R v Jituvuru [2019] SBMC 8; Criminal Case 180 of 2017 (31 January 2019)

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

Criminal Case No. 180 of 2017

REGINA

-V-

ANNA JITUVURU

Date of Hearing: January 31^th, 2019
Date of Sentence: January 31^th, 2019

Mr. Ronnie. Pisei for the prosecution
Mr. Dirk. Heinz for the defendant

SENTENCE

Introduction:

1. Mrs. Anna Jituvuru, you appear before me today on a charge of Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code. You pleaded guilty accordingly, hence, I enter conviction on your own guilty plea. I now deliver my sentence for your case.
   

Agreed summary of facts:

2. The brief facts which you agreed to tender stated that on May 24^th, 2017 at about 6:00pm at Iriqila village, vella la vella, the victim Mrs. Ender Piqe was on her way to a store when she met a little girl crying, she enquired as to what had happened to the little girl and a child told her Celia was responsible.
   
3. Upon hearing this, Mrs. Piqe uttered words to the effect, “Way blo oketa half sense na iufala duim yah” in English it means “Such attitudes only practiced by mentally ill people”. Thereafter, she led Kirsty back to her house. On their way back she met her cousin sister Masiolo and Tolabule at the playing field and chat with them, while they were still chatting you approached her from behind and told Mrs. Piqe the following words “How na you say half sense lo daughter blo me” and without waiting for her explaiannt, you hit the back of Mrs. Piqe’s head, as a result she felt dizzy. You proceeded further by punching her face and back.
   
4. Blood came out from her nose, mouth and she urinated or peed her pants. Her medical report stated that her abdomen was distended and developing sob (Shortness of breath) also swollen left face with laceration on her upper left eyebrow. These were injuries she sustained after you assaulted her. She was transported to the Gizo hospital where she was provided with medical assistance.
   

Maximum Penalty:

5. The maximum penalty for Assault Causing Actual Bodily Harm is 5 years’ imprisonment. This shows or indicated the intention of the legislatures or law making body to abhor or discourage such offending. Of course, it is trite law that the maximum penalty is reserved for the worse type of offending.
   
6. The sentencing tariff ranges from suspended sentencing to custodial sentences, depending on the severity of the offence.
   

Aggravating factors:

7. Having perused the brief facts, these are of course the apparent aggravating factors in your case:
   
   • 7.1. The manner in which you assaulted her was extremely cruel and inhumane. You viciously and repeatedly beat her face and back until blood came out from her nose, mouth and she peed her pants.
     

Mitigating factors:

8. I give credit for your following mitigating factors: -
   
   • 8.1. Unequivocal guilty plea – You entered an early guilty plea to the charge against you. I acknowledge that you appeared remorseful in court. Your guilty plea shows that you have own up to your wrong and accept the full consequence of your action. I shall give you full discount provided in the case of Qoloni, that is, 25% discount to any head sentence.
     
   • 8.2. You are a first-time offender – This is the first time for you to have a brush with the law. For the past 40 years old, you have been a law abiding citizen of this nation.
     
   • 8.3. Reconciliation and payment of compensation – There has been a reconciliation conducted and payment of compensation and traditional money (Bakisa) to the victim by yourself.
     
   • 8.4. Personal circumstances – I acknowledge that you are married and a mother of 5 children.
     

Case Authorities:

9. In Regina v Paewa^[1] The accused in this matter was convicted of Assault Causing Actual Bodily Harm with Common Assault. The accused was intoxicated with alcohol and used a kitchen knife to inflict injury on the victim’s head. He was sentenced to 12 months for the Assault Causin#160;Actu>Actual Bodily Harm but was suspended for two years.
   
10. [2] the accused was previousntesentenced 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 wareased to 12 months on the basis that the sentence was too too lenient.
    
11. I have considered the above cases and noted that most of these cases cited are more serious than the present case and involved the use of dangerous weapon compared to use of bare hands in the present case. The case of R v Maxwell ^[3]is quite similar to the present one, however, the manner in which the victim was attacked is far more sophisticated, prolonged and cruel than the present one.
    

Sentencing principle:

12. In terms of sentencing, the cardinal principle is simple, that is, each case has to be decided on its own unique set of facts. Past cases can only be used as a guide and sometimes can be of little value. In Sahu v Regina^[4] the Court stated:
    

“It is well accepted that the technique of comparing sentences imposed in different cases is of limited assistance and provides only imperfect guidance as to the appropriate sentence in any given case.” However, to ensure uniformity and coherence, past cases can be of significant assistance.

13. I am mindful that the public interest to deter this type of offending in our country is extremely high given it is very common in our communities. Also, I must consider that it is equally important not to overlook the wounds suffered by the victim to this case when it comes to sentencing. If the court imposes a sentence that is too remorseful or does little to heal the wounds suffered by the victims of crime, it will fail to serve the interest of the victims of violent crimes.^[5]
    
10. In terms of sentencing, the cardinal principle is simple, that is, each case must be decided on its own unique set of facts. Past cases can only be used as a guide and sometimes can be of little value. In Sahu v Regina^[6] the Court stated:

“It is well accepted that the technique of comparing sentences imposed in different cases is of limited assistance and provides only imperfect guidance as to the appropriate sentence in any given case.” However, to ensure uniformity and coherence, past cases can be of significant assistance.

11. Considering the seriousness of this offence, your level of culpability and balancing them with the mitigating and personal circumstances, the appropriate starting point in my view in your case is 8 months’ imprisonment.

Sentencing consideration:

12. I reduce 25% or 2 months accordingly to reflect your early guilty plea as provided in R –v-Qoloni^[7]. I further reduce 2 months to reflect the fact that you are a first time offender and reconciliation plus payment of compensation. The resulting sentence therefore is that you will serve 4 months imprisonment.

Sentencing Orders:

13. I hereby sentence you Mrs. Anna Jituvuru as follows:
    
    • 13.1. Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code – 4 months imprisonment.
      
14. Having stood back and considered your personal circumstance, the fact that you are a mother to 5 children and your husband is prepared to do his studies at the Solomon Islands National University, I am of the view that any incarceration will definitely have a crushing effect on your innocent children. Therefore, it follows that I invoke section 44 of the Penal Code and I hereby order that the 4 months imprisonment to be fully suspended for 2 years as of today on the condition that you will not commit any offence during the suspension period. A breach of this condition will result in the automatic reinstatement of the term suspended.
    
15. You must learn to respect people and above all the rule of law. Remember to never take the law into your own hands. You must understand and realize the consequence of what you did, that it is not a minor offence. This case should be a lesson learnt or a turning point for you since the leniency given in your sentence will not be expected or even repeated if you continue take the law into your own hands.
    
16. 14 days right of appeal applies.
    
17. Order accordingly.
    

THE COURT

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

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^[1] [2016] SBHC 86
^[2] [1990] SILR 97
^[3] [2017] SBMC 5
^[4] [2012] SBHC 122
^[5] Criminal Case No. 76 of 2018
^[6] [2012] SBHC 122
^[7] [2005] SBHC 73; HCSI-CRC 076 of 2005