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R v Inoke [2020] SBMC 23; Criminal Case 64 of 2020 (27 May 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 64 of 2020

In the Criminal Jurisdiction

BEWTEEN: REGINA

AND: INOKE AND OTHERS

Before: Emily Z Vagibule

Prosecution: Mr Iete Tebakota

Defence: Mr Paul None

Date of submissions: 25^th of May 2020

Date of ruling: 27^th of May 2020

RULING

1. Before the court is an application filed on behalf of the Defendant, Ms Naomi Inoke, by her legal representative, Counsel None. The application sought is, to have the whole proceeding terminated pursuant to section 35 of the Magistrates Court Act. Further to that, is for the court to consider invoking section 35 of the Penal Code which will result in having the Defendant discharged either conditionally or absolutely without conviction.
2. In support of their application, Defence Counsel had tendered a copy of the Defendant’s affidavit, regarding the reconciliation that took place on the 19^th of March 2020, between the Complainant and her.
3. Section 35 (1)of the Magistrates Court Act states:

In criminal cases a Magistrate's Court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any offence of a personal or private nature not amounting to felony and not aggravated in degree, on terms of payment of compensation or other terms approved by such Court, and may thereupon order the proceedings to be stayed or terminated^[1].

4. Section 35 of the Penal Code on the other hand states:

Where, in any trial, the court thinks that the charge against the accused person is proved but is of opinion that, having regard to the character, antecedents, health or mental condition of the accused. or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge either absolutely or conditionally^[2].

5. In his submission, Mr None, said, that a reconciliation had already been done between the Complainant and the Defendant. This was confirmed in Ms Inoke’s affidavit. During the reconciliation, None states that one Tafuliae (Shell money) along with the sum of $100.00, was given to the Complainant. Reference was also made to the case of Regina v Paul Rakaimua, where the court stated that: Compensation is part of the sanctions used in custom among the people of this country to settle grievances and to make peace. It is also a form of punishment for committing wrongs against a person or community or tribe. It is therefore appropriate in cases such as the present that some form of reparation is made^[3].
6. Defence believes that since a reconciliation has already been done, any further punishment on the Defendant, might stir up disagreement between the parties again. This argument was opposed by Prosecution on the basis that, if the court is to rule in favour of this argument, the general public would be of the impression that, should they be caught up in a similar situation, a compensation would suffice. Prosecutions insist that the Defendant is not entitled to advance this line of argument.
7. For the court to consider section 35 of the Magistrate’s Court Act, it must consider whether or not what had happened is aggravated in degree. This in my view would include:
   • (a) Whether or not the Defendant was drunk at the time of the incident?
   • (b) Whether or not a weapon was used?
   • (c) Whether or not the Complainant sustain serious injuries to his or her body, as a result of the Defendant’s actions?

If the Crown can prove, that there was indeed an aggravated degree, then section 35 of the Magistrates Court Act cannot be considered.

8. From the facts at hand, the incident stemmed out from what was described as the Complainant’s gut feeling that something was going on between her husband and the Defendant. The Defendant later confronted the Complainant about the issue and eventually a fight broke out. Facts shows that the Defendant assaulted the Complainant by way of slapping and throwing hands at her. I do not know whether, throwing hands, was used in the agreed facts to mean punching, hence I will leave it as it is.
9. At this stage, I wish to refer to the case of Regina v Asuana, where the court held:

Custom compensation must be considered by the Court in assessing sentence as a mitigating factor if it goes to show genuine contrition. The scale of payment may give some indication of the degree of contrition. The court must avoid attaching such weight to it that it appears to be a means of buying oneself out of trouble^[4].

This is a case, which in comparison to what had happened in this present case, is far more serious. However, it holds the significant view that the court should be guided by when dealing with custom compensation, regardless of whether an offending is aggravated in degree or not.

10. With the facts before me, there is no hard evidence to suggest that there was an aggravated degree in the way in which the offence was committed, however, I find that the circumstances surrounding this offending cannot be deemed as trivial or extenuating in nature. I say this on the basis, that it was the Defendant who confronted the Complainant for the purposes of interrogating her.
11. Section 35 of the Penal Code, is very clear in this regard, that a court can only discharge a person once it is of the view that the nature of the offending is trivial and that the circumstance involved were extenuating. The fact that the Defendant herself had confronted the Complainant to interrogate her and later ended up slapping and throwing hands at her, is somewhat beyond trivial.
12. Mr None had also tendered his mitigation submissions, which tells of how the Defendant is the only bread winner for her family since both her parents have passed on. The court was also asked to consider the Defendant’s guilty plea, the fact that she is a first time offender, the fact that she had shown genuine remorse and the fact that a reconciliation had already taken place.
13. With the arguments advanced by both parties, I have paid due consideration to the wordings of the provisions which were referred to, and the agreed facts relied upon.
14. Thus, with the evidence before me, I am not inclined to accept Defence’s application in light of section 35 of the Penal Code, however, I will consider the argument premised on section 35 of the Magistrate’s Court Act, as follows:

ORDER

(i) That the application to terminate this proceeding pursuant to section 35 of the Magistrates Court Act is granted on the condition that the Defendant, Ms Naomi Inoke, is to enter into a bound over period for a period of one year, in the sum of $1000.00.
(ii) Right of appeal applies to any party that is aggrieved.

Dated this 27^th day of May 2020.

_____________

THE COURT

EMILY Z VAGIBULE-MAGISTRATE

^[1] Section 35 (1) of the Magistrate’s Court Act

^[2] Section 35 of the Penal Code
^[3] (Unrep. Criminal Case No. 24 of 1995)

^[4] [1990] SILR 201 (12 October 1990)