R v Lomulo [2019] SBMC 19; Criminal Case 9 of 2019 (19 April 2019)

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

Criminal Case No. 9 of 2019

REGINA

-V-

CLAYTON LOMULO

Date of Hearing: April 5^th, 2019
Date of Sentence: April 19^th, 2019

Mr. Bradley. L. Dalipanda for the prosecution
Mr. Clifton. M. Ruele for the defendant

SENTENCE

Introduction:

1. Mr. Clayton Lomulo, you appear before me today on two charges, one count of Domestic Violence contrary to section 4 (1) (a) and 58 (1) & (2) of the Family Protection Act 2014 and one count of Willful and Unlawful Damage contrary to section 326 (1) (a) of the Penal Code (Cap. 26). You pleaded guilty to both counts and accordingly I enter conviction on you own guilty pleas. Therefore, I must make an appropriate sentence for your case.
   

Agreed summary of facts:

2. The facts which was agreed by counsels reveal that on 1^st February 2019, between 8:30am to 9:00am, the victim signed off from her duty at Gizo Police Station and went home at Jah Mountain area, Gizo. The victim got home and saw you drunk and or intoxicated with Island Ram.
   
3. She was disappointed with such behaviour, so she approached you and told you that you should show respect to her as she is a police officer and she does not tolerate such criminal activities within the family home. You refused to listen and instead threatened to kill and harm her. Fear of being assaulted, she went into the bedroom. While she was still in the bedroom, you being enraged went after her and started arguing with her.
   
4. Later, you went to kitchen room, got a kitchen knife about (15cm long) and returned to assault her. You first proceeded to the victim’s police documentation and tore them all. She saw what you did and tried to stop you. She attempted to remove the knife from you but was unsuccessful. You then turned and punched her head with your right hand close fist.
   
5. You then got hold of the knife and ripped the victim’s Police properties, one (1) Sky blue police uniform shirt and two (2) female police forage cap.
   
6. As a result of the assault, the victim had suffered pain to her jaw, swollen left side face and upper lip.
   

Aggravating factors:

7. A close look through the facts of your case reveals the following to be the aggravating factors: -
   
   • 7.1. Intoxicated during time of offending – You were drunk when you committed this offence. In case of R v Oma^[1], the court express the view that those who take alcohol to commit an offence must accept the consequences that stems out from it and expect no leniency from the Court. The liquor you consumed was an Island rum or homebrew, an illegal liquor as well. Clearly, you consumed an illegal liquor to commit both illegal conducts.
     
   • 7.2. Unprovoked act – Your actions emanated out of the fact that your partner (victim) told you to refrain from such drinking attitude and to respect her profession as a police officer. Her conduct in my view, was a positive, beneficial and constructive one. I do not see a single element of provocation present in it. In fact, had you heed it you would not be in this Court today.
     
   • 7.3. Breach of trust – The victim is a female who is undoubtedly weaker than you, both physically and emotionally. Further, she is no ordinary female but your partner, one that you were expected to love, care and cherish for life. You were expected to treat her with respect and dignity. Instead you breach the trust expected of another partner within a domestic or marital union.
     
   • 7.4. The documents you tore and uniforms you ripped are properties of RSIPF – It is undisputed that you tore documents, uniforms and forage caps you ripped are owned by RSIPF. These are not ordinary properties but one that victim treasures as her assets. Clearly, a huge loss for the victim, she will need to get a replica for the documents and replacements for the uniforms and forage caps from those responsible superiors to substitute the ones you damaged. Since, you both were living together prior to offending, I take it that you were aware of the significance of these properties yet wilfully ensued and damaged them. It shows your lack of respect, empathy and consideration to your partner’s valued assets or properties. Further, any offence done against the properties of RSIPF must be considered serious for reason that they are highly respected properties cannot be bought from any ordinary shops or retail outlets in Gizo or Honiara town.
     
     • 7.5. The use of weapon to aid your wilful and unlawful damage charge – you used a kitchen knife about (15 cm long) to damage the victim’s police documents and uniform shirt with the 2 forage caps. The presence of weapon aggravates the offending because it had badly damaged the properties making them irreparable.
       

Maximum penalty:

8. Domestic violence is one of the quite serious offences under our laws. This is clearly reflected in the sanction the law prescribes against offenders, which is 3 years’ imprisonment or fine of 30,000 penalty units. The offence of Wilful and Unlawful Damage also carries a maximum punishment of 2 years’ imprisonment. The maximum punishment exemplifies the condemnation and denunciation by our legislators towards such unpleasant crimes in our rural and urban societies.
   
