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Regina v Tuga - Sentence [2018] SBMC 9; Criminal Case 246 of 2016 (10 May 2018)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 246 of 2016

REGINA

V

SILVESTER TUTU TUGA AND JOSEPH FAEMANE

Closing submissions: April 9, 2018
Judgment: April 20, 2018
Sentencing submissions: May 7, 2018
Sentence: May 10, 2018

Messrs. L. Sandy and E. Konle for Prosecution
Mr. L. Waroka for Silvester Tutu Tuga
Ms. J. Namo for Joseph Faemane

SENTENCE

1. The two defendants, Silverster Tutu Tuga (Tuga) and Joseph Faemane (Faemane) were charged with grievous harm contrary to section 226 of the Penal Code. After the trial, the court found the defendant Silvester Tutu Tuga was convicted of grievous harm^[1] while the other defendant, Joseph Faemane, was convicted of common assault contrary to section 244 of the Penal Code.
   
2. The facts that have been proved during the trial for the two defendants are these. On the 16^th April 2016 at about 1:00am or shortly thereafter, the two defendants were part of the group of men who chased the victim, Tony Toka, from the Oba Store to the other side of the road, along the east bound lane at Ranadi, East Honiara.
   
3. It was then a fighting occurred between the victim and the defendants. The victim was overwhelmed by the defendants and as a result, he was assaulted and fell on the ground. Whilst he was lying supinely on the ground, Tuga, was seen stepping on his head several times. Fortunately, Tuga was restrained from further assaulting the victim by a person called Philip Iro.
   
4. In relation to Faemane, he admitted that he punched the victim only once during the course of the fight. Which part of the victim’s body he landed his hand is not clear.
   
5. The victim sustained injuries to lips, bruises to his cheek and has a swollen face. His lips were lacerated and stitched. He was hospitalised at the National Referral Hospital for 16 days due to severe injuries to his head/brain. He also suffered diffuse axonal and cognitive function disorder, all emanated from the assault. The magnitude of the assault on his head unfortunately rendered him mentally and physically incapacitated. At this stage, his mental condition is still recovering and is yet to get back to his pre-assault state.
   
6. The offence of grievous harm is a very serious offence as rightly pointed out by the prosecution. It carries a maximum penalty of 14 years imprisonment. It inevitably attracts a custodial sentence given that this offence reflects the nature and the extent of injuries suffered by victims of grievous harm. This principle was advocated in the case of R v Funifaka.^[2]
   
7. For common assault, it is a misdemeanour or a less serious offence. It has a maximum penalty of 1 year imprisonment. In convictions after trial, the court has a discretion whether or not to impose a custodial sentence.
   
8. From the facts, I take into account that first; both of them consumed alcohol and whilst they were under the influence of alcohol, they assaulted the victim. Second; each of the defendant assaulted the victim in the company of others. They took courage from each other when assaulting the lone victim. Third; for Tuga, he repeatedly stepped on the head of the victim despite he was already lying defenceless on the ground. Fourth; they attacked the victim in the early hours of the night, making it difficult for him to properly defend him in person because of the obvious low visibility. Finally, the head/brain injuries suffered by the victim is very serious. Following the assault, his cognitive function was affected and rendered him mentally and physically incapacitated. At present, his mental condition is still recovering.
   
9. In these circumstances, I am satisfied that a custodial sentence is the appropriate sentence for both defendants despite that they are relatively young persons.
   
10. For Tuga, how he assaulted the victim by repeatedly stepping on his head being a vulnerable part of a human body is senseless, very cruel, inhumane and one that has no regard to the victim’s life. This has irrevocably changed his life from being a full normal human being to now as a mentally handicapped person. For a period of more than two years after he was assaulted, he is still mentally recovering and yet to get back to his pre-assault state. I have no doubt in my mind his level of culpability is very serious and this must be reflected into the sentence to be imposed.
    
11. I understand that they were persons with relatively young age when they committed the offence. Tuga was 25 years and Faemane was 23 years at the time of the offending.
    
