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R v Ulavania [2024] SBHC 47; HCSI-CRC 392 of 2023 (25 April 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 392 of 2023

REX

V

HARRISON ULAVANIA

Date of Hearing: 12 April 2024
Date of Sentence: 25 April 2024

Counsel Mr Kelesi (DPP) for the Crown
Counsel Miss Palmer for the Defendant

Keniapisia; PJ

SENTENCE

Introduction and gravity of offending

1. On the 5/4/2024, I convicted the prisoner on a charge of inflicting grievous bodily harm with intent contrary to Section 224 (a) of the Penal Code Act (Cap 26). I found that the accused recklessly caused the victim to suffer from life threatening injuries. Defendant was reckless in pushing the victim over a deadly cliff, in the Gold ridge area. Gold ridge area is known for rugged and mountainous landscapes. I say in the guilty verdict, it was lucky that the victim/complainant did not die from the risky cliff fall. I also noted that the victim suffered from serious bodily injuries. Furthermore, I noted in particular fractured thigh-bone and fractured knee-cap. I held the defendant responsible for the mishap and near-death fall from which the victim suffered serious bodily injuries.
2. On the serious bodily injuries, I noted that the victim is due back in the hospital in June 2024 for a review on the metal put inside his fractured thigh-bone. Then the doctor will attend to or fix/treat the fractured knee-cap. I saw the victim in Court. He was walking imbalanced (limping) due to the metal inserted inside his thigh-bone (left leg). The file is closed quickly (May 2023 to April 2024). The victim is yet to fully recover. He is still receiving medical treatment. In terms of any permanent injury that will affect the victim like disability, I do not know at this stage. I cannot rule out any permanent impacts from the cliff-fall injuries. But what I can say is the victim suffered from 2 main serious injuries to his body system (fractured thigh-bone and fractured knee-cap).
3. This is a serious crime because the maximum penalty is life imprisonment – Section 224 (a) of the Penal Code Act (Cap 26). Court has power to impose a lesser sentence term. I heard the evidence. I saw the victim. I know the gravity (the extent of seriousness). That is why I say in the verdict this is a life-threatening and near-death fall. The victim could have died from the fall. It was just lucky that he survived the fall and only nursing serious bodily injuries. He was at the verge of death. If he had died, the accused would have been charged for manslaughter or murder. The circumstances of this offending will fall into the worst class of case and hence attract the maximum sentence. I am still uncertain about the permanent impacts of the injuries. The victim is still undergoing medical treatment. However, the near-death fall and serious bodily injury facts of this offending, still qualify this case as a worst class.

Start point sentence

4. The prosecutor proposed a start point sentence for grievous bodily harm is 5 years, where intoxication was involved as in this case (Regina v Paewa [2016]; High Court). Defence counsel has no real opposition although counsel did not clearly say 5 years. But a case law defence counsel relied on has a start point sentence of 5 years, though the case was on manslaughter.^[1] Court disagrees with counsel, with the greatest respect. Starting point sentence should be 6 years according to Regina v Kada & Others, Court of Appeal 2008, at paragraph 24, referring back to an earlier 2004 decision of the Court of Appeal in R v Dani & Aidaiana, Court of Appeal 2004. I will start at 6 years.

