R v Korato [2019] SBMC 11; Criminal Case 4 of 2019 (20 February 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case No. 4 of 2019

REGINA

-V-

TETOA KORATO

Date of Hearing: February 15^th, 2019
Date of Sentence: February 20^th, 2019

Mr. Ronnie. Pisei for the prosecution
Mr. Clifton. M. Ruele for the defendant

SENTENCE

Introduction:

1. Mr. Tetoa Korato, you appear before me today on a charge of Unlawful Wounding contrary to section 229 of the Penal Code. You pleaded guilty and accordingly I enter conviction on you own guilty plea. Therefore, I must make an appropriate sentence for your case.
   

Agreed summary of facts:

2. The agreed facts show that on the 1^st of January 2019, between 10:00am and 11:00am, the victim and yourself were all drunk as both of you were celebrating the New Year’s Day. The victim then stood up and challenged you for a fair fight. You told him that you could not fight him because you were too drunk, but the victim insisted and approached you with his right hand closed fist, he punched you.
   
3. As a result of the punch, you fell onto a kitchen veranda. While on the floor you saw a kitchen knife in the kitchen. You then got hold of the kitchen knife, turned around and stabbed the victim onto his back side. Thus, the victim sustained injury to his back side and was transported to Gizo Hospital. The medical report showed the wound was 3 cm in length and 1 cm deep.
   

Max Penalty:

4. The maximum penalty for unlawful wounding is 5 years’ imprisonment. This shows or indicated the intention of the legislatures or law making body to abhor or discourage such offending. Of course, it is trite law that the maximum penalty is reserved for the worse type of offending.
   
5. The sentencing tariff ranges from 12 months suspended sentence to 4 ½ years’ imprisonment. Depending on the circumstance of the offending and level of culpability involved.

Aggravating factors:

6. Having perused the brief facts, these are of course the apparent aggravating factors in you case:
   
   • 6.1. Use of weapon – You used a bush knife to execute the offence, this totally aggravates the offending. A bush knife when used against a human being will inflict serious injury which might be life threatening as well.
     
   • 6.2. Intoxication during the commission of the offence – It is well settled that offences emanates out of drunkenness are considered aggravating^[1]. In R –v- Oma, court stated that; being under the influence of alcohol is of course an aggravating factor. Offenders who take alcohol to carry out the offending must accept the consequences and expect no leniency from the court.^[2]

Case authorities:

7. I appreciate the efforts rendered by counsel Ruele to provide the number of case authorities to assist this court to arrive at a just and fair conclusion and or sentence.
   
8. In case of R v Tome^[3] This is a guilty plea matter. The facts stated that the victim swore and kicked the Defendant, the Defendant retaliated and stabbed him with a knife in return. The injury inflicted was not serious, the wound described as shallow and the victim recovered fully from it. The Court imposed a 24 months’ imprisonment. Defendant was released at the rising of the Court having spent 17 months in remand.
   
9. In case of Carlton Tagini v R^[4], this an appeal against the 2 years’ sentence imposed by the Magistrates Court on a guilty plea. The facts stated that the victim was struck on the forehead with a knife causing him to fall down while the Defendant escaped. He sustained injuries (lacerations) to his forehead and was taken to the hospital and admitted. He was hospitalized for a total of six days. Upon review the Chief Justice, His Lordship Palmer quashed the 2 years’ sentence and imposed substitute sentence of 18 months’ imprisonment.
   
10. In the case of R v Nguyen Van Thang^[5] where 4 ½ years was imposed. A knife was used. Medical report showed the seriousness of the wound. The wound was located in the posterior triangle near the base of the neck. The Doctor described the wound as life threatening with major blood vessel of the neck involved causing massive blood loss.
    
11. In case of Regina -v- Asuana^[6], the accused was convicted and sentenced to 12 months’ imprisonment. It was a nasty and serious attack on a relative. The accused stabbed the victim nine times, five of which were in the victim’s back. By powers of review vested on the higher court, His Lordship Ward CJ (as he then was), quashed the sentence imposed by the Magistrate and imposed two and half years’ imprisonment.
    
12. In R -v- Gere^[7], the accused pleaded guilty to unlawful wounding by using a knife to stab the victim on the chest. The victim spent eight days in hospital before discharge. The court imposed 18 months’ imprisonment.
    
