Regina v Maxwell [2017] SBMC 5; Criminal Case 274 of 2016 (7 March 2017)

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

Criminal Case No. 274 of 2016

REGINA

-V-

ELISON JUNIOR MAXWELL

Date of Hearing: March 1, 2017
Date of Decision: March 7, 2017

Mr. Adifaka for prosecution
Mr. Holara for defendant

SENTENCE

The charges

1. Elision Junior Maxwell (“accused”) pleaded guilty to the following charges:
   
   • one count of counselling other person to commit unlawful wounding on the victim, Peter Asa (“victim”), contrary to section 229 of the Penal Code as read together with section 21 (d) of the Penal Code; and
     
   • one count of escaping whilst under the lawful custody of Henderson Police Officers, contrary to section 199 of the Police Act 2013.
     
2. He committed these offences at Henderson area, however, on separate occasions. The unlawful wounding offending occurred on 31^st of March 2016 whilst the escape from lawful custody occurred on 11^th of April 2016.
   

Summary of facts

3. The agreed summary of facts revealed that on 31^st of March 2016 around 8:00pm, the victim arrived at the Henderson vegetable market after having some beers with his friends.
   
4. From the market, he walked to the store and bought a cigarette. There, the accused approached him and asked him for $10.00 to buy kwaso. He did not want to give him the money but instead asked him to find a girl in exchange if he was to give money for the kwaso. Upon hearing this, the accused walked back to a group of boys who were sitting on the logs close to an area normally used for playing cards.
   
5. Afterwards, the accused returned to the victim with another female named Margaret and from that store, they all walked down the road to find kwaso.
   
6. When they almost reached the house where kwaso was sold, the victim gave $20.00 to the accused to buy two bottles of kwaso whilst he and Margret waited for him. The accused went and returned with the kwaso and they returned back heading towards the market direction.
   
7. On their way, the accused asked where they would sit and drink. The victim replied and preferred the market area. The accused disagreed with his suggestion and insisted that they should just find any spot along the road. The accused at that point in time then asked him for some more money to buy soft drink to mix it with the kwaso. The victim gave him another $20.00 and was advised by the accused to wait with Margaret at that spot whilst he went to the shop.
   
8. As soon as he left them, an unknown person approached the victim and torched his eyes with a mobile phone. For reasons unknown, he instantly felt a rope thrown around his neck. Suddenly, he was hit in the face and kicked in the back several times by a group of unknown persons.
   
9. The victim was unable to defend him as he was concentrating on trying to remove the rope that almost choke his throat. It was unclear whether or not Margaret was providing any assistance to the victim or vice versa during the course of the attack but, it appears quite clearly from the agreed facts that the attack occurred silently and during a short span of time.
   
10. The victim tried to retaliate but fell to the ground after he was struck in the head with an unidentified object. Those unknown persons also removed his $300.00, a green bilum basket and a silver grand-haus mobile phone.
    
11. He lied down on the ground helplessly after he was assaulted. His face, mouth and ear were observed to bleed heavily. His face and eyes were immediately swollen. Later he got up and staggered back to his house.

12. Due to the severity of the assault, he was taken to the National Referral Hospital for medical treatment the following day. Dr. Patrick Toito’ona who examined him revealed he suffered scalp laceration to his cockpit region; soft tissue swelling to his face with both eyes almost closed and swelling to his nose as a result of bleeding. He was later discharged after more than 10 hours admission in the Emergency Department.
    
13. The accused was arrested and admitted that he planned with those unknown persons to attack the victim that night. The extent of his planning with the group of boys was unclear, save to say that he agreed in taking part in the formation of the advice or plan to assault the victim that night.
    
14. When he was still under the lawful custody of Henderson Police Officers, he somehow escaped but later rearrested. That occurred on the 11^th of April 2016 at the Henderson Police Station.
    

