R v Menime [2019] SBMC 20; Criminal Case 97 of 2019 (24 April 2019)

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

Criminal Case No. 97 of 2019

REGINA

-V-

LEONARD MENIME

Date of Hearing: April 18^th, 2019
Date of Sentence: April 24^th, 2019

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

SENTENCE

Introduction:

1. On 18^th of April 2019, you were arraigned and entered guilty pleas to two (2) counts of wilful and unlawful damage contrary to section 326 (1) of the Penal Code^[1] and a count of Assault on police officer contrary to section 190 of the Police Act^[2]. Thereafter, I remanded you in custody pending sentence after which I had considered your case to be one that possess intrinsic aggravating factors that warrants immediate custodial sentence. I now proceed to deliver my sentence for your case.
   

Background facts:

2. These are the pertinent facts surrounding the facts, on the 4^th of August 2018, PC Fakaus and PC Vatu attended a report at the Red Store, Ela Motor Area where they found you drunk and took a Packet of PK (gum) from the shop without buying it. Upon arrival, PC Vatu approached you and asked you to follow him to the Red Store to settle the issue. You refused and PC Vatu then grabbed your hand and handcuffed you. You then struggled to remove the handcuff and in doing so you kicked PC Vatu with your right leg.
   
3. As you were still trying to remove the handcuff, you turned and grabbed PC Vatu’s police uniform (Sky blue Shirt) which resulted in it being ripped off from its button. With the help of PC Fakaus and your other relatives, they manage to place you inside the police vehicle and took you to the Police station where you were formally arrested, charged and placed in police custody. You were then later bailed to attend the Noro Magistrates Court circuit.
   
4. On 8^th of April 2019, at around 12:00 midnight, you went to Jessie Chow’s house which your wantoks were residing at and asked them to charge your mobile phone. You were drunk at that time. No one respond positively to your request so you got angry and broke a wooden chair and a thermos which were all properties of Ms. Chow. The matter was reported to police and they arrested, charged you and you were bailed to attend this court.
   

Maximum Penalty:

5. The maximum punishment sanctioned under the Penal Code^[3] for the offence of wilful and unlawful damage is 2 years imprisonment and for Assault on police officer, fine of $50,000 or 5 years’ imprisonment. Both of these offences are serious as reflected on the maximum terms.
   

Pertinent theme:

6. The pertinent theme I wish to articulate in your case is; “lack of respect, consideration and empathy towards ordinary individuals, members of public, foreigners, business investors, law enforcement body and the rule of law in Solomon Islands. A behaviour which was purely being orchestrated by alcohol and illusionary driven mentality”
   

Aggravating factors:

7. I have reviewed the facts in your case and considered the following to be the aggravating factors:
   
   1. Total disrespect to PC Vatu and RSIPF – the action demonstrated by yourself on the 4^th of August 2018, shows that you totally have no respect and honour for the Royal Solomon Islands Police Force. They were there to maintain law and order so that things does not go out of hand, instead you reacted which resulted to your arrest.
      
   2. You conducts were unprovoked – All your offences or acts were unprovoked, you simply did those offences out of your own freewill to innocent people who were running their own shops and minding their own business.
      
   100. You were intoxicated with alcohol on both occasion – it appears that you committed both offences while being under the influence of liquor. Those who consumed liquor to commit an offence must not shy away from the consequences that stems from drunkenness. In case of R v Oma^[4], the court plainly express the sentiments that those who were intoxicated with alcohol during commission of an offence must expect no leniency from the Court.
        

Case Authorities:

8. In case of R v Lomulo^[5] the accused was sentenced to 7 months imprisonment. He pleaded guilty to a count of wilful and unlawful damage and one count Domestic violence. He was sentenced for 7months to the Domestic violence charge and 3 months imprisonment for the offence of wilful and unlawful damage which was to be served concurrently. The facts is that he was drunk, got into an argument with his partner whereby he punched his partner on her head with his right hand closed fist. Thereafter, he proceeded and destroyed her partner’s police documents, ripped apart her police uniform shirt and 2 police forage caps.
   
