5000 or 6 months imprisonment; and
   
8. Larceny from person contrary to section 270 of Penal Code. It has a maximum penalty of 14 years Imprisonment.
   

Of the 8 charges, 3 are felony (kidnapping, demanding with menaces and larceny from person) whilst the rest are misdemeanours.

The facts that uncovered how the accused committed these offences are very disturbing. Disturbing because they revealed how an innocent person came to be a victim at the hands of the accused and his friends in which he was subjected to kidnapping and sustained assaults in and outside of the bus for the purpose of wanting to get money from him. His mobile phone and $200 were also stolen from him during the course of being kidnapped and assaulted in the bus. It must be a very traumatic experience for the victim having to be treated by persons totally strange to him in that like manner.

It was fortunate for him that he escaped out of the window of the bus when the bus stopped at Kakabona area, otherwise, what follows will be even more life threatening or horrific for this lone victim.

When one looks at the entire facts, they uncovered these aggravating factors:

1. He was the main leader in the way he participated in the commission of the offences against the victim. First, he was the driver of the vehicle/bus. Second, he was the one who ordered the two ladies to get out of the bus after the victim came in the bus at Greyleen bus stop at Ranadi. Third, he was the one who turned the bus back to the eastern side of the town. Fourth, he decided to use the biggest weapon (long bush knife) against the victim compared to his co accused. Fifth, he was the one who demanded $100,000 from the victim otherwise they would kill him at their place. Finally, he participated to assault the victim when the victim was pulled over along a bush track at an unknown location at GPPOL, a location outside the outskirt of Honiara.
   

When all these actions are put together, clearly, he played a significant role in committing the offences against the victim.

2. The offending against the victim was carried out inside a moving vehicle. This is aggravating because it provides a sense of insecurity to the victim to get assistance from the public. The use of the vehicle during the entire journey in order for them to carry out the offences prevents all possible means for him to get help. It also make it easier for them to transport the victim to whatever location that suit them to achieve what they had intended to do to the victim.
   
3. The accused committed the offences in the company and with the assistance of his 3 other friends/defendants. This showed how the victim was outnumbered by the accused and his friends and the power imbalance that exists. The facts showed that the victim was easily beaten, threatened and confined by the accused and his other friends. That is an example of how he was overpowered and cannot withstand the combined strength of the accused and his friends.
   
4. The accused was drunk when he committed the offences. Being drunk when committing an offence(s) is aggravating because it adds more fear to the victim when being manhandled by a drunkard or disorder person.
   
5. As a result of the offending, the victim property was stolen ($200 and a mobile phone).
   
6. Weapon (large bush knife) was used during the offending. The texture, size and shape of the weapon can easily terrify the victim. When held it against his neck by the drunken accused and accompanied by threatening words even add more fear.
   
7. For the traffic offences, the fact that he drove the vehicle with no valid motor vehicle license and also, with no driving license showed his ignorance and dishonesty to the government as the regulator of the licenses. He cheated the government ministry that is responsible for issuing of driving and motor vehicle license as a legal requirement before one can use or drive a motor vehicle on a public road.
   

For the purpose of his sentence, I take into account his guilty plea, a family man with 7 children and by entering guilty pleas is a reflection of his remorse and an indication of his willingness to accept whatever form of sentence the court will impose on him. I give him full credit for that but since he is not a first time offender, the Court will not consider or treat him as being a first time offender for purposes of his sentence.

All these offences occurred on the same date and from the set of facts. Therefore, it is trite law that concurrent sentence is the appropriate form of sentence to be followed herein. I am mindful that any sentence to be imposed for his case must not exceed 5 years as required under the Magistrates Court Act.

The accused had spent 2 years, 9 months and 23 days in custody before his matter is finalised. In my view, even though the significant part of the delay was attributed to his conduct with issues regarding changes of legal representative, I think there are some delays that this matter has taken to have it finalised even after Mr. Kwalai of the Public Solicitors Office had represented him. These delays were for reasons regarding disclosures and the need to settle on the agreed facts before hearing of his sentence. Hence, in fairness to the accused, he must be given the benefit of the delay.

Clearly, the facts of this case call for custodial sentences. Under no circumstances, they will be non-custodial. As I have already described, this is an ordeal and a life threatening and a totally inhumane conduct wielded against the victim. Can the Court give offenders a warning or non-custodial sentence for these kinds of inconsiderate, cruel and cowardice acts? Unfortunately, it will be a big NO. The Court must represent the voice of that victim by imposing appropriate deterrent sentences so that this kind of criminal behaviour that is sophisticated in nature is discouraged.

Having considered all the reasons and factors mentioned herein, I imposed the following sentences on the accused:

1. Kidnapping contrary to section (“C/S”) 251 of the Penal Code -3 years imprisonment.
   
2. Demanding with menaces C/S 295 of the Penal Code - 2 years imprisonment.
   
3. Assault causing actual bodily harm C/S 245 of Penal Code - 18months imprisonment.
   
4. Threatening, abusive or insulting behaviour – 1 month imprisonment.
   
5. Consuming liquor in a moving vehicle C/S 66(1) (a) of the Liquor Act – 6 months imprisonment.
   
6. Driving unlicensed motor vehicle C/S 7(1) of the Road Transport Act – 3 months imprisonment.
   
7. Driving without driving license C/S 20(1) of Road Transport Act – 3months imprisonment.
   
8. Larceny from person C/S 270 of Penal Code – 2 years imprisonment.
   

Court Orders

I order all sentences to run concurrent meaning 3 years is the head sentence for all offences. I reduced 3 months to reflect the delay occasioned. His final sentence is that the accused is sentenced to 2 years and 10 months. Having spent 2 years, 9 months and 23 days in custody and taking into account 8 more days to go for completion of his sentence imposed herein, I order that period in presentence detention is already a sufficient penalty for him and hence, he is to be released forthwith from custody at the rising of the court.

The warrant of arrest issued against his other co-defendants will be adjourned generally pending execution. If they are executed then the matter will be listed at any time during the official hours.

Cash bail of $1000 paid on 4/02/2014 is forfeited for breach of his bail conditions.

14 days right of appeal.

___________________________________________
Augustine Aulanga
Principal Magistrate