Aggravating factors

15. I consider the following to be the aggravating factors in this case:
    
    • ◊ First, the offending occurred as a result of planning. The accused admitted that he planned with the unknown persons to attack the victim that night. The manner and the eventual carrying out of the assault on the victim is the product of the formation of the evil thought or advice that the accused shared and instigated with the attackers. The use of torchlight devise, the rope and the object during the assault clearly reflected the extent of the planning that involved and the manner it was anticipated to be carried out on the victim.
      
    • ◊ Second, the accused conduct was very deceitful to the victim moments before he was assaulted by the group of boys. He brought a female and enticed the victim to buy kwaso in exchange. He refused to allow the victim to drink at the market area but insisted they would drink at a dark and isolated spot along the road. He betrayed the victim by abandoning him at a spot closer or convenient to the boys so that he would be easily assaulted.
      
    • ◊ Third, the manner in which he was assaulted following the accused plan or advice was extremely cruel and clearly inhumane. He was torched in the eyes in order to distract his observation before a rope was thrown around his neck. He was viciously and repeatedly hit in the face and kick at the back by the group of boys although he was constrained by the rope and struggled helplessly to remove it from his neck. Furthermore, despite he was drunk and unassisted, they continued to severely assault him to the extent of striking his head with an unidentified object which caused him to fall down.
      
    • ◊ Fourth, he was not only assaulted but even robbed him of his money, basket and a mobile phone. These are his valuable properties. He suffered twice from this incident. One from him in person and the other, the loss to his properties. This is an act of gratuitous cruelty shown with minimal, if not, no sympathy at all to the defenceless victim.
      
    • ◊ Fifth, the victim was attacked in the night and at an isolated location by a group of likeminded offenders. They preyed on the vulnerability of the victim when he was alone and take advantage of the night and the location to assault him. Having attacked during the night placed him in a vulnerable position, rendering him unable to defend him in person and also, his properties.
      
    • ◊ Sixth, the victim suffered injuries to his bodies as a result of the extreme cruel assault carried out on him. He suffered laceration to the occiput region of his head which is a potentially life threatening part of a human body. His face was swollen with both eyes almost closed. His nose was also swollen from the bleeding he endured following the attack. These injuries were the direct result of the attack founded on the plan initiated by the accused and the group of boys.
      
    • ◊ Finally, in relation to the escape from lawful custody, he has shown total disrespect to the Royal Solomon Islands Police Force (RSIPF) when he intentionally escaped from the Henderson Police Officers. He deliberately wanted to avoid the due course of interrogating and bringing him to court following his arrest. He had caused the RSIP to remobilise its manpower and resources to have him rearrested.
      

Mitigating factors

16. From the submission put forward by learned counsel for the accused, I observed that there are 4 main considerations that would serve as his mitigating factors. These are:

◊ Firstly, his early guilty pleas to all the charges undoubtedly saved time for the court.

◊ Secondly, he was very remorseful for his actions. His guilty pleas reflected he was sorry for the wrongs he committed. I have observed his demeanour in court on several occasions and his behaviour is reflective of a person who fully regretted what he had done and will take steps to see it will not be repeated in future. Ordinarily people learn from their mistake and the accused is no exception.

◊ Thirdly, the accused is a first time offender and should be given the benefit of not treating him as a recidivist. As a conventional practice, those who commit an offence for the first time in their lives should not be severely punished as repeated offenders. The accused should be given this benefit for this case.

◊ Finally, the accused is 20 years of age and is a young person. It is trite law that youthfulness in any criminal case is a strong mitigating factor which the court must not overlooked. I am urged to consider that he was a student at Bishop Epalle at the time he committed the offence and therefore, whatever sentence he receives should not hinder his chance of obtaining further education.

Sentencing of offenders under section 21 of the Penal Code

17. For purposes of his sentence, section 21 (d) of the Penal Code statutorily laid down the position in Solomon Islands when sentencing an offender who procures or counsels the commission of the offence.
    
18. Section 21 (d) states:
    

“When an offence is committed, each of the following is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(a).....

[....]

(d) any person who counsels or procures any other person to commit the offence;

In the last – mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.”

19. Our legislation does not differentiate the principal offender from the secondary offender following conviction, rather, it provides that they carry the same consequences for their actions following commission of an offence.
    
