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R v Ngoah [2021] SBHC 11; HCSI-CRC 455 of 2020 (5 March 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 455 of 2020

REGINA

V

JERRY MUNFORD NGOAH

Date of Hearing: 3 March 2021
Date of Decision: 5 March 2021

Mr. John Wesley Zoze for the Prosecution
Mr. Henry Kausimae with Mr. Oxley Limeniala for the Accused

SENTENCE

Bird PJ:

1. By information filed on the 22^nd September 2020, the defendant is charged with one count of attempted murder contrary to section 215 (a) of the Penal Code (cap26).
2. Upon being arraigned on the charge on the 1^st of March 2021, he had pleaded guilty. He was thereby convicted of the offence.
3. The offence of attempted murder is very serious and carries a maximum sentence of life imprisonment. It is more serious than the offence of manslaughter because of the presence of an intention to kill.
4. The facts of the case against you revealed that you and the victim are blood brothers. On the 3^rd May 2020 at Kwanagiru settlement at Mawa, West Kwaio you were with the victim. You then left to refill water at the well. At about 9-10 am, the victim scolded your sister Jayven Ufo’onia for not washing his clothes and chased her away. Jayven cried as a result.
5. Upon your return, your mother relayed to you what the victim did to your sister. You were angered, picked up a long bush knife and walked to the victim. Without any warning, you lifted the bush knife and swung it at the victim aiming for his neck.
6. The victim tried to defend himself by lifting his left hand and the knife landed on his left hand cutting his left wrist. You strike again and the knife landed on the victim’s left arm below his shoulder. The victim then got up to run away. In his attempt to escape, you strike again and cut him on his left hand above his wrist but below his shoulder. At the material time, the victim heard you said “you stop for kilim okta gele nomo”.
7. The victim jumped to the ground and ran for his life. He then realised that he had a large wound on his left wrist. It was hanging and only the skin was holding it. He then ran to the main road. You continue to pursue the victim with the knife and saying ‘you wait mi bae cutem you die.”
8. On the main road the victim fell down. Luckily for him, some by-standers came and intervened and restrained you. The victim was assisted and the wounded arm was tied with a piece of cloth to help stop the bleeding. When the victim regained consciousness, he was at Mawa Clinic. He was taken to Kilufi Hospital the same day and was treated for his injuries. A medical report prepared by Dr. Zimlon Bosowai confirmed there were multiple lacerations to his left upper limb with several tendons injuries and fractured carpal bones with deep laceration.
9. Prior to the offending, the victim used to vandalise the family properties and also bullied his siblings. On such occasions, you would say that you will kill the victim because of his attitude. You were later arrested and charged with this offending. The medical report dated 29^th May 2020 and the photograph of the own knife you used formed part of the facts in this case.
10. After having stated the facts, I am now required to weigh the aggravating as well as the mitigating features in order to come to an appropriate sentence for your offending.
11. In the case of R v O’ofania HC CRC No. 14 of 1975, the mid-range sentence for attempted murder between a husband and wife was 5-7 years imprisonment. The court of Appeal had approved the mid-range sentence in the case of Malefo v Regina [2013] SBCA 7, SICOA CRCAC No.34 of 2012.
12. In the case of Tariani v Regina [1988- 1989] SILR 7, Kapi J had stated that the maximum penalty of life imprisonment should be reserved for the most serious. This gives the court the leeway to consider the appropriate sentence according to the circumstances and merits of each case.
13. I am of the view that a mid-range sentence for attempted murder in Solomon Islands is 5-7 years imprisonment. I would therefore cite with approval the comments by Justice Kabui in the case R v Kennedy Bela [2004] SBHC 36, HC – CRC 100 of 2002.
14. With the above principle in mind. I would now discuss the aggravating features in your offending. I am told by Mr. Zoze for the prosecution that the use of the bush knife, a lethal weapon during commission of the offence is an aggravating feature. The knife is a lethal weapon and you could have foreseen that the use of it on another person would cause very serious injuries.
15. I am further informed that the victim was defenceless against the force of your attack. The victim did not expect the attack and was taken by surprise. Had it not been for the by-standers actions, you could have been killed the victim. I have also noted that you strike the victim three times with the knife. I have seen photograph of the knife used and I could tell that it is very sharp and long. It was obvious that you intended to kill the victim. You have attacked the victim more than once.
16. I have noted from the facts of your case that you and the victim are blood brothers. The victim is your elder brother. You could have sorted out the domestic issues amicably between you but you have allowed your emotions to overtake you.
17. The attack on the victim was brutal and the injuries sustained were very serious. If there was no assistance offered to the victim, he could have died on that fateful day.
18. It was also obvious that you attacked the victim at your family home. A family home is supposed to be a place where one should experience peace and tranquillity but you have turned it into a crime scene.
19. On your behalf, Mr Kausimae had submitted that you have pleaded guilty to the offending. You have admitted to the offending at first opportunity and you are willing to face the consequences of your action. You are remorseful over the whole incident.
20. You are a first offender with no previous convictions. I urge you to continue living a respectful and dignified life after your incarceration. Learn to solve domestic issues through dialogue.
21. I am told by your lawyer and also confirmed in the agreed facts that to some extent, the victim had contributed to the commission of the offending. I noted that the victim is a bully in the family and normally causes problem within the household. That is a wrong attitude from an elder brother. From the incident, the victim should also realise his fault and try to make amends to his attitude.
22. Your elder brother could have been terrorising your family. I must inform you that what you did to your brother had also terrorised members of your family. You need not turn to violence as the only solution to domestic issues. Try to get assistance from church workers and counsellors instead of turning to violence.
23. You are now 20 years old. You are a very young person. Because of your age, you have an opportunity to rehabilitate yourself and to live a more meaningful and beneficial life to both your family and your community at large.
24. You are a Form 2 leaver. Before your incarceration, you were working at your uncle’s coconut crushing mill. That is an enterprising endeavour and I urge you to continue to be involved in such endeavours.
25. After having taken note of the principles discussed in the cases cited above. I put your starting point at 5 years. For the aggravating features, I increase that sentence by 3 years.
26. For the mitigating features discussed above, I reduce that sentence by 2 years. You are hereby sentenced to 6 years imprisonment for the offence of attempted murder.

Orders of the court

1. The defendant is convicted on one count of attempted murder contrary to section 215 (a) of the Penal Code (cap 26).
2. The defendant is hereby sentenced to 6 years imprisonment.
3. I direct that the time spent in pre-trial custody to be deducted from the total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge