R v Lianga [2019] SBMC 15; Criminal Case 185 of 2018 (22 March 2019)

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

Criminal Case No. 185 of 2018

REGINA

-V-

SOLOMON KANA LIANGA

Date of Hearing: March 21^st, 2019
Date of Sentence: March 22^nd, 2019

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

SENTENCE

Introduction:

1. Mr. Solomon Lianga, you appear before me today on a charge of Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code (Cap. 26). You pleaded guilty and accordingly I enter conviction or criminal record on you own guilty plea. Therefore, I must make an appropriate sentence for your case.
   

Agreed facts:

2. The facts you agreed to tender shows that on the 17^th September, 2018, the victim who is your 3 years old son during the date of offending, got up out of bed that early that morning and went out to the veranda of your family’s house at Obobulu village.
   
3. You were nursing plants on the veranda of the house which the victim innocuously uprooted when he came out on the veranda. The victim’s mother came out and saw the uprooted Marijuana plants and informed you.
   
4. Upon hearing this, you got angry and went outside to victim and whipped him with your hand. You then picked up the uprooted marijuana plants and rage filled you. You went back to the victim who was then still crying outside and kicked him on the left thigh. The victim shrieked with pain and fell to the ground.
   
5. The victim was later taken to the Hospital where he was examined and found to have sustained a fractured thighbone from the Defendant’s kick. Upon a formal complaint, you were arrested and charged.
   
6. You were remanded in custody since 21^st of September 2018.
   

Maximum Penalty:

7. The maximum penalty for offence of Assault Causing Actual Bodily Harm is five (5) years imprisonment. The maximum penalty echoes the minds of those responsible lawmakers to abhor or detest offence of Assault Causing Actual Bodily Harm in our slowly developing society.
   
8. It is trite law that the maximum penalty is reserved for the worst type of offending and that each case is dealt with on its own unique set of facts and merits.
   

Aggravating factors:

9. Having perused the facts, I find the following to be the aggravating factors in your case: -
   
   • 9.1. Breach of trust – The victim in this case is your own 3 years old biological son. As a father, you’re the man of the house, both breadwinner and provider. In fact, you are the role model to your son, he looked up to you. Therefore, you ought to render unconditional love, care and sacrificed your own to protect your child’s livelihood, safety and well-being. You should be the one he commits to seek comfort and safety, the one he will run to when he faces challenges and problems in life. Instead, you allow the rage in you to separate this, the rage which stems out from illegal plant “Marijuana” which eventually led to the unsightly assault on your child. Your actions will no doubt affects the child psychologically. You have breached this trust which was vested in you as the father of the victim.
     
   • 9.2. The victim is a 3 years’ child/ huge age disparity – You are an adult of 36 years old and the victim is your own son, 3 years old. The gap is 30 years’ difference or age disparity, any force used even if it’s a slap is utterly intolerable. The force used is totally uncalled for. He is a child, the very weak person in your home, instead, you slapped him and later returned to kicked him on his thigh which he suffered fractured thighbone that was reflected in the medical report tendered in court. This is a hideous and cruel child abuse act on your 3 years old son.
     
   • 9.3. Unprovoked act – You submit to your rage because your 3 years old son uprooted your “Marijuana” plant, I totally disagree that this should form valid provocation to place some benefit on your part. “Marijuana” is an illegal plant, hence, cannot seek shelter under it to justify any provocation to trigger your temper. This is an unprovoked act in its entirety.
     

Case authorities:

10. In the case of Kilatu v R^[1], the accused nitially sentenentenced for 2 years’ imprisonment following his guilty plea for the offence of assault causing actual bodily harm. He committed the offence after he was offended by the v inside the prison at Rove.Rove. Victim sustained injuries to his lips and tooth and was hospitalised for three weeks. No mention of weapon used in the commission of the offence. On appeal, his sentence was reduced to 1 year imprisonment by the High Court. The reduction of the sentence was due to the failure of the sentencing Magistrate to give sufficient weight to the mitigating factors on behalf of Kilatu.
    
11. In R v Patare^[2], the accused pleaded guilty to assault causing actual bodily harm beside his other rape charge. He used a torch to threaten and frighten the victim who was 15 years old and his niece. He eventuused that torch to assault the victim. There is no record oord of any injury suffered by the victim. He was sentenced to 1 year imprisonment.
    
12. In R v Fakatonu^[3], the accused reviously sentesentenced to 4 months for the offence of assault causing actual bodily harm. The facts are unclear in the review decision. On review by the High Court, it was increased to 12 moon the basis that the sentesentence was too lenient.
    
