R v Kimisi [2019] SBMC 14; Criminal Case 16 of 2015 (21 March 2019)

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

Criminal Case No. 16 of 2015

REGINA

-V-

FLOYD KIMISI
&
ROY TAMTAM KIMISI

Date of Hearing: March 20^th, 2019
Date of Sentence: March 21^st, 2019

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

SENTENCE

Introduction:

1. Mr. Floyd Kimisi and Roy Tamtam Kimisi, both of you appeared before me this morning on charge of common assault^[1] each. You both entered guilty pleas and I record convictions on the guilty pleas as well. Therefore, I must make a just sentence for your case.they
   

Agreed summary of facts:

2. The facts revealed that on 14^th of January 2019, the Defendant; Roy Kimisi was at home with other boys when the victim returned from Gizo and started shouting abusive words at the Defendants premises aiming at the Defendants.
   
3. The Defendant came out of his house and confronted the victim about his behaviour. An argument ensued between them to which the Defendant punched the victim on the face and he fell to the ground.
   
4. The victim then got up and left. Shortly after leaving, the victim met the Defendant; Floyd Kimisi on the road. He then advanced and threw two punches towards the Defendant, he dodged the punches and landed a punch on the victim’s face. Thereafter, the victim continued his way to Lakalaka village.
   

Maximum Penalty:

5. The maximum penalty for the offence of Common Assault is one (1) year imprisonment. The maximum penalty mirrors the minds of those who make our laws to discourage those who continue to take the laws into their own hands by assaulting another individual.
   
6. It is also trite law in this Jurisdiction that the maximum penalty is reserved for the worst type of common assault offending. For instance, those who use weapon to execute an offence will expect higher penalty compared to assault with bare hand. A punch is serious to a slap. A slap to the face is serious than a punch to the arm or leg. Each cases a considered and dealt with on their own set of facts and merits.
   

Aggravating factors:

7. A closer look at the facts reveals the following to be the only aggravating factor in your case: -
   
   • 7.1. Utter disrespect to elder person – I noted that the victim in this case is your uncle, hence, someone that both of you should have respected and recourse to settle the issue in a more amicable and lawful way. Instead you both disrespected him by taking the law into your own hands and assaulted him.
     

Case Authorities:

8. In the case of Regina v Ilala,^[2] the Accused pleaded guilty to Common assault, contrary to section 244 of the Penal Code. The accused punched a person called Papa with his right hand closed fist in a shop called K - Boxing at Point Cruz area. No injury was sustained. The theft and the assault charges was carried out on innocent victims minding their own business here in Honiara. It was unprovoked, disrespectful and were done in total disregard to their property and safety. He received a 4 months’ imprisonment for his common assault charge.
   
9. In Regina v Ramosala,^[3] the accused pleaded guilty to Common assault, contrary to section 244 of the Penal Code. The accused after his mother refused to give him $15.00 approached her and kicked her as a result she fell to the ground. The court sentenced him to 5 months imprisonment.
   
10. In Regina v Taloikwai,^[4] the accused pleaded guilty to one count of common assault, contrary to section 244 of the Penal Code. The accused approached the victim and accused him as being the person who spit on him. The victim politely responded back that he did nothing to him. Despite his explanation, the accused hit the victim with his right hand closed fist and landed on his right side eye. His head got dizzy and fell back towards the iron-gate. The victim sustained minor injury as a result of the assault. He had 5 previous convictions. The Court sentenced him to 3 months’ imprisonment.
    
11. Having closely observed the past cases, it appears that the range is between, non-custodial sentence to imprisonment depending on the gravity of offence and level of culpability of the accused person.
    

Sentencing remarks:

12. As apparent, the victim in this case provoked the Defendant; Mr. Roy Kimisi and was the one who launched punches against Defendant; Floyd Kimisi when they met at the road. He has learned his lessons the hard way, for as I have always stated, do to others what you want them to do to you. He should now humbly manifest and digest all that have resulted from his utter stupidity and disrespect to his relatives who are the Defendants in this case.
    