12. In the case of Attorney-General’s References Nos 59, 60 and 63 of 1998 (Goodwin and others)^[3], the court when highlighting the significance of deterrence for serious offence committed by young persons stated:
    

“When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be seriously punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra-judicially the punishment that the formal processes of law have not given. When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him. If punishment of the offender does little to heal the victim’s wounds, there can be little doubt that inadequate punishment adds insult to injury.”^[4]

13. I agree with the sentiments expressed in this case when it comes to sentencing of young offenders for offences that resulted in serious injuries.
    
14. I take into account the submissions made by counsels on their behalf. In their favour, I considered them as first time offenders. I take into account that Tuga is a married person with two children whilst Faemane is still single. I am further urged to consider that a customary compensation of $1000 and one shell money were paid to the victim’s family at the Naha Police Station shortly after the incident. I accept that both parties have entered into reconciliation and their relationship is now in good terms. I commend the efforts of the parties in successfully organising this. Customary reconciliation is recognised by the laws of our country in criminal cases and this is one of the beauties of our Solomon Island’s culture in conflict resolution. I give them full credit for those factors found in their favour.
    
15. I am mindful of the hardships their family members have had and will continue to face as a result of their incarceration but of the view that nowadays, people must think first before doing actions because quite often this may lead to other consequences such as committing a crime.
    
16. The two defendants were convicted after a trial. Therefore, no remorse is accorded to their favour.
    
17. I am urged to consider the sentence imposed in the case of Regina v Neemia Boberio.^[5] Whilst I noted the victim in the Beberio case suffered a fractured arm, there is no indication from that case whether that has rendered the victim to suffer any permanent disability as a result of the assault. That case is distinguishable from this case in that the serious suffered by the victim in the present case is far more serious resulting in his mental condition still recovering despite it was already two years ago after the assault. Also, that case was decided about 17 years ago and hence, care must be taken when referring to old cases that are irrelevant to the present circumstance of the country. With the passage of time, number of grievous harm offences reported and committed 17 years ago might be far lower compared to now.
    
18. I decide to sentence this case by its own facts.
    
19. For a conviction after trial for the grievous harm charge and in light of the maximum penalty provided for by the law, in my view, the starting point for this case should be 3 ½ years imprisonment. Having settled on that, I therefore increase this term to 4 years to reflect the aggravating factors. However, this 4 years is reduced by 6 months to reflect Tuga’s mitigating, personal, some delay and the customary reconciliation done to the victim.
    
20. I therefore sentenced the defendant, Silvester Tutu Tuga, to 3 ½ years imprisonment. Period spent in custody is to be deducted.
    
21. For Faemane’s case, I do understand that he had admitted he punched the victim only once. It is unclear where on the victim’s body he landed his hand.
    
22. With this uncertainly, it is difficult to ascertain his level of culpability to the injuries sustained by the victim. However, that does not excuse his criminal liability herein.
    
23. Sentences imposed for this offence following trial ranged from fine, good behaviour bond, suspended sentence to imprisonment not more than 1 year for a single charge.
    
24. In light of the admitted fact that he only punched the victim once and his conviction herein is after trial, I therefore sentenced him to 5 months imprisonment.
    
25. Having spent about 3 months and 26 days in custody, I order that the remainder of his term be fully suspended on the condition that he must be of good behaviour and must not commit any new offence for a period of 1 year as of date.
    
26. Consequent to this order, he is to be released from custody at the rising to the court to serve his suspension term forthwith.
    
27. Right of appeal applies.
    
28. Order accordingly.
    

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THE COURT
Augustine Aulanga – Principal Magistrate

^[1] Contrary to section 226 of the Penal Code
^[2] [1997] SBHC 31; HC-CRC 033 of 1996
^[3] [1999] 2 Cr. App R. (S.) 128
^[4] At p. 131
^[5] HCSI-CRC 24 of 1992