R v Sare [2020] SBMC 6; Criminal Case 75 of 2019 (27 February 2020)

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

Criminal Case No. 75 of 2019

REGINA

-v-

RAPHAEL SARE

Date of hearing: February, 25^th, 2020
Date of sentence: February 27^th, 2020

Mr. Geoffrey Angi for the Prosecution
Mr. Oxley Limeniala for the Accused

SENTENCE

Introduction

1. On 25^th of February 2020, the accused – Mr. Raphael Sare appeared and entered guilty plea to a count of Domestic Violence – Physical Abuse contrary to section 4 (1) (a) of the Family Protection Act as read with section 58 (1) of the said Act^[1]. I had entered conviction and remanded him in custody to appear today for his sentence, I now so do.
   

Agreed facts

2. On 28^th June 2019, at around 10:00am, the accused person returned home after drinking kwaso with other boys. When he got home, he went to the kitchen and saw a pot of rice was on the cooking stove. He got frustrated and threw the pot of rice away. The victim saw what happened and felt really afraid, so she took her 1 month old baby and escaped to Mr. Eiliat Hilly’s House, accused person’s uncle.
   
3. The accused looked for the victim and later learned that she was at his uncle’s house. The accused then went after her, while he was still approaching the victim, she quickly put the baby down in the House and ran out.
   
4. The accused saw the victim ran and he got angry, he got hold of an axe from another person who was with him and ran after the victim. The accused could not reach the victim so he threw the axe at her, which landed on her shoulder and caused a nasty wound.
   
5. The victim went and reported the matter to the Police whereupon the accused was arrested and charged for the offence of Domestic violence – physical abuse under the Family Protection Act.
   

Medical Report

6. On the 9^th July 2019, Dr. Zimlon T. Bosawai attended to the victim and made an assessment on the injury as follows: -

“An axe injury on the right posterior shoulder measure around 6 – 8 cm in length wound infected... She was traumatized”. (Emphasis mine)

Prescribed maximum punishment

7. Section 58 (1) of the Family Protection Act provides the maximum term of 30,000 penalty units or imprisonment of 3 years or both. This clearly demonstrates the intention behind the implementation of this Act that is to show no-tolerance and repugnance for domestic violence crimes happening within rural and urban communities.
   
8. I do recognized that cases are determined according to their own circumstances and facts. No two cases are exact, hence, Courts must never apply blanket approach when sentencing an offender.
   

Aggravating factors

9. From the agreed facts, I find the following to be aggravating for his case:
   1. Intoxicated with kwaso during the commission of the offence – Being under the influence of liquor whilst executing the offence aggravates it. He must therefore, accept the consequences which emerged from alcohol.
      
   2. Use of dangerous and lethal weapon – the accused used an axe to throw it on the victim’s shoulder which has caused an atrocious wound. An axe is undoubtedly lethal, it normally used to cut woods, trees and other strong objects. Obviously it would have a piercing effect if applied on a human body, such as in this case, a nasty wound.
      
   100. Unprovoked Act – This is a totally unprovoked act on the accused person, he has acted out of anger and alcohol on the innocent victim who was merely trying to cook to put food on the table for her family. The fact that she ran when she saw the accused cannot amount to provocation, but a demonstration of fear from being assaulted by the accused.
        
   4. Breach of trust & physically weaker person – the victim is the accused own dear wife, someone who he should respect, love and take care of, instead he breached this trust when he used an axe to assault her which caused wound on her shoulder. The victim is obviously a female and weaker compared to the accused, she would have been helpless even if he uses his fist or limbs to assault her, and a use of an axe is beyond fathom.
      
10. For this above reasons, I place the accused criminal culpability in between the mid and upper-range.
    

Case authorities

11. I must acknowledge the efforts made by Counsel Limeniala in providing case authorities to assist the Court in gauging the appropriate sentence to be imposed on the accused person.
    
12. 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.
    
13. In Regina v Ramai^[3] Mr. Ramai was charged with 2 counts of domestic violence. The faces are as follows. In 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.
    
14. In Regina v Ninamu^[4], the accused was charged with two counts. One count of consumption of liquor in parking vehicle and one count of Domestic violence. The accused pleaded guilty to the two charges and was sentenced to pay a $800 fine for count 1 in default 40 days imprisonment and 8 months’ sentence for 2 years for the Domestic Violence charge based on reason that there is a strong reconciliation letter and the child both appeared in court and that signify the importance of their father in their family. The facts raised in relation to Domestic violence case is that the accused punched the victim’s left side cheek and as a result caused swollen and slight laceration.
    
15. Having outlined the above cases which illustrates the sentencing tariffs applied in Courts within this Jurisdiction for offence Domestic Violence, It is in my view, that the appropriate starting point should be one that is upper than that of Ramai. For reason that an axe was used and it caused a nasty infected wound.
    

Starting point

16. Having taken into account the facts, aggravating factors, accused criminal culpability, I see it fit to pitch the starting point at 20 months’ imprisonment.
    