13. Although I have stated that the victim has provoked and threw punches on them, this does not give any right or authority to reciprocate it with such act of assault or punch on the victim. No one is allowed to throw punches on the other unless he consents too, but as we all know, such atmosphere can only be lawfully acceptable in a boxing ring, MMA, UFC and WWE, definitely this case does not fall in either of those avenues, hence, illegal in its entirety.
    
14. Both of the Defendants are young or youth offenders, I agree that any sentiments shared will be engraved and stored in their memory for benefit of their next stages in life. There is more to life than submitting to your anger with violence. Violence brings nothing to our society, in fact, violence is the main hindrance to love, peace and harmony in our societies today. Learn to control and dictate your anger, even if it is so eviler harness it with calmness of good deeds.
    
15. Make good use of our law enforcement agency, the Royal Solomon Islands Police Force, that is by reporting the matter to them so they can charge the victim for his illegal actions. What he did can be categorised under the offence of “Using Abusive Words” and this court abhor such a behaviour in our small societies.
    
16. Nonetheless, both of you are here today before me because you failed to control your anger and as a result it led you to this Court to face the full force of law. A sentence I will pass must be one that resonate a theme to our societies in two folds; “Learn to control ones anger or temper and never recourse to violence”.
    

Starting point:

17. Having assessed the circumstance of the offending or how you both committed the offence and the apparent single out aggravating factor, it is in my view that an appropriate starting point in this case is 6 months imprisonment for each of you.
    

Mitigating factors:

18. I consider the following as mitigating factors for both of your cases: -
    
    • 18.1. Guilty plea & Remorseful – You both entered unequivocal guilty plea to the charge of common assault. I shall give full discount available in the case of R v Qoloni that is 25 % discount. Clearly it shows that you have own up to your wrongs and accept the consequences. You appeared very remorseful in court as well.
      
    • 18.2. First time offenders - both of you are a first-time offender which means that this is the first time for you to have the brush with the law. Clearly, there’s prospect of rehabilitation.
      
    • 18.3. Some element of provocation – I accept that there’s some element of provocation in both of your cases which triggered you to assault the victim. This stems out from the victim’s swearing and initial advances to punch both of you respectively on separate times.
      

Sentencing consideration:

19. I hereby reduce 2 months to consider your guilty pleas, 1 month to consider that you are a first-time offender and 1 month to consider that there’s provocation by the victim.
    
20. The resulting sentence is therefore, 2 months’ imprisonment.
    

Sentencing Order:

21. I hereby sentence you both as follows: -
    • 21.1. Mr. Floyd Kimisi to 2 months’ imprisonment.
    • 21.2. Mr. Roy Tamtam Kimisi to 2 months’ imprisonment.
      
22. I now move on to consider whether or not it is totally warranted that I should send both of you to prison. You both are youths or young persons and currently attending respective Universities; Solomon Islands National University (SINU) and University of South Pacific (USP), the court as the institution to punish offenders for their wrongs must not shy away from your pleas to continue with your tertiary education. You have both wheeled over to the final stages of education system in Solomon Islands. I do agree that this is a hard lesson for both of you and shall last as long as both of you shall live. I adopt this quote in your sentence; “Teach our youths and they become our future leaders”
    
23. With the above sentiments, I hereby suspend the 2 months imprisonment wholly for 1 year on condition that both of you must not commit any further offences. Breach of the condition will warrant reinstatement of the term suspended should you both found guilty of the newly instituted charge.
    
24. 14 days right of appeal applies.
    
25. Order accordingly.
    

THE COURT

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

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^[1] Contrary to section 244 of the Penal Code (Cap 26.)
^[2] [2017] SBMC 18; CMC-CRC 325 of 2015
^[3] [2016] SBMC 8

^[4] [2015] SBMC 1