20. However, when sentencing a co-offender under section 21 of the Penal Code, the court must establish a proper relationship in sentence for co-offenders. This is to ensure the sentence imposed on the co-offender corresponds and reflects his participation and culpability in the commission of the offence as compared to the co-offender. Any imposition of a sentence that differs from another co-offender must be justified according to the participation and culpability of the offender. This is to avoid a co-accused being sentenced out of proportion and any grievance that may arise as a result.
    
21. A number of cases were put before as indication of sentence by both the prosecution and defence.
    
22. In Regina v Paul Mona,^[1] Faukona J, (at para 19) stated that the range of sentences for unlawful wounding is from 12 months suspension sentence to 4 ½ years’ imprisonment. In that case, the court referred to the case of R v Cawa and Others,^[2] R v Gere,^[3] R v Faifaka,^[4] and R v Nguyen Van Thang^[5] to show that range of sentence. Those cases involve the sentence for principal offenders and not for offenders under section 21 of the Penal Code.
    
23. Whilst the role of sentencing lies within the discretion of the court, it is conventional that each case has to be decided on each on set of facts.
    
24. In light of the absence of any case authority that deals with sentencing an offender for unlawful wounding under section 21 (d) of the Penal Code, I’ve decided to approach this case solely on its own set of facts.
    
25. For the present case, the victim was subjected to an extreme form of cruel assault and suffered injuries as a result of the accused wittingly planned with others to assault him. The accused knew that it was an evil plan and one that may potentially render the victim to suffer serious harm if he is assaulted by the group of boys. He did not withdraw his involvement but continued to do so despite that obvious consequence. Even his conduct before the assault when carefully scrutinised also showed he was an active player in ensuring the victim was placed at an isolated location readily available for the group of boys to attack him that night.
    
26. This form of assault is now common in neighbourhoods in and around of Honiara. Innocent individuals have become victims of this antisocial behaviour. They have suffered unnecessary harms and injuries at the hands of few individuals who have no-care attitudes, no respect to the public and acted as if they were above the rule of law. These type of antisocial behaviour is like a disease to the restoration of law and order in our country. If timing is right, I think this is high time this court must resonate its message loud and clear that such behaviour is unacceptable and cannot be easily tolerated. The court when sentencing an offender should not overlooked the wounds, trauma and anxiety the victim suffered as a result of the offending.
    
27. Against this background, when all these factors are considered and taken into account, it is my view, that the society and courts’ stand against such type of violent offending whether directly or indirectly demands custodial sentence as the appropriate form of sentence.
    
28. I also take into account that his future education may one way or the other will be affected or delayed by this period of incarceration. However, he as a secondary student should have thought about the likely consequences of his action before committing the offence. To refrain from committing this offence at the first place is not hard and complicated. This is just common sense and more so, for him as a student. He instead disregarded the obvious and did the opposite.
    
29. The sentence that I will pass must distinguish him on the basis of being a counsellor to the offending. It must not only reflect his culpability, personal circumstances and mitigating factors but must also protect the public by deterring those who are minded to indulge in the commission of these offences.
    

SENTENCING ORDERS OF THE COURT

30. I sentenced Elision Maxwell Junior as follows:
    
    • 18 months imprisonment for the offence of counselling other person to commit unlawful wounding, contrary to section 229 of the Penal Code as read together with section 21 (d) of the Penal Code; and
      
    • 6 months imprisonment for the offence of escaping whilst under the lawful custody of Henderson Police Officers, contrary to section 199 of the Police Act 2013.
      
31. I order that both sentences are to be run concurrently since they arose or connected from the same incident. I further order that period spent in custody is to be deducted from this sentence.
    
32. Either party has a right to appeal this sentence within 14 days as of today.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] [2014] SBHC 37
^[2] [2012] SBHC 134; HCSI-CRC 405 of 2008
^[3] [2013] SBHC 19; HCSI-CRC 83 of 2008
^[4] [[1997] SBHC 31; HCSI-CRC 33 of 1996
^[5] SICOA No. 28 of 2013