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Regina v Puluhenue [2009] SBHC 18; HCSI-CRC 307 of 2008 (22 May 2009)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 307 of 2008

Regina

v

Steven Sipolo Puluhenue

High Court of Solomon Islands
(Palmer CJ.)

Hearing: 18th May 2009
Sentence: 22nd May 2009

Ms. R. Townsend for the Crown
Mr. D. Hou for the Defendant

Palmer CJ.:

1. You pleaded guilty to two counts of attempted murder on 11th May 2009. I heard submissions for mitigation on 18th May and adjourned for sentence for today.
   
2. I give credit for a guilty plea in those two counts. This however must be balanced with the fact that the evidence against you in this case is overwhelming and so would have made little difference even if a not guilty plea had been entered instead. In other words you had little alternative but to enter a guilty plea. The facts of the case showed that the offence occurred in broad daylight and in front of eye witnesses. You did not seek to conceal your actions.
   
3. I note you admitted the offence and your intentions were clear from the beginning which is consistent with taking responsibility for your actions.
   
4. You are a young person; you were twenty three years old at the time of commission of the offences. You had been engaged in custom to Mitilyn Lolo ("Mitilyn") and had been living together in a de facto relationship for sometime, and as a consequence you had a child born to you.
   
5. Of late however, your relationship had gone through troubled waters; you noticed a decline in Mitilyn’s interest and enthusiasm towards your relationship.
   
6. Prior to the incident which occurred on the morning of 26 April 2008, you had an argument with Mitilyn and so you moved out and stayed at your sister’s place.
   
7. On the evening of 25 April 2008, you observed Mitilyn drinking with the other victim, Charles Firigeni ("Charles") and another man outside her house. Naturally you felt bad and upset about that but I do not think you would have been surprised about this because her actions seem to reflect your deteriorating relationship and that her interests appear to be somewhere else or with someone else.
   
8. Mitilyn continued drinking with those two men or boys throughout the night until the next morning. You obviously felt very displeased and upset about this. You had spent a sleepless night and the next morning when you looked across to the hill next to her house, you saw Mitilyn still with those two men. They had been drinking right through the night and had spent all that time together.
   
9. Naturally you were incensed about this and all that anger and frustration exploded into rage and you picked up an axe nearby, walked up to the hill and attacked Mitilyn with it. You were intent on chopping off her head with that axe. Most fortunately for her she bent her head at that moment and the axe connected partially with her neck. When Charles sought to come to her defence, you turned on him and cut him with the axe on his forehead. You then turned around to attack Mitilyn again but someone distracted you and you walked off.
   
10. I note you were provoked by what Mitilyn did but that does not justify the use of physical violence which you applied. You had no right to attack Mitilyn in the circumstances. While Mitilyn’s actions may have been offensive and wrong according to your custom, you must understand that you are not governed by your custom in Solomon Islands; it is the law and where custom is contrary to the law the law must prevail. The law does not permit you in any circumstances whatsoever to use physical violence on Mitilyn even where she has breached your custom; you settle it in other lawful ways other than using physical violence. People who do not follow the law will face the consequences of the law.
    
11. I have been referred to a number of cases in this jurisdiction for comparison purposes. In Tariani v. Reginam[1], a sentence of life imprisonment for attempted murder was upheld by the Court of Appeal. That case however can be distinguished in its facts to your case. The facts in that case were much more serious. There was an unprovoked attack on a defenceless woman; there was no previous relationship or connection with the victim of the attack. I note in your case, you regarded Mitilyn as your de facto wife and felt she was accountable to you in her conduct. In Tariani’s case, the victim was an innocent passerby walking along on the road with her daughter when attacked by Tariani with a knife. That case also involved an inmate who was cutting grass at a drain at Kira Kira at the time of the attack. There was also previous history of paranoid schizophrenia and the risk of re-offending could not be excluded. In your case, you did not exhibit any previous abnormality of mind and that the incident was directly related to your relationship with Mitilyn.
    
12. In Tariani the Court of Appeal adopted the principles set out in Hodgson[2] when dismissing the appeal against the imposition of a life sentence for attempted murder in the circumstances of that case. It held that the following factors should be weighed carefully before imposing the maximum sentence. These included
    
    • (i) the fact that the offence is grave enough to warrant a long sentence;
    • (ii) that there is evidence of unstable character and a likelihood of re-offending; and
    • (iii) the nature of the injuries inflicted and could be inflicted.
      
