R v Madala [2019] SBMC 17; Criminal Case 88 of 2019 (27 March 2019)

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

Criminal Case No. 88 of 2019

REGINA

-V-

TELA LEVAN MADALA

Date of Hearing: March 26^th, 2019
Date of Sentence: March 27^th, 2019

Mr. Tamaeri. Cheong for the prosecution
Accused in person

SENTENCE

Introduction:

1. The accused Mr. Tela Levan Madala appeared before me this morning on a charge of Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code (Cap. 26) and Consuming Liquor in Public Place. He entered guilty pleas to both charges and I accordingly entered convictions on his own guilty pleas. This is his sentence for the above two offences.
   

Agreed summary of facts:

2. The facts you agreed to revealed that, on the 23^rd of march 2019, at around 7:00pm, the accused was drinking homebrew with his six (6) friends in the village area. Later that evening, the police attended to them, raided one of his friends’ illegal brewery and confiscated the implements used.
   
3. While the police were still at his friend’s compound, the accused got a 35-centimetre timber, a 26 inches’ bush knife and an axe and went to the victim’s family home.
   
4. Upon his arrival, being filled with rage and aggression, he lashed the 35-centimetres timber on the back of victim’s head. He further moved closer with his left hand closed fist and punched the victim’s face. He then pulled out his bush knife and threatened to use it against the victim and the child.
   
5. Later, he proceeded to pick up his axe and landed its blunt side on the victim’s left foot which she sustains injuries on that foot. The victim was carrying a 7 months old disable baby while being cruelly assaulted by the accused person.
   
6. She was later taken to the nearby clinic and received medical assistance from a Registered Nurse.
   
7. The accused was arrested, charged and brought to court to answer to the charges against him.
   

Maximum Penalty:

8. The maximum sentence that the Courts normally imposed for the offence of Assault Causing Actual Bodily Harm is 5 years’ imprisonment as reflected in the Penal Code (Cap. 26). This only divulges the intention and attitude of our lawmakers to discourage and advocate “no tolerance” to such offence.
   
9. The law is clear that the maximum penalty is usually reserved for the worst type of offending and or the 5 years’ imprisonment will normally be imposed in the worst type of Assault Causing Actual Bodily Harm cases.
   
10. Cases are to be considered on their own unique set of facts and merits. Offenders who used weapon to aid the carrying out of their crime will expect heftier sentence than one which uses his barehand. No two cases are the same but distinct on their own set of facts, how it was committed and the extent of injury sustained.
    

Aggravating factors:

11. Having perused the facts, I find the following to be the aggravating factors in your case: -
    
    • 11.1. Use of dangerous weapon – You used a 35-centimetres piece timber, a 26-inches’ bush knife and an axe to assault the victim with. Although the medical report only stated swollen and haematoma at the victim’s left hand, left foot and head, these are dangerous weapons capable of inflicting serious injuries on a human body. The fact that the accused applied it on the victim’s head aggravates it as well, head is a vulnerable part of the body and houses the brain or human control-box.
      
    • 11.2. Intoxicated during the commission of offence – You were drunk when you committed the offence. It appears that you used the alcohol as a catalyst to ignite the rage in you to attack the victim. I see this as a premeditated thought on your part as well. It is well settled law that those you consumed liquor to execute an offence must wholeheartedly accept the consequences from their actions and expect no leniency from the court.
      
    • 11.3. Unprovoked act – The victim was simply carrying a 7 months old disable child when you appeared and did those hideous assaults on her body. There was no evidence of provocation to say that it might have triggered your temper to act that way. I consider your conduct as one that is totally unprovoked.
      
    • 11.4. The victim is a female – The accused is a well built, strong and energetic person and victim is a female who obviously is physically weaker than the accused person. The assaults were definitely unnecessary and pointless. The facts revealed that she was carrying a child as well, apparently, her hands are engaged leaving herself defenceless. Even if the accused used his barehand, she would not have defended herself, how much more can she defend herself and withstand the pain that stems from the use of weapons. This is a callous and cowardice act on the accused part.
      
    • 11.5. Repeated assault – The accused did not only punch but used weapons and threats towards the victim as well. He did those act as if he enjoyed doing it, hence, I consider it as repeated in nature.
      