13. In R v Chacia^[4], the accwas sentenced to 18 o 18 months after he pleaded guilty to the offence of assault causing actual bodily harm. That sentence was confirmed on appeal by the Courtppeal. In this case, the accused viciously assaulted the vihe victim (a 65 year old woman) to her mouth, breast, shoulder, rib and back before he raped her that same night. No weapon was used. The trial Court described that attack as “outrageous”.
    
14. In R v Panio, the accused was sentenced to 26 months’ imprisonment after he pleaded guilty to the offence of assault causing actual bodily harm. The victim was simply minding his own business when he saw the accused got out of a vehicle with a bush knife and approached him. The accused without saying any word slash the bush knife towards the victim, luckily the victim stepped back and the knife missed him. While the victim was on the ground, the accused moved over and punched him several times on his facial area. was transported to Tingoa Health Centre for medical treatment.
    
15. Having closely observed the past cases, it appears that the sentencing range is between, non-custodial sentence to 2 years’ imprisonment depending on the gravity of offence and level of culpability of the accused person.
    
16. For this case, having assessed the circumstance of offending and the apparent aggravating factors herein, any starting point must one that carries a beacon of deterrence to yourself, the likeminded offenders and those who hid behind closed doors and veils to conduct cruel assault on innocent children. Children’s experiences and the bond they form with their parents and their first learning experiences deeply affect their future physical, cognitive, emotional and social development.
    
17. I see it appropriate to reiterate the sentiments echoed by His Lordship, Palmer CJ, in the case of R v Ludawane^[5], concerning the need for parents to appreciate and treasure their children, and not to abuse them:
    

“The most important gift any parent can be given is a son or daughter. “Children are a heritage from the Lord, and the fruit of the womb is his reward” (Psalm 127:3). The word “heritage” means a blessing and a gift. Children are not property to do as one pleases, rather you are required to bring them up in the “nurture and admonition of the Lord (Ephesians 6:4)”. There are many parents who spend more time taking care of their flowers and gardens, but spend little time on the most valuable gift in their hands, their children. A master carver or painter will spend hours to perfect the image of his carving or painting, how much more should parent on building, mentoring and training their children, so that the right image is produced in their children, based on Christian values and principles, of godliness, righteousness, honesty, love, hard work and truth. There is no perfect parent in this world but God gives his Grace to parents to enable them discharge their parental duties”.^[6]

18. This case is far more disturbing than the case of Kilatu and Panio, simply because it involves your own 3 years old son and that he suffered serious injury to his thighbone. The medical report stated that the femoral fractures are prone to concealed haemorrhage which might be a significant threat to life.
    
19. Having looked at your entire culpability, the medical report and consideration to the view shared in the case of Ludawane, it is my respectful view that the appropriate starting point in this case is 4 years’ imprisonment.
    

Sentencing remarks:

20. Children are gifts from God and are to be treasured whole heartedly. You are so fortunate to be blessed with two children, some parents are praying and struggling to bear a single child. It is so disheartening to see you take this blessing for granted in a very cruel way.
    
21. In our Solomon Islands traditional culture, it is our cultural norm that once we grow old our children will then care, provide and look after us, because we do not have benefits like pensions and others that developed nations have. While we acknowledge this cultural norm, children are only humans, hence, if we inhumanely treat them during their early stages of life, they are susceptible to change and we are expecting nothing but ill-treatment from them when we are old. I hope you can slowly absorb the vast benefits of having a child or children and repercussions if you take it for granted.
    
22. The sentence I will pass must bring dawn to your dark life so you can redirect your mindset to a much productive and beneficial things in life. You must now put a halt on all illegal activities such planting marijuana and others and commit your time to your family and contemplate on how to support them in a more lawful way.

Mitigating factors:

23. I take due account to the following factors as mitigation in your case: -
    
    • 23.1. Guilty plea & Remorseful – You entered unequivocal guilty plea to the charge against you. 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. Your guilty pleas show remorse and saves courts time and resource to run a full trial.
      
    • 23.2. No previous conviction - 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.
      

Sentencing consideration:

24. I hereby reduce 12 months to consider your guilty plea, 1 month to consider that you are a first-time offender and or that you have no previous conviction.
    
25. The resulting sentence is therefore, 35 months’ or 2 years 11 months imprisonment.
    

Sentencing Order:

26. I hereby sentence you Mr. Solomon Kana Lianga to 35 months’ or 2 years 11 months imprisonment.
    
27. Time spent in custody or any pre-detention period must be deducted from this head sentence.
    
28. 14 days right of appeal applies.
    
29. Order accordingly.
    

THE COURT

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

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^[1] [2005] SBHC 118
^[2] [2014] SBHC 79
^[3] [1990] SILR 97
^[4] [HCSI-CRC 95 of 2012
^[5] [2010] SBHC 128; HCSI-CRC 233 of 2008
^[6] At page 2 of the sentence