13. Another case referred to was the case of Regina v. Bela[3]. In that case a sentence of three years was imposed for attempted murder. There was an argument between the parties and a gun was used in the incident. His Lordship Kabui, J. reduced the sentence to one of three years on the grounds of unreasonable delay of five years and eight months. He did point out however citing the case of R. v. David O’ofania[4] and the learned Author, D.A. Smith in his book "Principles of Sentencing"[5] that the range of recorded sentences for attempted murder between husband and wife relationships fell within 5-7 years. After pointing out that O’ofania’ case fell in the midrange of six years, he distinguished Bela’s case for the excessive delay and imposed a sentence of three years. In your case your lawyer has submitted that the court should take into account the delay of over a year. While I appreciate this case could have been concluded within a much shorter time frame, it must be borne in mind that the availability of judges in the High Court and lawyers meant it could not be fixed for any earlier date. It has to be borne in mind that the case was actually listed for trial rather than a plea. If a guilty plea was indicated at an earlier date, this case would have been listed for arraignment much earlier. The delay factor however will be taken into account in sentence and so no prejudice would have been caused.
    
14. The case of R. v. David O’ofania[6] involved a defendant who was the husband of the victim but had separated from each other for some time. He used a bayonet to stab her repeatedly with and only desisted when it was clear to him that he had been seen by a neighbour drawn by the screams of the victim. The learned Chief Justice imposed a sentence of six years.
    
15. A number of cases[7] from other jurisdictions have also been brought to my attention by learned Counsel for Prosecution, Ms. Townsend. I thank her for this assistance. In The State v. Sharma (ibid), a sentence of 11 years was imposed by the Fiji High Court. The defendant used a knife to attack the three victims for non payment of rent and inflicted serious injuries. In The State v. Samy (ibid), a sentence of nine years was imposed for an attack by the defendant on his 67 year old mother and two 19 year old nephews. He used a chopper to attack them with. In The State v. Waragu (ibid), a case from Papua New Guinea, a sentence of 25 years was imposed for an attack by a group of people on the victim and two others who died as a result. It was a vicious and merciless attack on innocent people by a group of men using a bush knife. The State v. Ute (ibid) was also a case from Papua New Guinea where a sentence of 25 years was also imposed for attempted murder by a Corrections Officer. The weapon used was a gun and fired at point blank range but miraculously the shot missed the victim by a fraction of an inch. There was no physical injury sustained. The Corrections Officer had previously used the gun to threaten other people with.
    
16. In this case the offence of attempted murder was complete when you struck Mitilyn and Charles with the axe. I note there was no premeditation or planning beforehand. The attack occurred when you realised that Mitilyn had been out drinking the whole night with the other victim and another man. This did not come as a surprise to you however because you had actually seen them drinking earlier on in the evening.
    
17. On the other hand, you only desisted from attacking Mitilyn a second time because you were distracted by someone else and not voluntarily.
    
18. I note and take into account your age and that you are a first offender. I note some form of compensation has been paid and take that into account. Mitilyn appears to have made good recovery while Charles retains scars from that attack with some form of paralysis on one side of his body. I note there were two victims in this case, not one. You could have walked away when Charles came to Mitilyn’s defence instead of attacking him. The injuries sustained were serious.
    
19. This type of serious violent behaviour cannot be condoned and encouraged even in the context of a de facto relationship. Those who commit serious violence through the use of a weapon, such as an axe in your case or a knife or other sharp instrument or object to address grievances or offences whether in custom or not must expect a custodial sentence.
    
20. Taking all relevant factors into account in this case, I convict you on both counts and impose a sentence of six years on each count. While the offences are separate offences, they were part of the same incident and occurred at the same time, and taking into account the totality principle in this case, I am satisfied they are to be made concurrent to each other, you will be required therefore to serve only six years; the period spent in custody to be taken into account. You have a right of appeal against sentence if aggrieved by the sentence; you must do so within thirty days from today.
    

Orders of the Court:

1. Enter conviction on both counts.
2. Impose sentence of six years on each count, to be made concurrent, period spent in custody to be taken into account.
   

The Court.

^[1] [1988-1989] SILR 7
^[2] (1967) 52 Cr. App. R. 113
^[3] [2004] SBHC 36; HC-CRC 100 of 2002, 4^th May 2004 per Kabui J.
^[4] HC-CRC No. 14 of 1975
^[5] 2^nd Edition, reprint 1982 at pages 91-92
^[6] HC-CRC No. 14 of 1975
^[7] State v. Sharma [2009] FJHC 62; HAC O45.2008 (4 March 2009) per Singh, J.; State v. Samy [2007] FJHC 78; HAC 029S.06 (29 November 2007) per Shameem, J.; State v. Waragu [2007] PGNC 134; N3265 (23 November 2007) per Lenalia, J.; State v. Ute [2004] PGNC 215; N2550 (29 April 2004) per Kandakasi, J.