9. The Family Protection Act 2014, is a relatively new act which comes into existence after huge exclamation from women advocates, peaceful protests by activists and public outcry to end violence against women and for equal rights to be rendered to both genders and or by each partner. It mirrors the United Nation Convention on Elimination of Violence Against Women (EVAW), to fight against the prevalent act of violence and assault against women and children in a domestic type setting or family homes.
   
10. It is acknowledged that the maximum penalties alluded above are normally reserved for the worst type of Domestic violence and wilful and unlawful damage cases.
    

Case Authorities:

11. In case of R v Homelo^[2], the accused was sentenced to 18 months’ imprisonment. He pleaded guilty to a count of willful and unlawful damage. The facts are that he was drinking alcohol on the night of offending and attended to Dunken’s canteen at Munda. Being totally drunk, he approached a black Toyota Caldina car and hit the back-rear screen with a hard object. Thereafter, the driver stopped and went to found out that the back-rear glass was broken. The property was valued at about $6,000 inclusive of replacement back-rear screen and labor cost. The act was unprovoked one, occurred at night with the use of weapon. He committed the offence while he was intoxicated. The Defendant was a subsequent offender being released from custody some days prior to commission of this offence.
    
12. In case of R v Lawson^[3], the accused was sentenced to 18 months’ imprisonment. He pleaded guilty to a count of willful and unlawful damage. The facts are that the complainant drove the KFPL company 3ton truck registration number: K217 to drop off Vila SDA Church Members at their homes, after they attended a church program at Ringgi SDA Church. On his return, back from vila village, he met the accused and his brother Vikani on the vila airport road. The accused waved to the driver so he stopped and assisted them with a lift down to Ringgi. On the way to Ringgi, they instructed the driver to stop and drop them. The complainant willingly did and as he was about to drive off, he saw the accused got hold of a stone on his right hand and threw it towards the vehicle. It landed and penetrated through the backlight glass, into the truck’s cabin and broke the front windshield glass as well, fortunately, it missed the complainant. The complainant feared for his safety, drove out fast back to Ringgi station and reported the matter to police. An assessment was carried out by the United Auto Limited and the cost of the damage was SBD$14,525.00. It was an unprovoked act and he committed the offence while he was intoxicated. The accused was a subsequent offender being fined for $500 previously for a criminal trespass offence
    
13. In R v Alatala^[4], the accused is a juvenile. He pleaded guilty to a count of willful and unlawful damage and was sentenced to one year imprisonment.
    
14. In case of R v Junior^[5] the accused pleaded guilty to a count of willful and unlawful damage and was sentenced to 5 months’ imprisonment. The facts are that he and others entered a birthday venue and he shouted saying “fuckem mummy and sister blong yufala everyone.” After he uttered these swg ring words, he lashed his right hand at a lighting bulb and smashed it into pieces. Next,oved to another bulb and kicked it with his left leg and brnd broke it as well. He then moved to another bulb and smashed it with his right hand. Still not satisfied with those bulbs, he moved over to a table, lifted it up and threw it to the ground.
    
15. In R v Foster^[6], the accused assaulted his wife on two occasions. He pleaded guilty and was sentenced to 6 months’ concurrent sentence to his other counts of Domestic violence and intimidation. The accused used weapon to aid the assault on the victim. There was evidence of reconciliation between his wife’s family and himself and that his wife desperately needs him back in the family to support and care for their children. The court was tamed to accept that principal of reintegration was appropriate to coincide with the need to impose deterrence sentence.
    
16. Having outlined the above cases which reveals the ranges of tariffs applied in Courts within this Jurisdiction for offence of willful and unlawful damage, it is in my view that the appropriate range should be one that falls between the case of Junior and Homelo. I am mindful that the value of the property in case of Homelo far exceeds the one herein this case.
    
17. For the Domestic violence charge, I do not have the benefit to glean on any evidence to suggest and or point to reconciliation or indication that your partner is willing to accept you back after what you did as in the case of Foster. Nonetheless, I do accept that human beings make mistakes and learn from it plus partners forgive each other. Hence, any sentence imposed must one that pivots on the possibility of restoring your relationship in a much positive and constructive manner plus to coincide with the need to deter offenders of domestic violence. There are number of apparent aggravating factors that I must consider to pitch the appropriate starting point in this case.
    

