Regina v Sila [2017] SBMC 39; Criminal Case 1032 of 2016 (29 August 2017)

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

CRIMINAL JURISDICTION

Criminal Case No. 1032 of 2016

REGINA
-v-
NELSON SILA

Date of Hearing: August 28, 2017
Date of Decision: August 29, 2017

Mr. L. Adifaka for the prosecution
Mr. D. Hou for the accused

SENTENCE

1. The accused, Nelson Sila, is the husband of the victim, Jessy Kuali. They have 4 children and were living together at Naeli village in Central Islands Province at the time he committed the offences.
   
2. The two offences occurred within a short period of time. The first one occurred on 6^th June 2016 while the second one on 9^th June 2016. He was charged for acts intended to cause grievous harm contrary to section 224(b) of the Penal Code for the first incident and common assault for the second incident. He pleaded not guilty to the first incident and the trial commenced. He, however, changed his plea and pleaded guilty during the course of his wife giving evidence.
   
3. For the second incident, he pleaded guilty to the charge before the trial had started.
   
4. The brief facts of the case showed that on the 6^th of June 2016 between 4:00pm and 5:00pm, the accused came home and was drunk. For reasons unknown, he started to behave disorderly and destroyed their matrimonial properties. Realising what he did was not acceptable, his wife/victim intervened and told him not to drink kwaso or smoke marijuana. He was infuriated by those words so he went straight to their kitchen hut outside of their dwelling house. There, he picked up a piece of copper triangle in shape and said to his wife “yu waitim copa ia.” Straightaway, he threw that copper towards his wife who was standing about 8-10meters close to him in front of a coconut tree and was carrying their 2 year old child. She quickly ducked her head and missed it of what could have been a fatal one. It landed on the trunk of the coconut tree behind her.
   
5. Following that incident, she took her children and escaped to her parents at another village.
   
6. Three days following the first incident or on the 9^th of June in the morning, he armed with a butcher knife and went to Haleta village to look for his wife who had escaped from him after the first incident and was believed to be living with her parents. His wife saw him searching for her in the village and tried to hide but later on, he caught up with her inside the village. He asked her if she could return back to him to their house at Naeli but she refused for fear of her safety following the previous incident. Her response did not go well with him so he grabbed her hair and dragged her out from a house to an open space in the village. At that location, he pushed her head towards the ground with his left hand while at the same time, he raised his right hand with the knife above her head intending to stab her. It was at that time that some villagers shouted at him that made him unable to stab her with the knife.
   
7. I start on the premise that any assault by a husband against his partner/wife is breach of the trust expected of another partner within a domestic or marital relationship. That trust in embedded in that domestic or marital union and continues until that relationship ceases to exist. Our laws have recognised the existence of that trust relationship in Solomon Islands by the enactment of the marital legislation^[1] and more recently, the Family Protection Act 2014. It is in the spirit of these legations that women in particular who are usually vulnerable and/or in a disadvantage position should be treated equally in our societies with respect and dignity. They should not be seen or treated by men as mere objects or properties to satisfy their grudges/anger, but should be seen and valued as previous souls equally important to the menfolk.
   
8. This particular offending especially domestic violence appears to become escalate every year instead of decreasing despite the enactment of the Family Protection Act^[2]. Therefore, the Court must place strong emphasis on the need to protect women in any domestic violence situation otherwise, they will continue to suffer at the hands of the persons who promise to love, care and protect them. That need becomes more compelling when domestic violence is now prevalent in Solomon Islands and has occupied an extreme position in the spectrum of violence, exploitation and oppression against women.
   
9. In this case, the accused is one of those who joined the queue of perpetrators in committing domestic violence.
   
10. To determine the appropriate punishment for the charges faced by the accused, normally the Court will ask these questions:
    
    • (i) What are the relevant facts or the particular circumstances that gave rise to the commission of the offence(s)?
      
    • (ii) What is the nature of the offence(s) which the accused was charge with and relevant sentencing trend been handed down in our jurisdiction?
      
    • (iii) What are the aggravating and mitigating factors for the case? And
      
    • (iv) What should be the appropriate sentence – custodial or non-custodial?
      
11. I now turn to address these pertinent questions.
    

What are the relevant facts or the particular circumstances that gave rise to the commission of the offence(s)?

12. The facts surrounding the commission of the offences had already been stated earlier so I don’t need to repeat them again.
    

What is the nature of the offence(s) which the accused was charge with and relevant sentencing trend been handed down in our jurisdiction?

13. The charge of acts intended to cause grievous harm is a felony or a serious offence. It carries a maximum penalty of life time imprisonment. It has the same maximum penalty for murder or rape for example. The sentences handed by the High Court and the Magistrates Court for this offence normally attract custodial sentence. For example, in the case of R v Sutafanabo,^[3] the defendants were sentenced to 3 years imprisonment following a trial for throwing two spears and cutting the victim with the knife in which the victim did not suffer any injury from those life threatening acts. Another example is the case of R v Mark Liko^[4] where the defendant was sentenced to 3 years imprisonment following his guilty plea. In that case, the defendant went to look for the victim and repetitively attacked him with a large bush knife in his garden. It was sustained attack. However, the victim did not suffer any injury because he used a metal pipe to defend him before he escaped from the defendant.
    