Case Authorities:

12. In R v Peter^[1], the accused was sentenced to 5 months’ imprisonment following his guilty plea to the offence of Assault Causing Actual Bodily Harm. The facts were that the accused was arguing with his girlfriend when the victim met them and told the accused not to do any assault on the girlfriend as it would constitute domestic violence should police arrest him. The accused then swore at the victim, approached and punched her. She fell and while she was on the ground he repeatedly kicked her. The victim was a female and an unprovoked act on an innocent victim who tries to give some positive and constructive advice to the accused.
    
13. In case of R v Panio^[2], 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.
    
14. In R v Lianga,^[3] the accused was sentenced to 2 years and 11 months’ imprisonment after he pleaded guilty to the offence of assault causing actual bodily harm. The victim was his own 3 years old son. He was enraged after his son innocuously uprooted his marijuana plants. He slapped the victim’s head and after some moment wasn’t satisfied so he went back kicked the victim on the thigh which he suffered a fractured thigh bone. The medical report showed that the Femoral fractures are prone to concealed haemorrhage which might be a significant threat to life.
    
15. In R v Chacia,^[4] the accused was sentenced to 18 months after he pleaded guilty to the offence of assault causing actual bodily harm. That sentence was confirmed on appeal by the Court of Appeal. In this case, the accused viciously assaulted the 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”.
    
16. A closer look at the above cases cited and comparing with this case herein, obviously, this case falls at the top of the case of Peter and Panio, but below the case of Lianga.
    
17. There were several weapons used by the accused person to assault the victim. It was so fortunate that the medical report did not reflect a serious wound on the victim’s body, because if it was so, the charge would be a serious one.
    

Starting point:

18. This is a very serious case that involves a female who was carrying a disable child of 7 months old when the accused heartlessly assaulted her using dangerous weapons.
    
19. Having considered the accused level of culpability, the apparent aggravating factors and the extent of injuries described in the medical report, the appropriate starting point in my view is 3 years imprisonment.
    

Sentencing remarks:

20. Your case is so disturbing mainly because you used dangerous weapons to assault the victim with, not once but repeatedly. The sentence that I will pass must resonate the theme that is “Never allow temper to defeat your good self and never ever lay hands or apply any weapon on a female or woman”.
    
21. Women or females are weaker and vulnerable persons in our society, they can talk and shout but they are simply physically weaker to men, both emotionally and physically.
    
22. Should you reflect back and think alcohol might be the primary factor to your action, then this is the time to reverse or re-direct your life’s compass. As I can gather, there is nothing good about drinking homebrew in the village, because what you do is simply making noises, cause fear to villagers, create problem and arguments in the village. Disharmony, havoc and chaos in our community is all that homebrew gives. Learn to take a step out, because it is now or never.
    
23. Should you think seeking divine intervention is a rightful course to take, then I positively appreciate that, because to embark on that route will only pave your way to a much brighter things in life. It will bring dawn to your toughest and darkest times, that is, to shape you into a much better person for your wife and future children.
    
24. Most people in our communities wants to be boxers and street-fighters when they are intoxicated with alcohol but the problem is they always pick on the very weak and vulnerable opponents; women and children. If you think you have a potential career in boxing or punching then you should enquire with friends to register at a boxing club. For use of weapon, I think only WWE or Wrestling allows this in their rules, so you might wish to register and then can see if you can use the same talent against “The Rock Johnson” this is so we see whether you can withstand his punches or not. It’s sometimes good to at least feel the receive punches from such person of his calibre to assess our own self and worth in terms of fighting.
    

Mitigating factors:

25. I take due account to the following factors as mitigation in your case: -
    
    • 25.1. 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.
      
    • 25.2. 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:

26. I hereby reduce 9 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.
    
27. The resulting sentence is therefore, 26 months’ or 2 years and 2 months’ imprisonment.
    

Sentencing Order:

28. I hereby sentence you Mr. Tela Levan Madala to 26 months’ or 2 years 2 months imprisonment.
    
29. Time spent in custody or any pre-detention period must be deducted from this head sentence.
    
30. 14 days right of appeal applies.
    
31. Order accordingly.
    

THE COURT

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

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^[1] [2018] SBMC 208
^[2] [2016] SBMC 4
^[3] WDMC-CRC 185 of 2018
^[4] HCSI-CRC 95 of 2012