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Anuta v Regina [2011] SBHC 22; HCSI-CRC 456 of 2009 (2 May 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 456 of 2009

JOHN ANUTA

-v-

REGINA

Hearing : 6 April 2011
Judgement : 2 May 2011

A.Kesaka for the Appellant
T.B.Walenenea (Ms) and H. Kausimae for the Respondent

JUDGMENT

Mwanesalua J:

1. John Anuta "the Appellant" committed the offence of common assault on Tarcious James on 7 October 2009. He was convicted on a guilty plea and sentenced to a term of imprisonment for three months with one month suspended on 17 November 2009 by the Magistrates Court.
   
2. But the Appellant lodged an appeal against that sentence to this court on 27 November 2009, alleging that the magistrate erred in law in imposing a too severe sentence given the guilty plea, remorse, compensation and the circumstance surrounding the commission of the offence. He sought an order to reduce the sentence.
   
3. He stated in his sworn statement, filed on 27 November 2009, in support of his appeal that: he is aged 42 years, married with two children of his own attending primary school at present, and one adopted child attending Solomon Islands College of Higher Education who depend on him for financial support; he is currently employed by Guadalcanal Plains Palm Oil Ltd with a salary and housing for him and his family; he is the sole bread winner as his wife is unemployed; this was his first time to be in trouble with the law; he explained that he slapped the victim with his open palm because the victim had previously assaulted his own small boy; he admitted that his assault upon the victim was wrong and learned dearly from that offending.
   
4. From his plea in mitigation the magistrates court found the following points as mitigating factors: that the Appellant pleaded guilty at the first opportunity; he paid compensation of $100.00 to the parents of the victim and he was remorseful.
   
5. But, the magistrates court regarded the following as the aggravating features of his case: the Appellant was older and mature than the victim; the victim being only six years old; the assault was done in the presence of other children; who walked home from a long distance from school; at the time of the assault, no adult was around to help the victim; and that young children must be protected from such assault.
   
6. The Appellant appealed on one ground only, as set out in paragraph 2 above. That is to say, that the magistrate erred in law by handing down a severe punishment given the plea of guilty, remorse, compensation and the particular circumstances surrounding the commission of the offence.
   
7. He submits that the sentence imposed on him by the magistrates court was manifestly excessive. The local authority on the principle of manifestly excessive sentence is Boinago v Regina [1] where the Chief Justice explained, with reference to a number of authorities, the applicable Law as [at paragraph 8]:
   

".......the Appellant has to show that the sentence is manifestly excessive or manifestly inadequate, either because the judge has acted on wrong principle, or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence".

8. In a case from Australia, a number of factors have been identified in determining whether a sentence is manifestly excessive. These factors are the maximum penalty allowed by law, the experience of other sentences in similar cases, the seriousness of the offence and the personal circumstances of the offender [2].
   
9. While the Appellant appears to be complaining about specific errors against the magistrates court for placing less weight on his guilty plea, compensation and remorse; he has not pointed to any specific error, mistake, failure or inadequacy in relation to the consideration of those mitigating factors, which caused the sentence imposed on him to be manifestly excessive. In Glickman [3] the court observed:
   

"It is sometimes appropriate to speak of a "tariff" or "going rate" in the case of relatively simple crimes, but crimes of the kind which we are presently concerned vary so greatly in their details, vary so greatly in their heinousness, and vary so greatly in the circumstances of their commission that the development of a rate or range could only be achieved, if at all, after the close examination of a very large number of sentences indeed .....In the event the mere circumstance that a sentence appears to be above what is conceived to be the "going rate" does not mean that it is manifestly excessive. A sentence will only be held to be manifestly excessive if it is clearly outside the range of permissible sentences open to the sentencing judge and in the cases of the offences such as we presently concerned [theft and false entries in books of account], it is clear the width or the range is far greater than in the case of an offender charged with only a few counts of common offences".

10. The offence in this case carries a maximum custodial sentence of one year imprisonment. However, it various greatly in its commission, seriousness and punishment. The offence as committed by the appellant here merely involves a single slap with the open palm to the cheek of the victim. The facts show that the victim sustained no injury and did not cry. In the circumstances, a medical examination on the victim was not made. In that situation the production of a medical report may not serve any useful purpose except to confirm that the assault was not serious as shown by the sentence imposed in this case.
    
11. The Appellant cites the case of Sosopu v Regina [4] (Sosopi) as being similar to his case in terms of offending and sentence. He contends that the sentence imposed in his case was out of range with the sentence imposed in Sosopi. In this case the sentence imposed was three months imprisonments with one month suspend for twelve months. In Sosopi, the magistrates court imposed sentences of 12 months and 6 months imprisonment for going armed in public and common assault under sections 83 and 244 of the Penal Code. On appeal, those sentences were reduced to 3 months on each count. In this case, the magistrates court imposed the sentence set out in paragraph 1 above. It will be noted that the sentence imposed by the magistrate court in both cases for common assault are three months' imprisonment, except that one month was suspended in this case.
    
12. There was delay in this appeal. The appeal was filed on 27 November 2009. The delay was not attributable to the Appellant but the responsible officer at the Central Magistrates court by not providing the records of the magistrates court proceedings to the Registrar of the High Court, despite requests for them to be produced for purposes of this appeal. The hearing of the appeal set for 11 February 2011 and 28 February 2011 had to be adjourned because of the non-availability of the records before this court. The records were only made available to this court through a court order requiring the responsible magistrates court officials to produce the records. There was a delay of sixteen months and 9 days. The deterrent impact of a short sharp shock sentence which may be imposed in this case has been diminished by this delay. Further, the offence which the Appellant was charge is now stale.
    
13. The Appellant has not shown that the sentence imposed on him by the magistrates court was manifestly excessive. It is open to the magistrates court to impose the sentence which it imposed on him in view of the facts and his personal circumstances. This appeal is accordingly dismissed.
    

Orders of the court:

1. Appeal dismissed.
2. Quash order of three months sentence with one month suspend.
3. Substitute sentence of two months imprisonment.
4. Order that sentence of two months imprisonment be suspended for a period of twelve months from the date of this judgment.
   

THE COURT

^[1] SBHC 31; HCSI – CRC 80 of 2008 (23/5/2008)
^[2] Morse (1979) 23 S.A.S.R 98, 99 per king C.J.;Lilley 21/7/83.
^[3] 19/12/79; see also channon (1978) 20 ALR; 17-18 per Deane J; Holder [1988] 3 245, 254 per street C.J:
^[4] [2005] SBHC 112; HCSI – CAC 288 of 2003