Sentencing remarks:

18. At the outset, I must say that alcohol and illegal drugs or substance have side effects and disadvantages. It rarely bring any good into a family home. You need to start think serious about life and building your own future self into a much better person.
    
19. In the case of R v Homelo,^[7] I made this sentiments which I think it’s equally important to restate it here regarding attitudes of individuals who consume alcohol to demonstrate their disagreements or those who think that alcohol brings good to their lives.
    

” Alcohol is a catalyst to the many offences that happened in our communities today. Although, it might have benefits, such as relieving oneself from stress and pressure of today’s world, it is just temporary stress relieving substance. Its disadvantage outweighs it’s very little or no advantage. It stimulates the mind to easily submit to rage, anger and violence, to trick the mind into saying that you are strong and cannot be defeated. But when all is said and done, you are in your bed recollecting and unravelling the bad and disgraceful things that you have done. You can’t redo your wrong because it has already done damage, you are sad and sorry for your actions, but the court aggravates it to determine your appropriate sentence”^[8].

20. Learn to accept improvements from your partner, and be more interactive on discussing personal and family matters instead of turning to violence for advantage. Settling down demands commitment and working together. Complement each other and encourages one another. Work on respecting your counterpart because that entails building your relationship to last forever.
    
21. Your drinking cronies were only interested in your company when it involves alcohol but not what actually what really be beneficial to your relationship with your partner and family.
    
22. Learn to harness your ability to control your temper or rage. If alcohol was the main catalyst then now is the time to start making constructive decisions before you lose your partner, if not, the ones you truly love.

Sta poin point:

23. A closk at the circumstance of the offending, your level of culpability and the apparent aggravatravating factors in your case, it is my view that the appropriate starting point are as follows: -
    
    • 23.1. For Wilful and unlawful damage charge contrary to section 326 (1) (a) of the Penal Code (Cap. 26) – 5 months’ imprisonment.
      
    • 23.2. For Domestic violence charge contrary to section 4 (1) (a) and 58 (1) & (2) of the Family Protection Act 2014 – 12 months’ imprisonment.
      

Mitigating factors:

24. I have considered that following to be your only mitigating factor: -
    
    • 24.1. Guilty plea/Remorseful – You entered some unequivocal guilty pleas to the charges 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 of your actions. Your guilty pleas show remorse and saves courts time and resource to run a full trial plus avoids the strain to have the victim recount on the unpleasant incident.
      
    • 24.2. First time offender – I must tilt this to your favour, any sentence must one that consider you’re not a habitual or repeated offender. This is the first time for you to come before this court to face justice for your wrong. It appears that for the past years you have been a law abiding citizen of this nation.
      

Sentencing consideration:

25. I hereby make the following consideration: -
    
    • 25.1. For wilful and unlawful damage charge – I reduce a month to consider your guilty plea and a month to consider the fact that this is the first time for you to have an encounter with the law. Clearly, there’s prospect of rehabilitation for first-time offenders. The resulting sentence is therefore, 3 months’ Imprisonment.
      
    • 25.2. For the Domestic violence charge - I hereby reduce 3 months to consider your guilty plea and 2 months to consider that you’re a first time offender. The resulting sentence is therefore, 7 months’ imprisonment.
      

Sentencing Order:

26. I hereby sentence you, Mr. Clayton Lomulo as follows:
    
    • 26.1. For Wilful and unlawful damage charge contrary to section 326 (1) of the Penal Code (Cap. 26) – 3 months’ imprisonment.
      
    • 26.2. For the Domestic violence charge contrary to section 4 (1) (a) and 58 (1) & (2) of the Family Protection Act 2014 – 7 months imprisonment.
      
27. I order that all sentences will be served concurrently since they all committed against the victim more or less from domestic violence from your own matrimonial relationship and or that they stem out from the same set of facts and transaction.
    
28. The final sentence is 7 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] HCSI-CRC 1440 of 2010
^[2] WDMC CRC 85 of 2019
^[3] WDMC CRC 246 of 2017
^[4] [2017] SBMC 57
^[5] [2017] SBMC 23
^[6] [2017] SBMC 58; Criminal case 148 of 2017
^[7] WMC-CRC No. 85 of 2019
^[8] At page 3 of the sentence