Mitigating factors

17. The following are gathered as mitigating factors in the accused person’s part:
    
    1. Early guilty plea and remorsefulness – It is apparent in Court that the accused person has accepted his faults and boldly accept it in his guilty plea and agreement to the facts. I agree that his plea alone demonstrates remorse on his part as well. A lot of expected expenses and use of resources have been reserved for highly contested matter because of the accused guilty plea.
       
    2. No previous conviction – The accused person is a first offender, he has a past clean record and has not come before this Court until the charge on which he is in Court today.
       
    100. Sole breadwinner – The accused person took care and custody of their two children after the wife left to Honiara and did not return. He was normally assisted by his parents to support the Children
         
    4. Reconciliation – There was a reconciliation settlement conducted between the accused person and his wife (victim) on 11^th of July 2019, by which a compensation of $500 was given to the victim.
       

Sentence remarks

Significance of Courtship/ Marriage

18. To explain the significance and importance of Courtship or marriage, I wish to re-echo the sentiments made in R v Ninamu^[5] which I concur equally relevant to accused case:

“Courtship is a very unique bond, it merges two different souls together and because of this, we are subject and susceptible to challenges in life, by trying to understand and accede to the other partner. Often times we may have thought that our individual view is correct and should form part of the final decision or conclusive and not accepting any views from the other, but this is incorrect, we accept to be with each other that is why that bond is fixed with two persons and not one, so be open minded and accept thorough discussions which potentially can lead to healthy marriage”.^[6]

“Of course, relationship or marriage so to speak, is subjected to many challenges in life, but we cannot always rely on violence and anger to settle issues or counter-challenges, that will only make it worst. The best way might be to accept such challenges and face it head on. For some of the challenges, it is humanly created, we crafted it our own. We create an issue when we behave improperly, going out with friends and alcohol when we have our family at home and expect to come back with open arms and food on the table, this is not correct – clearly the views of the other partner is stifled.”^[7]

19. The accused must learn to embody characteristics, values and qualities of a Husband and a Father, that is to love and care for his dear wife and Children. This is an exceptional opportunity and I would like to think that it is a gift from the Lord, to allow him this path. Therefore, he must not take it for granted, instead endeavor to fulfil the best results possible for him and his family.
    

Kwaso as an illegal substance

20. I must strongly remind him that kwaso is an illegal substance, and although good number of young people want to consume it, it is not an approved liquor by health authorities, meaning its contents can be damaging to human body, thus affecting organs of those who consumes it. Also, it does not have an alcohol percentage to rate its power that is why it clouded his judgment to wound his own dear wife with an axe, this is a clear result of kwaso. These sentiments are given so he can consider putting a complete stop to it. The choice rest entirely on him, but he needs to do it for his wife, Children and his own sake.
    

Attitude of wife beating during marriage

21. There is no pride in wife beating, a common saying goes “You’re no longer a man when you put hands on your wife or female”. In fact, violence will never solve any dispute or family issue, it will only make it worse. These sentiments are not made to bring him down, rather to help him hate the offence of domestic violence and learn to change from it.
    
22. Human beings are not perfect, all of us makes mistakes, we do things we sometimes regret and wish to turn back time, but past is past, what is ahead should be the overarching goal. He is a young person, as such, needs to take a bold stand to learn from his mistakes, so that when he returns from custody he can be the best Dad possible to his lovely children. They will always cherish him for life if he do this for them.
    

Reconciliation letter/ acceptance by the victim to re-cohabit

23. I acknowledge that the letter submitted per reconciliation had made it clear that his wife had decided to forgive him, however, she has left and did not return which as a result he had to support the two children with assistance of his parents. This is an indication that she has yet to consider whether or not to return to him. Hence, it is crucial on his part to understand this sign and make a change to prove to her that he is better than this, and can make things right again.
    

Sentencing consideration

24. I give credit for his early guilty plea and reduce 5 months. I also deduct 2 months to consider his past clean criminal history and youthfulness. I further deduct 3 months to consider reconciliation and the accused being a sole breadwinner.
    
25. Having stood back and consider the length of imprisonment balancing with the two innocent children at home without their Father and Mother, and that they will now be taken care by their grandparents, I see it fitting to give credit to it and further deduct 3 months accordingly to avoid any crushing ripple effects on these innocent children.
    
26. This sentence must resonate and reverberate the sentencing theme of Deterrence, Rehabilitation, and Reintegration. The general public and Husbands must now be warned of such practices, that should they come down this path, they will expect the same or heavier penalty.

Sentence orders

1. I hereby sentence the accused person to – 7 months’ imprisonment.
2. Sentence to commence from date of first remand, hence, pre-detention period must be considered.
3. 14 days right of appeal applies.
4. Order accordingly.
   

THE COURT

................................................
MR. LEONARD. B. CHITE
Principal Magistrate
Malaita District Magistrates Court

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^[1] Family Protection Act 2014
^[2] [2017] SBMC 58; Criminal case 148 of 2017
^[3] [2019] SBMC 33
^[4] [2019] SBMC 31

^[5] [2019] SBMC 31
^[6] At paragraph 5
^[7] At paragraph 6