14. It is well recognised that the more serious the nature of the offending, the lengthier the sentence. This also operates the other way round.
    
15. The charge of common assault is a misdemeanour with a maximum penalty of 1 year imprisonment. The sentences normally imposed for a guilty plea for this offence are fine, good behaviour bond, suspended sentence if no weapon was used and a short custodial sentence.
    

What are the aggravating and mitigating factors for the case?

16. In my view, I consider the following as the aggravating factors for this case:
    
    • (a) He was drunk and behaved unruly before he shot his wife with the copper;
      
    • (b) He used the copper to shoot his wife. The texture of this object is capable of causing injury or even life threatening injury and therefore, in my view, falls within the definition of a weapon^[5];
      
    • (c) He threw the copper and targeted her head area, a vulnerable part of her body;
      
    • (d) He shot his wife when she was carrying their small 2 year old child and was in a vulnerable position. His action has little, if not, no regard at all to her safety even to the child;
      
    • (e) On the second occasion, he had dragged her from the house to the open space in the village before he assaulted her. It must have been an embarrassing situation for the victim to be treated in that manner in front of her own people;
      
    • (f) The manner in which he assaulted her was senseless and absolutely terrifying. He pushed and held her head down to the ground and raised the knife above her head in order to stab her. It was fortunate that he was interrupted by the villagers, otherwise, what followed would be horrific and unimaginable;
      
    • (g) He carried out the abusive behaviour on two occasions against the same victim; and
      
    • (h) Breach of trust. The accused was living with her at the time of the incidents. Although marital disputes are common in Solomon Islands, but the assault as exhibited by the accused in this case is senseless and unwarranted. Instead of treating the victim with respect, he treated her as if she was his property. He needs to change his attitude; otherwise he will find himself visiting the prison more often.
      

The mitigating factors in the accused favour are:

(a) The accused pleaded guilty to the charges thereby saving the court’s time and resources;

(b) He was very remorseful as reflected by his guilty pleas;

(c) He has paid $100 as compensation to his wife following the incidents;

(d) He did not inflict any injury to the victim on those two incidents;

(e) He is a first time offender with no prior convictions; and

(f) He is a family man and his children depended on him for financial support.

What should be the appropriate sentence – custodial or non-custodial?

17. For the felony charge, definitely a custodial sentence is the appropriate form of penalty. The circumstance of this case show that he was in a mood of anger when he shot his wife with the piece of copper. This was preceded by the utterance of the words “yu waitim copa ya”. These were unpleasant words and one that when uttered in the course of argument reflected he knew and meant what he was intending to do to her. Despite it was not premeditated and only a one-of incident, the manner in which it was carried out was serious.
    
18. I placed his culpability to be at the quarter of the level of the seriousness of this offence. His level of culpability should be differentiated and in my view, less serious to the facts in the case of Sutafanabo and Loki.
    
19. For the common assault charge, it requires a custodial sentence. The facts surrounding the commission of the offence and the manner in which the victim was assaulted as described in the facts warrant this form of penalty.
    
20. I am urged to consider this offending occurred in a matrimonial relationship. The accused and his wife had already been living together with Stephen Kuali his father in-law at the time of his apprehension. This shows their relationship had already been normalised following the incidents. Also, it is expected his children will one way or the other, will be affected as a result of any lengthy incarceration.
    
21. I have considered those submissions and whilst I sympathised with the accused, he as a married man with four children should consider the likely consequence of his actions before doing things. He committed the offences against his wife not on one, but on two occasions involving the use of dangerous weapons. A reasonable married man who is concerned about his family and does not want to end up in Court cannot go to this extent. This is an act of stupidity at its peak and one that cannot be easily tolerated by the Court.
    
22. Having settled on these reasons and taking all the factors narrated herein and balancing them with the mitigating factors, I sentenced him as follows:
    
    • (a) Acts intended to cause grievous harm contrary to section 224(b) of the Penal Code – 2 years imprisonment.
      
    • (b) Common assault contrary to section 244 of the Penal Code – 4 months imprisonment.
      
23. Both sentence will run concurrent since it involves the same victim and the facts/circumstances leading to the second incident are more or less an extension of the facts from the first incident.
    
24. Pre-sentence detention period is to be taken into account.
    
25. TO THE ACCUSED – you must reconsider how you treat your wife and learn to control your anger in a more manageable way if you want to stop seeing the Court in future. This case should be a lesson learnt or a turning point for you since the leniency shown herein for your sentence will not be expected or even repeated if you continue to cross the red line or in other words, reoffend against your wife in future.
    

Orders of the Court

(1) The accused, Nelson Sila, is sentenced to 2 years imprisonment.

(2) Times spent in custody is to be taken into account.

...........................................................................
THE COURT
(Augustine Aulanga – Principal Magistrate)

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^[1] For example, the Affiliation, Separation and Maintenance Act
^[2] 2014
^[3] [2012] SBHC 48; HCSI-CRC 247 of 2010, 467 of 2010 & 171 of 2011
^[4] EOIDMC-CRC NO: 53/2014 delivered at Lata on August 24, 2016
^[5] Section 84 (6) of the Penal Code