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Republic v Waidabu [2020] NRSC 24; Criminal Case 54 of 2019 (19 June 2020)

IN THE SUPREME COURT OF NAURU

AT YAREN
CRIMINAL JURISDICTION Criminal Case No.54 of 2019

BETWEEN

Republic

V

Buddy Waidabu


Before: Rapi Vaai, J

APPEARANCES:
^{Counsel for the Prosecution: S. Serukai
Counsel for the Defendant –Waidabu: E. Soriano}

^{Date of Sentence 19th June 2020}

Case may be cited as: Republic v Buddy Waidabu

SENTENCE

1. The defendant was found guilty after a defended hearing of the crime of intentionally causing serious bodily harm to one Kash Dongobir a 28 year old male.
   
2. For his offending the defendant is liable to a maximum term of imprisonment term of 20 years.
   

The defendant

3. Buddy Waidabu the defendant is twenty years of age, currently employed as a Security officer, is the third eldest child of three brothers and one sister. Together with his de-facto wife and a one year old daughter they all live together with their parents at the Location compound.
   
4. The defendant and his father are the sole bread winners for the family, but the money from their salaries is usually not sufficient which required the defendant to go fishing for extra provisions and sustenance. He is also the care giver for his older brother who has difficulty in mobilisation.
   
5. He is described in the probation report as a quiet young man who recently involved himself with the Assembly of God youth group programme like open air activities. The only testimonials attached to his probation report were from his employer and his de-facto wife. His counsel at the suggestion of the court produced a written testimonial from Bishop Thoma of the Shalosh Pentecostal Church.
   

The victim

6. At the age of twenty eight the victim was eight years older than his assailant. He had been drinking for about seven hours before going for a joy ride and joined the crowd at Location compound where he was assaulted.
   
7. Regardless of his state of intoxication, there was no excuse or justification for the beating he endured and the resulting injuries he suffered. It is common ground the injuries were serious. He was hospitalised for weeks.
   
8. According to the victim impact report the head injuries he suffered has had a significant negative effect on his work life, social life, personal comfort and bodily functions. He is handicapped in the sense he cannot play sport as he normally did and he cannot work as he used to. He said he feels demoralised.
   

Submissions by the Prosecution.

9. The prosecution emphasised that the victim was defenceless and taken by surprise when punched on the chin; he was hospitalised for about four weeks and the injuries significantly impacted his lifestyle as outlined in the victim impact report.
   
10. It was submitted that being married or a bread winner offers very little in mitigation for the defendant. For his very serious offending the defendant must receive a lengthy custodial sentence.
    

Submissions by the Defendant.

11. Counsel for the defendant endeavoured to persuade the court that a custodial sentence is not warranted given the circumstances of the offending; the personal circumstances of the victim; the injuries sustained and recovery rate from those injuries; the effect of a custodial sentence on the defendant and his family; as well as the overall purpose and requirements of sections 277 to 280 of the Crimes Act 2016.
    
12. It was emphasised that the offending was not premeditated; both the victim and defendant were under the influence of liquor, the defendant was of a relatively young age with family obligations, he is not a danger to society, he is transformed and remorseful and his culpability in the offending is at the lower end of the scale.
    

Discussion

13. Section 277 of the Crimes Act 2016 sets out the types of sentences which the Court can impose; section 278 outlines the purposes of sentences; section 279 provides the matters which should be considered when evaluating the appropriate sentence.
    
14. The Court notes with concern paragraph 4.1 of defence counsel’s submissions which states;

4.1. “The accused was 19 years of age at the time of the offending. He was younger and socially active having grown up in a small community where it does not take much for a child or youth to witness on a regular basis, drinking binge and violence in the open.”

It is sad, but nonetheless the court cannot question the accuracy of the submission. This offending took place after midnight at an abandoned spot during a drinking session which gathered momentum just before midnight. Undoubtedly there were others like the defendant, who were young and others who had family obligations, who were at the drinking gathering.

15. Deterrence, denunciation, recognition of the harm done, and accountability are some of the purposes of sentencing which the court should consider. The most effective and common sentence to give legal effect to the above factors is imprisonment. Drinking binges and associated violence is a social problem which should be addressed appropriately if our young people are to be protected from themselves and from getting on the wrong side of the law. Obviously the family plays the vital role. Failure and neglect within the family environment creates significant problem for society.
    
16. So if the family suffers as a consequence of the offending by one of its young member, the family should accept and acknowledge its failure. Every offending has a victim which includes the offender’s family and loved ones.
    
17. The worst aggravating feature of the offending was that the punch and the kicks were aimed at the face and head of the victim. As a consequence the victim suffered severe injuries to the head which rendered him unconscious and resulting in long lasting injuries to his health and personal comfort.
    
18. Whatever sentence the Court will impose cannot restore the quality of life which the victim enjoyed and was entitled to before the offending.
    
19. Section 280 Crimes Act 2016 requires the court to impose imprisonment sentence if the defendant;
    • (a) has shown a tendency to violence,
    • (b) is likely to commit serious offence if he is not imprisoned,
    • (c) was previously convicted of an offence punishable by imprisonment,
    • (d) if any other sentence is inappropriate having regard to the gravity or circumstances of the offending; and
    • (e) If the protection of the community requires it.

An imprisonment sentence should also be imposed if it is necessary to give proper effect to sections 278 and 279.

20. The court accepts that the offence was not premeditated. It was impulsive, an immediate reaction or spur of the moment reaction to an unexpected event which eventuated when the drunken victim uninvitingly joined the drunken defendant and his drunken friends at a drinking gathering.
    
21. No weapon was used; the assault which involved one punch and more than one kick ceased as soon as others intervened.
    
22. Resorting to violence when one is angry must be deterred. The appropriate sentence should be for the purpose of deterring the defendant and others of like-minded; it should also reflect the harm done, to denounce the defendant’s offending and to make him accountable.
    
23. At the same time, given his age, his obvious remorse as well as his attempts to transform, the court should exercise caution, to consider alternative methods of deterrence and at the same time assist this defendant navigate useful life. No journey is risk free. He will be supervised during his journey.
    
24. To send him to prison now will undoubtedly do more harm than good. His church bishop is willing to assist. Buddy knows the consequences if he abuses this opportunity.
    
25. He must now contemplate that the victim is entitled to and may file a civil suit to claim damages for the injuries, pain and loss of amenities suffered as a consequence of the assault.
    

Sentence

(a) The defendant is convicted and placed on probation for two years on the following conditions;

• (i) He will live, reside, and work at places as approved by the probation service.
• (ii) He will report to the Chief Probation officer within 24 hours from now.
• (iii) He will attend to any anger management, programme or similar one as directed by the Probation Service.
• (iv) He will continue to attend the church outreach and open air activities during his probationary term.
• (v) He shall refrain from consuming alcohol during his term of probation.
  

_____________________
Judge Rapi Vaai