13. In R -v- Funifaka^[8], three accused were charged with attempt murder and unlawful wounding on several victims. The victims suffered serious injuries by the accused knife and chisel. The court imposed 2 years’ imprisonment for unlawful wounding.
    
14. In R -v- Sitana^[9], the court sentenced the accused to two years’ imprisonment for slashing a person on the face and neck with a bush knife, resulting in the victim being hospitalized.
    
15. In Regina v Bala [2018] SBMC 138, the accused was also attacked by the victim and in retaliation he struck the victim with a bush knife causing serious injuries. In that case, this Court imposed an 18 months imprisonment having due consideration to mitigating and aggravating factors.
    
16. Having outlined the above cases which reveals the ranges of tariffs applied in Courts within this Jurisdiction, it is in my view that this case when compared to the above cited cases falls in between the lower-range and mid-range of the offence of unlawful wounding. This case is much similar to Bala, however, the circumstance of offending in Bala is quite serious in which the accused inflicted several injuries on the victim’s body with the use of a 19 inch-long bush knife and the core aggravating factor as well was the permanent loss of function for the right arm.
    
17. The agreed facts in this case reveals that you used a kitchen knife and the medical report as tendered in Court stated; that the wound was 3 cm in length and 1 cm deep. No clinical findings of internal bleeding and it seems like superficial wound. The patient looked well and no sign of distress or discomfort to pain. He is comfortable and stable^[10].
    

Sentencing remarks:

18. The victim was the instigator who firstly open challenged you for a fair fight, and when you appeared reluctant he later proceeded and punched you with his right hand closed fist, as a result you landed on the floor. These were the actions which triggered you to retaliate and inflict injury on the victim.
    
19. I find that your reaction that day is one of spontaneous act, you were not armed with the kitchen knife, and it was when you fell on the veranda’s floor that you saw the knife. You were in total drunkenness and proceeded to use the weapon to rescue yourself from further assault and danger to your own life.
    
20. Having averred the above, this should not give right or any leeway for you to commit this hideous criminal act. The using of a kitchen knife to inflict injuries on the victim in my view is absolutely wrong and or wide off the mark. You must now realised how your simple wrong becomes a serious tamper to the law. I agree that any starting point must below the cases of; Julian Bala^[11].
    

Starting point:

21. Having considered the abovementioned aggravating factors including the circumstance of the offending and due consideration to the tariffs provided in the cases cited herein, I see it appropriate that the starting point is 2 years’ imprisonment.
    

Mitigating factors:

22. I take due account to the following factors as mitigation in your case: -
    
    • 22.1. Guilty plea & Remorse – You entered some unequivocal guilty pleas to the charge against you. I shall give full discount available in the case of R v Qoloni that is 30 % discount. Clearly it shows that you have own up to your wrongs and accept the consequences. Your guilty pleas show remorse and saves courts time and resource to run a full trial.
      
    • 22.2. You are a first-time offender or no previous conviction – this is the first time for you to have the brush with the law. Clearly, there’s prospect of rehabilitation for yourself, that is, to learn from this case and turn away from such actions in the future.
      
    • 22.3. Provocation – There is a significant provocation by the victim which triggers you to retaliate on what you did in this case.
      

Sentencing consideration:

23. I hereby reduce 12 months to consider your guilty plea, 2 months to consider that you are a first-time offender and 2 months for the fact that significant provocation is apparent in this case.
    
24. The resulting sentence is therefore, 8 months’ imprisonment.
    

Sentencing Order:

25. I hereby sentence you Mr. Tetoa Korato to 8 months’ imprisonment.
    
26. Time spent in custody or any pre-detention period must be deducted from this head sentence.
    
27. 14 days right of appeal applies.
    
28. Order accordingly.
    

THE COURT

...........................................................................
MR. LEONARD. B. CHITE
Principal Magistrate

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^[1] [2018] SBMC 123
^[2] [1999] SBHC 124
^[3] [2017] SBHC 102; HCSI-CRC 504 of 2016 (28 November 2017)
^[4] [2016] SBHC 221; HCSI-CRC 258 of 2015 (18 July 2016)
^[5] [2012] SBHC 133
^[6] [1990] SBHC 106
^[7] [1981] SBHC 6
^[8] [1997] SBHC 31
^[9] [2009] SBHC 57
^[10] Medical report dated 3^rd of January 2019 by Doctor Angeline Naqu
^[11] At page 3, paragraph 12