R v Kiriau [2020] SBMC 12; Criminal Case 12 of 2020 (4 May 2020)

IN THE MALAITA DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT AUKI )
(Criminal Jurisdiction)

Criminal Case No. 12 of 2020

REGINA

-v-

LINUS KIRIAU

Date of Plea: April 20^th, 2020
Date of hearing: April 29^th, 2020
Date of sentence: May 4^th, 2020

Mr. Selwyn Vaike for the Prosecution
Ms. Cathy. S. Hite for the Accused

SENTENCE

Introduction

1. The Accused; Mr. Linus Kiriau has entered guilty pleas to two (2) counts of Domestic violence – Physical Abuse contrary to section 4 (1) (a) of the Family Protection Act 2014 as read with section 58 of the said Act. He has also concurred with the facts surrounding the offending. I thereby registered conviction upon his own clear pleas.
   
2. These two (2) counts were conducted on his dear wife. She has suffered beating under the hands of her husband. This is a serious offence which attracts a maximum penalty of $30,000 penalty units or 3 years imprisonment or both. Its introduction is to combat domestic violence offence and to reflect the repugnance by our legislators to this offence in our communities.
   

Agreed Facts

3. On the 24^th of June 2014, the Accused and one of their daughters namely; Georgina were residing in Honiara Burns Creek with his family while the victim and two other children were residing in Gou’ulu village, Malaita Province. Their daughter Georgina got sick and after some medical treatments she did not recover, thus the Accused telephoned the victim and informed her of the situation. The victim told the Accused that she knew the cause of the sickness and agreed to travel to Honiara.
   
4. When she arrived in Honiara the Accused and victim started discussing the cause of the sickness which ended up bitter into a heated argument with allegation of infidelity of the victim. The victim then escaped to a relative’s house on that day. The Accused was in a rage and went looking for the victim. Sometimes in the evening, the victim returned to the house with one of her male relatives, they were then approached by the Accused who came and punched the victim on her mouth with a closed fist. He grabbed the victim and dragged her back to his parent’s house. The victim had lost a tooth as a result of the hard punch.
   
5. In 2015 the family moved back to their home at Gou’ulu village, North Malaita, Malaita Province. The Accused continue to threaten the victim. He forced the victim to confess to him on the person she had had sexual intercourse with while he was serving his jail term in 2013. This stemmed from the fact that he would normally receive comments from victim’s Father and other relatives that the victim should have married different person instead of him.
   
6. The second count relates to the incident in 2019. On the 23^rd of February 2019, while the Accused and victim were in the garden harvesting their root crops, they entered into a heated argument over which part of the garden to be harvested, this led to the Accused slapping the victim with his right hand. He then grabbed her chest and squeezed it firmly causing his sharp nails to penetrate her skin. She also sustained scratches on her chest and shoulder.
   
7. The victim could not bear it anymore, thus, on the 28^th of May 2019, she went and reported the matter to Police. A Police safety notice was served on the Accused at Auki Police Station and he then left to Honiara.
   
8. Later, the victim reported the Domestic violence matter and the Accused was arrested and charged for the two (2) counts of physical abuse that is the subject in this sentence.
   
9. I also noted that he is not a first offender having being sentenced to imprisonment in 2013. It is clear that for these lapse of time, he had not learn from his past incarceration.
   

Aggravating Factors

10. These are the apparent aggravating features; first, the victim had suffered serious injuries to her body for both counts and a fallen tooth in relation to the initial count. This is a permanent injury which she will endure for the rest of her life. It will also affect her physical appearance and how she eats or chew food. Its nature fall akin to that of Grievous Harm which demonstrates its seriousness. Second, it involved a very cruel and punishing type of behavior on the weak and vulnerable victim. A person who he ought to love, care and cherish. He has totally breached his duty as a husband and father when he did this offences. Third, he repeatedly committed the offence. He never stand back to learn from the first count.
    

Case Authorities

11. The following are case authorities used to assist in pitching the appropriate starting point and arriving at a proper and just sentence.
    
12. In R v Ninamu^[1], the Accused pleaded guilty to the charge of Domestic violence and physical abuse against his own dear wife. He assaulted the victim by punching her left-side cheek and as a result caused swollen and slight laceration. The particulars of the charge stated that he grabbed the victim’s hair and dragged her around several times. He was sentenced to 8 months imprisonment and suspended wholly for 2 years due to strong reconciliation by Reverend Beckily Kahui and the physical appearance of the child and victim in Court to confirm the need of the Accused in the family and forgiveness.
    
13. In R v Foster^[2], 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.
    
14. In Regina v Ramai^[3] Mr. Ramai was charged with 2 counts of domestic violence. The facts are as follows, for the first incident, Mr. Ramai threatened to cut the victim into pieces with a bush knife. For the second incident, Mr. Ramai slapped the victim on the mouth and used a stone to hit the victim three times on the shoulder. He only stopped because the victim’s sister intervened. The starting point for the first incident was 4 months imprisonment, and for the second offence 18 months imprisonment. Taking into account the mitigating factors including a 25% discount reduction for an early guilty plea, the Court further reduce 4 months to consider his past clean criminal history and 6 months deduction for reconciliation, the total sentence was 5 months imprisonment.
    
