Regina v Foster [2017] SBMC 58; Criminal Case 148 of 2017 (27 November 2017)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 148 of 2017 and 1023 of 2017

REGINA

V

ROBERT FOSTER

Date of sentencing hearing: September 19 and November 17, 2017
Date of sentence: November 27, 2017

Mr. E. Konle for the Prosecution
Ms. J. Namo for the accused

SENTENCE

1. Robert Foster, you admitted committing the following offences against your wife, Ruth Foster:
   
   • (a) One count of intimidation, contrary to section 261(1) of the Penal Code; and
   • (b) Two counts of domestic violence, contrary to section 4 (1) (a) and read together with section 58 of the Family Protection Act.
     
2. These offences were committed on three separate occasions arose mainly from domestic disputes.
   
3. The brief facts of the incidences are these. On the 6^th of November 2016, you had an argument with your wife inside your car. During the course of the argument, you stopped the car, picked up a knife black handled in color and threatened to cut her with and at the same time, you swore at her saying “u kaikai shit.” She was afraid of your aggressive behaviour and because you were drunk, she escaped.
   
4. On the 7^th of February 2017, you again got drunk and asked her to go with you to the Supreme Club. She refused because she was doing her marketing but you kept on asking and demanding her for money. At last, she gave you $200 and upon hearing that she would not give you any more money, you then grabbed a piece of wood and shot her with and it landed on her right hand. Her right hand was swollen and she suffered pain as a result. You again picked up another stick, shot her, but was missed.
   
5. The third incident occurred in the early hours about 5:00hrs on the 19^th of September 2017. That was when your wife returned from the wharf after dropping off her relatives. An argument started between you and her and as a result, you held a cooler and shot her, but missed. You walked straight to her, wasted no time and punched, kicked and squeezed her neck with both of your hands. She had to struggle before she freed herself from you and escaped.
   
6. I consider the following as the aggravating factors including some that are provided under section 62 of the Family Protection Act (FPA),:
   
   • (a) The victim was threaten inside a car. This is aggravating because she is in a confined and in-secured place and often times, it would be difficult for her to get assistance from the public.
     
   • (b) The incident on the 19^th of September 2017 occurred in the night as revealed in the facts.
     
   • (c) On the three occasions, you used a knife, sticks and a cooler as objects to intimidate and assault your wife. In my view, they are capable of producing injury when used by a mature person like you.
     
   • (d) You were drunk on the first and second incidents and thus, is an aggravating factor.
     
   • (e) The conduct constituting the offending is repeated against the same victim.
     
   • (f) The victim sustained bruises and pains to her neck, right arm and knees as a result of the last incident.
     
7. I start by saying that you are the head of your family. Being a father of the family requires you to act maturely and responsibly towards your wife. Your wife looks to you for support, care and protection. You need to grow up in your thinking and learn to adjust your behaviours when it comes to conflict resolution. Although your wife might be provocative or acted inappropriately in your marriage relationship, you have absolutely no right to use violence against her. Her right afforded by the law for her protection from ill treatment or other forms of human degradation is exactly the same as yours. Therefore, you should not treat her as a mere object to satisfy your own grudges or anger at your own whim. You must learn to resolve your anger with your wife in a nonviolent or appropriate way otherwise, you will risk yourself of being charged, prosecuted and sent to prison in the future.
   
8. I have been ardently urged to consider that you have 5 children, 4 of whom are currently attending school and that you have now lost your job after you were placed in custody. You are the one who shouldered most of the family responsibilities. Your children are now affected as a result of your incarceration and as we speak, they are still longing for your return. This is very unfortunate. The emotional and psychological pain that you gone through whilst in custody in light of the hardship your children have faced as a result of your incarceration is one that is easy to say but hard to endure if one is to put him/herself in your shoes. You should blame yourself for this. I say this because you simply don’t think first before you assaulted your wife as nowadays with the enactment of the Family Protection Act, those actions you’ve done against your wife can easily make you end up in jail.
   
9. I have the opportunity to read the letter written by your father in law. He independently confirmed that you had already reconciled with them and that your relationship with them is now in good terms. He begged the Court to release you since he and his wife found it very hard to look after your children in your absence. The letter is self-explanatory of the difficulties and the hardships they encountered, and the only solution proffered therein is for you to quickly return to your children.
   
10. For this case, I will sentence you as a first time offender. Also, the sentence must reflect your culpability in that I mean you repeatedly committed the offence against the same victim who is none other but your own wife. I understand that domestic violence has out blown our country at an unprecedented rate and that there is a high public expectation that perpetrators of domestic violence must be severely punished. Despite this, the Court in its role in delivering justice must do what is called a ‘balancing exercise’ when it comes to sentencing. It must not wear the lens of the public viewers who are too easy to put blame on the authority and often times inappropriately or one-sidedly demand what should be the sentence in domestic violence cases without having the benefit of the facts or evidence. The Court must maintain its independence and impartiality and must decide the case purely on the facts before it.
    
11. I understand that you are very remorseful to the extent that you even very emotional and shed tears in your appearances before me during the hearing of your sentencing submissions.
    
12. You are a first time offender with no prior convictions. Your case should be differentiated from a person who is a recidivist or a habitual offender who never learn from past offending. I also considered your guilty pleas that inevitably will attract a reduced sentence compared to a contested matter. Further, I am conscious that I won’t condone domestic violence by imposing sentences that are too lenient in light of the facts that if properly considered, the appropriate sentences should be otherwise.
    
13. For your case, I feel that in light of your genuine reconciliation, the demands from the victim’s family and your children for your early release and being a first time offender, they indeed call for a sentence that accommodates the need for deterrence and at the same time, must promote your early reunion with your family. I feel that it will be too harsh for you if I focus only on deterrence for your case. I think that restorative justice is more applicable and important for your case. At the end of the day, the fact will always remain that you are a family man who will return to his wife and family with a reformed life and attitude and one that will not entertain again domestic violence.
    
14. The circumstances surrounding the commission of the offences for your case are quite serious in the strata of domestic violence cases and thus, they call for a custodial sentence. The use of the knife, the throwing of the woods or sticks and the cooler against the victim, the punching and kicking of your defenceless wife and the humiliation and pain that your wife had suffered as a result of your actions justify that conclusion. The sentences in my view that is appropriate for your case are as follows:
    
    • (a) Intimidation contrary to section 261(1) of the Penal Code – 5 months imprisonment.
      
    • (b) Domestic violence contrary to section 4 (1) (a) and read together with section 58 of the Family Protection Act (7^th February 2017 incident) – 5 months imprisonment.
      
    • (c) Domestic violence contrary to section 4 (1) (a) and read together with section 58 of the Family Protection Act (19^th September 2017 incident) – 6 months imprisonment. I consider this incident as aggravating because you never learnt from your past actions and continue to commit it again against the same victim.
      
15. I order that all sentences will be concurrent since they all committed against the victim more or less from domestic violence from their own matrimonial relationship.
    
16. The final sentence is 6 months imprisonment.
    
17. Right of appeal applies to any aggrieved party.
    
18. Order accordingly.
    

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THE COURT
Augustine Aulanga – Principal Magistrate