R v Bala [2019] SBMC 9; Criminal Case 138 of 2018 (12 February 2019)

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

Criminal Case No. 138 of 2018

REGINA

-V-

JULIAN BALA

Date of Hearing: February 11^th, 2019
Date of Sentence: February 12^th, 2019

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

SENTENCE

Introduction:

1. Mr. Julian Bala, you appear before me today on a charge of Unlawful Wounding contrary to section 229 of the Penal Code. You pleaded guilty accordingly, hence, I enter conviction on your own guilty plea. I now proceed to deliver my sentence for your case.
   

Brief facts:

2. The brief facts which you agreed to tender to Court shows that on the 28^th July 2018, the victim and his friend were having few beers at their home village of voruvoru, Northwest Choiseul Province.
   
3. At around 1:00pm, you made your way to Voruvoru village and met the victim with his friend along the road leading to the village.
4. The victim without being provoked punched you on your face 3 times which resulted on some injuries to your right eye.
   
5. You then escaped to your house but the victim followed you. You went to your house, took a 19-inch-long bush knife and approached the victim. You then struck the knife on to the victim’s body which he sustained several serious injuries. He was transported to Taro Hospital and then to the National Referral Hospital for further medical attention.
   

Max Penalty:

6. The maximum penalty for unlawful wounding 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.
   
7. The sentencing tariff ranges from 12 months suspended sentence to 4 ½ years’ imprisonment. Depending on the circumstance of the offending and level of culpability involved.

Aggravating factors:

8. Having perused the brief facts, these are of course the apparent aggravating factors in you case:
   
   • 8.1. Use of weapon – You used a bush knife to execute the offence, this totally aggravates the offending. A bush knife when used against a human being will inflict serious injury which might be life threatening as well.
     
   • 8.2. Permanent injury on victim’s right hand - The Medical report tendered shows that the victim’s right hand injury is severe and that it will leave him with permanent loss of function.
     

Case authorities:

9. I appreciate the efforts rendered by counsel Ruele to provide the number of case authorities to assist this court to arrive at a just and fair conclusion and or sentence.
   
10. In case of R v Tome^[1] This is a guilty plea matter. The facts stated that the victim swore and kicked the Defendant, the Defendant retaliated and stabbed him with a knife in return. The injury inflicted was not serious, the wound described as shallow and the victim recovered fully from it. The Court imposed a 24 months’ imprisonment. Defendant was released at the rising of the Court having spent 17 months in remand.
    
11. In case of Carlton Tagini v R^[2], this an appeal against the 2 years’ sentence imposed by the Magistrates Court on a guilty plea. The facts stated that the victim was struck on the forehead with a knife causing him to fall down while the Defendant escaped. He sustained injuries (lacerations) to his forehead and was taken to the hospital and admitted. He was hospitalized for a total of six days. Upon review the Chief Justice, His Lordship Palmer quashed the 2 years’ sentence and imposed substitute sentence of 18 months’ imprisonment.
    
12. In the case of R v Nguyen Van Thang^[3] where 4 ½ years was imposed. A knife was used. Medical report showed the seriousness of the wound. The wound was located in the posterior triangle near the base of the neck. The Doctor described the wound as life threatening with major blood vessel of the neck involved causing massive blood loss.
    
13. In case of Regina -v- Asuana^[4], the accused was convicted and sentenced to 12 months’ imprisonment. It was a nasty and serious attack on a relative. The accused stabbed the victim nine times, five of which were in the victim’s back. By powers of review vested on the higher court, His Lordship Ward CJ (as he then was), quashed the sentence imposed by the Magistrate and imposed two and half years’ imprisonment.
    
14. In case R -v- Gere^[5], the accused pleaded guilty to unlawful wounding by using a knife to stab the victim on the chest. The victim spent eight days in hospital before discharge. The court imposed 18 months’ imprisonment.
    
15. In case R -v- Funifaka^[6], three accused were charged with attempt murder and unlawful wounding on several victims. The victims suffered serious injuries by the accused knife and chisel. The court imposed 2 years’ imprisonment for unlawful wounding.
    
16. In R -v- Sitana^[7], the court sentenced the accused to two years’ imprisonment for slashing a person on the face and neck with a bush knife, resulting in the victim being hospitalized.
    
17. Having outlined the above cases which reveals the ranges of tariffs applied in courts within this Jurisdiction, it is in my view that this case when compared to the above cited cases falls in between the mid-range and upper scale.
    

Sentencing principle:

18. 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^[8] 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.

Sentencing remarks:

19. The victim appears to be the aggressor or the instigator. He punched the Defendant 3 times without any form of provocation. It is irrefutable that human beings should not be ill-treated by such cruel manner. He is a Malaysian national, clearly a foreigner so the least the victim should do as a Solomon Islander is to try and make him feel at home instead of what the he did in this case. The victim should now realise his actions that exacerbated from alcohol, stupidity and utter disrespect.
    
20. Although the victim was the instigator and exert cruelty to the Defendant by assaulting him, this should not exculpate the Defendant from the hideous criminal act he did. The using of a bush knife to inflict injuries on the victim in my view is totally uncalled for, the proportionality is clearly on an imbalance state. The injuries as apparent in the medical report were located around his right hand, hence, must be differentiated with the cited cases which wounds were inflicted on the head or neck. Hence, any starting point must below the cases of; Carlton Tagini^[9]and R v Nguyen Van Thang^[10].
    

Starting point:

21. Having considered the abovementioned aggravating factors including the circumstance of the offending and due consideration to the tariffs provided in the cases cited herein, I see it appropriate that the starting point is 3 years’ imprisonment.
    

Mitigating factors:

22. I take due account to the following factors as mitigation in your case: -
    
    • 22.1. Unequivocal Guilty plea & Remorse – You entered an 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.
      
    • 22.2. First time offender – You are a first-time offender which means that this is the first time for you to have an encounter with the law. Clearly, there’s prospect of rehabilitation.
      
    • 22.3. Provocation – There is a significant provocation by the victim which triggers your temper to retaliate on what he did in this case.
      

Sentencing consideration:

23. I hereby reduce 12 months to consider your guilty plea, 2 months to consider that you are a first-time offender and 4 months for the fact that significant provocation is apparent in this case.
    
24. The resulting sentence is therefore, 18 months’ imprisonment.
    

Sentencing Order:

25. I hereby sentence you Mr. Julian Bala to 18 months’ imprisonment.
    
26. Time spent in custody or pre-detention period shall be deducted from the head sentence.
    
27. 14 days right of appeal applies.
    
28. Order accordingly.
    

THE COURT

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

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^[1] [2017] SBHC 102; HCSI-CRC 504 of 2016 (28 November 2017)
^[2] [2016] SBHC 221; HCSI-CRC 258 of 2015 (18 July 2016)
^[3] [2012] SBHC 133
^[4] [1990] SBHC 106
^[5] [1981] SBHC 6
^[6] [1997] SBHC 31
^[7] [2009] SBHC 57
^[8] [2012] SBHC 122
^[9] At page 3, paragraph 11
^[10] At page 3, paragraph 12