15. I wish to adopt the sentencing guidelines provided in a New Zealand case of R v Taueki^[4] where O’regan J, in delivering the judgment of the New Zealand Court of Appeal said at para [33], pp.383-384;
    

“... (a) Domestic situation: the fact that violence occurs in a domestic situation should not be seen as reducing its seriousness. Indeed, domestic violence is a major problem in New Zealand society and, by its very nature, one which is difficult to detect. It frequently involves violence by a man against a woman or child, were vulnerability of the victim is a significant factor. (b) Victim’s plea: sometimes the victim of a serious assault, particularly in a domestic situation, will ask the Court to impose a lenient sentence. This provides something of a dilemma for a Court, but in our view the position is now clear that the Court should not condone violent conduct even if the victim does so: there is a public interest at stake as well as the interest of the victim: R v Clotworthy (1998) 15 CRNZ 651 at p659. That is not, however to say that the views of the victim are to be ignored, rather it is simply to emphasize that the views of the victim do not outweigh the public interest...”

16. Having taken into account matters in the above cited cases, the sentencing tariffs imposed by our Courts and due guidance with the persuasive sentiments in the New Zealand Court of Appeal in case of Taueki, I can safely conclude that this is one of those grave and unsightly domestic violence (physical Abuse) case, as such see it fitting to impose a starting point of 3 years imprisonment for count 1 and 2 years imprisonment on count 2.
    
17. I increase count 1 by 12 months and count 2 by 6 months to consider the aggravating factors and gravity of physical abuse on the victim in both cases.
    

Mitigating Factors

18. The Accused has boldly accepted his wrongs and troubles from his actions which has affected his own family, this is apparent in his early guilty pleas to both counts. His pleas have reserved finance for worthy contested cases and has also allow the victim to slowly let go of the past awful memories. He has voluntarily confessed to his wrongs in his record of interview and assisted the police during investigation which resulted in the early closure and completion of his matter. For the first incident he has also taken the initiative to reconcile with the victim before a church leader and gave compensation of $300.00 to the victim. For the subsequent incident he also reconciled with the victim but without any form of compensation.
    

Sentencing consideration

Count 1

19. I hereby decrease by 12 months or 1 year to give credit for his early guilty plea. Further 4 months is deducted to consider his corporation with police during investigation and reconciliation. Total of 1 year 4 months’ is reduced accordingly.
    

Count 2

20. I also deduct 8 months to give credit to his early guilty plea. Further 4 months is deducted to consider his corporation with police during investigation and reconciliation. In total 12 months is deducted.
    

Sentence Remarks

21. This is one of the most unsightly and horrible domestic violence that have come before this Court. The facts only reveals the toxic nature of it and how the victim was so fortunate to escape death. The sentence that I will pass must resonate a stern and bold message to the Accused that such conduct will only resulted in heavy sentence. Also to the public, for them to understand that those who intend or wish to embark such obnoxious track will suffer harsh punishment from the Court. The public at large must be protected from such inhuman and cruel behaviour and must also witness the rule of law at play in its highest capacity on such hideous crimes.
    
22. The victim is his wife and the Mother to their children. Having to shoulder the responsibilities of a Mother is challenging, some of her roles includes; giving birth to their children, gives her husband the strength to succeed, she nurtures her children to stay healthy and do well in their life and look after every matters at home, the list is of course interminable. It is not an overstatement to say that she is the backbone of her husband or the Accused. She is the closest companion to the Accused, this is but a huge gift the Almighty has given to him^[5], being a husband he should never have abused his wife, but to love her unconditionally.
    
23. In the case of R v Sila^[6] His Worship, Aulanga (PM) has articulately put it when explaining the significance of woman or wife, at Paragraph 7, p2 of the Sentence;

“...women in particular who are usually vulnerable and/or in a disadvantage position should be treated equally in our societies with respect and dignity. They should not be seen or treated by men as mere objects or properties to satisfy their grudges/anger, but should be seen and valued as previous souls equally important to the menfolk”.

24. There is surely no praise, recognition or commendation from physically abusing our wives or women. They instead should hold the right side of our hearts. It must be incumbent on us men to render total love, respect and care to them. That is why the marital attestation or vows states; through thick and thin, storm and bliss. The words are obviously to encapsulate whatever situation, good and bad times. The important thing to do is to be open minded and let loose on the superiority behaviour plus allow open discussion without anger or violence. Then only one can live to understand the real purpose of life and marriage.
    
25. There is no customary law, legal law or biblical law that supports domestic violence in our Country. All of us hold individual fundamental rights against act of cruelty and violence. Thus, it is now time that the Accused must understand these sentiments and make a constructive change for his own good and family’s wellbeing.
    
26. I am reminded that the victim and Accused had not cohabit since the second incident until to date, and that a Permanent Restraining Order is active against the Accused for those actions which were also subject of this case.
    

Sentence Orders

1. Upon considering what I have discussed earlier in this sentence I make the following orders:-
   • Count 1, Domestic violence – Physical Abuse contrary to section 4 (1) (a) as read with section 58 of the Family Protection Act 2014 – 2 years and 8 months’ imprisonment.
     
   • Count 2, Domestic violence – Physical Abuse contrary to section 4 (1) (a) as read with section 58 of the Family Protection Act 2014 – 18 months’ or 1 year and 6 months’ imprisonment.
     
2. For reason that both counts pertains to the same victim or his wife, I see it appropriate that any sentence must be served concurrently.
   
3. The Accused will serve 2 years and 8 months’ imprisonment.
   
4. Sentence to commence from date of first remand.
   
5. Right of appeal applies within 14 days.
   
6. Order accordingly.
   

THE COURT

.............................................

MR. LEONARD. B. CHITE

Principal Magistrate

Malaita District Magistrates Court

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^[1] [2019] SBMC 31
^[2] [2017] SBMC 58; Criminal case 148 of 2017
^[3] [2019] SBMC 33
^[4] [2005] 3 NZLR 372
^[5] https://www.quora.com/Why-do-we-need-a-wife At Paragraph 1, p1
^[6] Criminal Case No. 1032 of 2016