Aggravating factors

5. Then I will lift the start point sentence upwards due to the presence of serious aggravating factors. The serious aggravating factors justifying an uplift are: -
   • (i) Serious bodily injuries – Fractured thigh-bone and fractured knee-cap. These are life threatening injuries. And the victim’s recovery is far from over. He will go back to the doctor for further review on the treatment done to the fractured thigh-bone. And then the doctor will make the next diagnosis and devise a treatment plan to fix the fractured knee-cap. I say in the verdict, this is a life-threatening injury. And the victim could have died or worsen to other complications, had there been slow or delayed medical intervention.
   • (ii) Time spent in the hospital – I say in the verdict that the victim stayed in the hospital (here in Honiara) where he received the much-needed lifesaving treatment to heal the serious bodily injuries that he sustained, for the duration of 3 months. I say in the verdict that this is a very long time to spend in a hospital. The hospital is the last place anyone would want to stay even for a day. This is how serious the bodily injuries were.
   • (iii) Tremendous pain and suffering – The victim went through a lot of pain and suffering. Dr Patrick Nasihunu Houasia testified that after seeing the victim at the emergency department, he could not treat the victim straight away. Doctor had to put the victim on pain relief medication for 5 days. Victim was suffering with tremendous pain in his body due to the fractured thigh-bone and fractured knew-cap and other injuries, he was carrying. At the time of trial, I observed in the witness box that the victim was still limping and feeling pain in his left leg when walking.
   • (iv) Rehabilitation period – It will take how many more months or years for the victim to rehabilitate and recover? I do not know, because the victim is still undergoing close health care and treatment with a review due back in June 2024.
   • (v) Defendant was intoxicated at time of offending – Far too common we see in Solomon Islands villages, that when young men get drunk with alcohol, they gain confidence and courage. And they tend to cause nuisance. Courts must get hard on people who get drunk and cause problems. This case is no exception. Defendant got drunk the night before the day of the incident. And then he engaged in 6 absurd actions, the sixth absurd action, almost took the victim’s life away. I say in the verdict that, the defendant was out about that day, looking for trouble fuelled by alcohol and anger.
6. For all of the above 5 aggravating factors combined, I will inflate the start point sentence by 15 years (3 years for each aggravating factor). Inflation due to aggravating factors must be in years and not merely in weeks and months (Bade, Court of Appeal 2023). That brings the total head sentence to 21 years before mitigation.

Mitigating factors

7. Then I will reduce the head sentence due to mitigating factors. The mitigating factors are firstly first-time offender with no previous conviction. I will deduct 4 years. Defence submit that no weapon was used as a mitigating factor. Court disagree because the defendant went out armed with a knife that was only taken away from him by a woman who threw a skirt on him. Accused had intent to cause trouble with the knife. Defence counsel also submitted that I should consider defendant’s personal circumstances. I will do that and allow another reduction rather reluctantly. Defendant’s youthfulness in addition to personal circumstances will attract 4 years reduction.
8. This is a case where the aggravating factors outweighs the mitigating factors. Counsel cited precedent cases where sentences imposed range from 4 years to 12 years for similar offending or for manslaughter charges. Each case is different. Court is not using a one formular fits all situations, though there are certain guidelines. In my mind 4 years sentence or 7 years sentence, for an offence that has a maximum sentence of life imprisonment, calls for a lot of rethinking. Where someone almost died as in this case, is nursing serious bodily injuries and still receiving medical treatment after 1 year (gravity), it must attract a higher sentence term in view of the maximum available. What is 4 years sentence when the maximum penalty is life imprisonment? What is 7 years sentence when the maximum penalty is life imprisonment? Anything between 12 – 20 years sentence term will make sense when the maximum penalty is life imprisonment and in view of the gravity offending at hand. Then we can truly say that a crime is serious because it has a statutory penalty of life imprisonment as the maximum.

Conclusion and Orders

9. The final total head sentence I will impose is 13 years imprisonment. Pre-trial custody entitlement is allowed for reduction according to records of the Correctional facility at Rove. I want the defendant and others to know that no one should have the liberty to take away another’s life or attempt to. And causing serious bodily harm to anyone as has happened in this case is akin to taking someone’s life away. In here I found that the victim was lucky that he survived the serious injuries from the cliff fall. He was lucky that he resides close to the hospital where there are doctors and facilities to ensure he was well-looked after and attended to quickly before other complications could arise. Doctor Patrick Nasihunu Houasia confirmed in his evidence that other complications could have risen if there was delay in medical intervention.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

^[1] R v Hitu [2023] SBHC 50, HCSI – CRC 621 OF 2020 (26 June 2023).