9. In case of R v Homelo^[6], 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.
10. In case of R v Lawson^[7], 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.
    
11. In R v Alatala^[8], the accused is a juvenile. He pleaded guilty to a count of willful and unlawful damage and was sentenced to one year imprisonment.
    
12. In case of R v Junior^[9] 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 “m mummy and sistesister blong yufala everyone.” After tered these swearing ring words, he lashed his right hand at a lighting bulb and smashed it into pieces. Next, he moved to another bulb and kicked it with his leg and broke it as well. He then moved to another bulb and 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.
    
13. In case of R v Pauline^[10]the accused pleaded guilty to a count of intimidation and assault on police officer. She was then sentenced to 5 months imprisonment to be served concurrently to charge of intimidation. The facts is that, on the date of offending duty police officers carried out an arrest on a suspect, Jerick Simoa, near the SIBC compound area. The accused who was also present at that time shouted to one of the Police officers by the name of Philemon Taneko saying “no arrestim man ya.” Whilst the suspect was arrested and placed in the police vehicle, the accused disregarded the police officers; went to the police vehicle and deliberately pulled out the suspect intending to take him out from being apprehended by the police officers. Realising she had obstructed the police officers, she was advised by those police officers that the suspect was already under their custody and that she should go back home and have her rest. Having heard that, she turned to a police officer by the name of Philemon Taneko and hit him on his chest. She did that when he was performing his duty during the arrest.
    
14. Having assessed the above cases cited with the one at hand, it is my view that it falls below the case of Lomulo and Pauline. In this case, the damage was only to the button of police uniform and nothing further, hence, case of Lomulo is more serious as uniform was being ripped off and 2 forage caps including police documents. For the damage to chair and thermos, I do acknowledge the value to one that considerably similar to case of Lomulo. In Pauline’s case the punch landed to the police officer’s chest as compared to this case whereby it involves a single kick. Further, it was unclear from the facts where the kick landed. The absence of such facts must tilt to your benefit, that is, the kick did not land on any vulnerable part of the complainant’s body plus there was no injury sustained.
    

Sentencing principles:

15. Both offences herein subject of this case were committed on two separate occasions against different victims. You were intoxicated with alcohol and by observing these offences, you had demonstrated a “no care attitude” quite confidently. Therefore, it is my view, that any sentence this court will impose must one that carries the beacon of personal and general deterrence. The purpose for personal deterrence is to impart a message to yourself to put a stop to the trend of committing this type of offence and any other offence in the future. You must understand the rule of law and the abhorrent attitude by courts to sternly punish offenders who continue to create havoc and chaos in our communities plus tainting bad image to our country; Solomon Islands.
    
16. Those who practice such offending or might intend to do so, must now acknowledge the bold stand by Courts against such behaviour and will expect no leniency if they wish to come down the same path. The message is clear and must sink well into the minds of the general public that due to the high rise of disrespect and disregard our Royal Solomon Islands Police Force are experiencing, any sentence unless very unique will be an immediate custodial sentence.
    

Sentencing remarks:

17. In the High Court case of Fafunua v Regina^[11] and was re-echoed in case of R v Pauline^[12] , Palmer CJ, stated the need to respect police officers as follows:
    

“Police Officers are representatives of theeState in the administration of the rule of law and should be respected when they arrive at any scene of crime. They must be allowed to perform their duty in ensuring that peace and normality is restored whether it be in a p place or in a privatrivate homey are mere mediators of peace, under strict duty and discipline, and are extensions of the f the People in so far as law and order is concerned. They have no personal agenda or interinterest to fulfil when attending a crime and therefore shouldhould never be treated with hostility. They are there to keep the peace and protect life, limb and property......An immediate custodial sentence must be expected when any police officer is atta attacked&;^[13]

18. ally accept the sentiment shared by his Lordship and will aill adopt it in my sentence. This Court will never tolerate offences of an attack or assault on police officers during execution of their legitimate duties.
    
19. We the people of Solomon Islands including the foreigners and visitors are all safe and pleased because of the tireless efforts and sacrifices done by our Royal Solomon Islands Police Officers. They have placed their lives on the line for us to go to bed at night and go about our businesses during daytime knowing full well that we are protected from any intruders who might wish to invade our homes, properties and businesses. Our country’s trust and faith against possible attacks from terrorists or suicide bombers and other illegal radicals are in their hands. Therefore, it is only incumbent on all of us to render total respect and honour to them as well as never to turn against them.
    

Starting point:

20. Having closely assessed and considered the circumstance of the offending, the accused level of culpability and the apparent aggravating factors, it is my considered view that the appropriate starting point for the offences are as follows:
    
    1. Count 1 – Wilful and unlawful damage to victim Chow – 5 months imprisonment.
       
    2. Count 2 – Wilful and unlawful damage to victim PC Vatu’s uniform button – 2 months imprisonment.
       
    100. Count 3 – Assault on Police Officer – 6 months imprisonment.
         

Mitigating factors:

21. I have thoroughly looked through your case and validate the following to be your mitigating factors:
    
    1. Guilty pleas/Remorseful – You entered unequivocal guilty pleas to all 3 offences against you on your first appearance for which I must give you credit as provided in the case of Qoloni, that is, 25 % discount from any head sentence. You guilty pleas has shown that you now accept your consequences and willing to own up to your wrongs. Further, it saves all courts time, expense and resources to run a full trial.
       
    2. First time offender – It is undisputed that the accused appear before me today as first time offender. I shall treat him as one and not as a habitual offender. I do agree that for first time offender, there is room for rehabilitation.
       

Sentencing considerations:

22. I hereby reduce your sentences accordingly as follows:
    1. Count 1 – I reduce 1 month to consider your guilty plea and 1 further 1 month to consider the fact that this is the first time for you to have a brush with the law. The resulting sentence is 3 months imprisonment.
       
    2. Count 2 – I reduce 1 month to consider your guilty plea and the fact that you are a first offender. The resulting sentence is therefore, 1 month imprisonment.
       
    100. Count 3 – I hereby reduce 2 months to consider your guilty plea and 1 month to consider the fact that you have been a law abiding citizen for the past years until to date. Therefore, the resulting sentence is 3 months imprisonment.
         

Sentencing order:

1. Against the respective maximum penalty for each offence, I hereby sentenced the accused, Leonard Menime as follows:
   
   • 1.1. Count 1 – Wilful and unlawful Damage contrary to section 326 (1) of the Penal Code 3 month’s imprisonment.
     
   • 1.2. Count 2 – Wilful and unlawful damage 1 month imprisonment.
     
   • 1.3. Count 3 – Assault on Police Officer 3 months imprisonment.
     
2. Since count 2 and 3 were committed against the same victim and stems out from the same set of facts or transaction, I order that count 2 and 3 will be served concurrently. For the reason that count 1 occurred on a different victim, any sentence must be served consecutively. Therefore, count 1 be served consecutively to count 2 and 3.
   
3. The final sentence is 6 months imprisonment.
   
4. Time spent in custody or any pre-detention period must be deducted from this head sentence.
   
5. 14 days right of appeal applies.
   
6. Order accordingly.
   

THE COURT

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

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^[1] (Cap. 26)
^[2] 2013
^[3] Cap 26
^[4] HCSI-CRC 1440 of 2010
^[5] WDMC-CRC 9 of 2019
^[6] WDMC-CRC 85 of 2019
^[7] WDMC-CRC 246 of 2017
^[8] [2017] SBMC 57
^[9] [2017] SBMC 23
^[10] CMC-CRC No. 417 of 2017
^[11] [2004] SBHC 131
^[12] Above n.10
^[13] At page 4