Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

  Download original PDF

Regina v Funubana [2004] SBHC 47; HC-CRC 297 of 2003 (29 June 2004)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No 297 of 2003

REGINA

-v-

EDDIE FUNUBANA, WILSON IRO, (FRED FALE),
PETER DANI, SENI FUGUOMEA, JOE AIDIANA.

Brown PJ

Date of Hearing: 14 April 2004
Date of Judgment: 29 June 2004

FOR SENTENCE

These five convicted prisoners pleased guilty to burglary contrary to s. 299(a) of the Code.

Fred Fale and Seni Fuguomea as well pleaded guilty and were convicted of assault occasionally grievous harm contrary to s. 226 of the Code. Ms Fairbairn appeared for Eddie Funubana, Fred Fale and Seni Fuguomea. Mr Swainson appeared for Peter Dani and Emmuel Aidiana.

The brief facts given the court on which these accused have entered their pleas of guilty are as follows:-

On Sunday 8^thJune 2003 there five were drinking a locally brewed alcoholic drink known as Kwaso at a soccer field next to Lungga school outside of Honiara city. Thereafter they all proceeded to Burns Creek and it was whilst they were on their way that Eddie Funubana conspired with the other accused to go to the dwelling house of a doctor, Mdewai Mafia of SDA Union Mission residential area with the intention to steal. Doctor Mdewai Mafia at that time was a Consultant at the United Nations Development Programme office in Honiara. He is from Cameroon, Africa.

They all proceeded to the victim's house where Eddie Funubana cut through the wire fence using a bush knife. They all gained access to the compound through the hole in the fence.

Eddie Funubana was armed with the bush knife at the time while Fred Fale was armed with a kitchen knife. The victim was awakened by the noise.

Eddie Funubana went inside first and was confronted by the complainant. Fred Fale (Wilson Iro) ran up to the house with Seni Figuomea whilst Peter Dani and Emmanuel Idiana remained under the house. Fred Fale threw a knife at the complainant left thigh which got stuck in his thigh. The knife was removed at the National Referral Hospital. The complainant was also stoned by Seni on his left rib, the second stone on his face. The complainant also sustained a stabbing injury to his arm. Eddie Funubana took a radio cassette valued at $580.00 from the house.

It was conceded that none of the accused, apart from Emmanuel, had any prior convictions. He had three convictions going back to the earliest at age 15. He is clearly a rascal. The convictions included smoking cannabis; going armed in public and resisting arrest. He admitted the first but argued the other two. Mr Talasasa says he will seek certificates of conviction.

I was referred to the Court of Appeal decision in Tariani -v- R, 88 Applic 89 SILR 7 on sentencing. They need not be restated here.

Ms Fairbain was keen to emphasise the rehabilitation aspect. Her clients were young (aged about 20) and had no prior conviction. She says the sooner they could return to their community, the sooner their rehabilitation could commence. They came from their community and when one sees that 5 were involved, I am not convinced their community will stand them in good stead, so far as rehabilitation in the Honiara area is concerned. They are from Malaita.

So far as circumstances of aggravation are concerned, this court was told to bear in mind, that while the plea was predicated by the admission of the common intention, such agreement to rob, Ms. Fairbain says, did not reflect much forethought and reflected rather little organization. Ms Fairbain says, while walking along, they offended on the spur of the moment deciding to invade the home of this victim. But it must be remembered one had a bush knife and another a kitchen knife so they came armed. It was obvious to all on the agreed facts as the invasion progressed, that by breaking through the chain wire fence and the door of the house that force and violence was a possibility. Her assertion that this was a spur of the moment opportunist offence, cannot illustrate better how parlous safety in the Honiara community had become at these times. Drunken armed gangs were commonplace.

The house was broken into at night with violence and serious personal injuries occasioned to the victim who was asleep before this home invasion.

Personal details

Fred Fale arrived in Honiara in about February 2003 to seek work and was residing with his uncle. He obtains work as a carpenter at Tongs Corporation. His uncles' reference was given to the court. His uncle said the boy was the fifth of eight boys and had been viewed as supportive of his mother.

Seni Fuguomea was the first born of a Malaitan Christian family, is aged 23, married with two children (the youngest born whilst he was in custody waiting trial)

Eddie Funabana was aged about 20 and is married. He had been raised by his father in Malaita, had rudimentary education and married a Malaitan woman. He attended school until grade 3, he is aged about 19. His children Silas and Dowaea are with his wife. His step-father was in court. Ms Fairbain says the family is suffering hardship with the burden of supporting this boy's wife and children on a meagre income he obtains from farms about Honiara. Nothing factual was tended in relation to that aspect but I will deal with the effect on family at a later stage.

Peter Dani is aged 20 not married and lives with his mother. His father has passed away.

Emmanuel Idiana is aged 18. He is outside the scope of the juvenile's Act. Mr. Swainson says that both were employed at the time of this offence.

In relation to the bodily harm suffered by the victim, the evidence is to be found in the doctor's report of Chester Kuma dated 30 June 2003. The report recites the victim, Dr. Ebella, (a male aged 43)

“presented to the Casualty Department, National Referral Hospital on the 8 June las tyear with body wounds following an attack at his house early that morning. Examination revealed; 1. an adult male in no distress but obviously shocked by the incident with blood on his clothing, 2. a stab wound to his right arm on lateral aspect to proximately 3 cm in diameter and 3 cm deep with only marginal injury. All vital structures were intact. 3. a stab wound on his left thigh, lateral aspect which was 2 cm in diameter and 3 cm deep with marginal injury but vital structures all intact, 4. a 3.5 cm contusion beneath his right eye superficial and already sutured when seen, 5. subconjunctival haemorrhage of his left eye resulting from a punch to the eye. 6. painful to the left chest in region of ribs 789. There is minimal bruising and clinically radiologically no fracture of the ribs and normal lug fields. 7. rest of the findings were normal. The doctors treatment including debridement of the wounds and primary suturing. The patient was given pain relief medications and antibiotics. He recovered well and is currently feeling much better."

The items stolen, the radio cassette was recovered but it is not clear whether it was returned to the owner. The complainant left the country.

Mitigation.

It was difficult to find any expression of remorse in the light of what took place before the lunch adjournment when Eddie Funubana, on his allocutus started to resile from his guilty plea. I refused to hear them further since further allocutus would appear to be coaching. They, I was told, intended a public expression of remorse. Far from it. I propose to ignore the talk by Eddie Funubana and have regard only to his earlier plea of guilty upon which I convicted him. Clearly the admission calls for a discount for the complainant is not in country.

Recidivism.

Ms. Fairbain said the families of these prisoners would offer support (for they were in court). I have heard the two statements of these accused Emmanuel and Peter and am asked to find that the risks of the re-offending are low. I am not minded to take much notice of the fact of the appearance in court of the families on this aspect when it seems the all these families have had little impact on these mens' criminal behaviour. Their time in jail will etch possible results of re-offending very deeply.

A number of cases were referred to for assistance with the sentencing process. I also have regard to the matters raised by my brother judge, the Chief Justice in Nelson Funafaeta -v- R, an appeal heard a little while ago, involving as it did burglary and assault in company and with weapons.

As a matter for mitigation, the court was told these remandees had not seen their family whilst they had been at Rove.

I am not in a position to entertain why and do not intend to-take that judicial notice of that fact if true as an indication of particular hardship which should weigh in these prisoners favor. It is but an incident of the times. If in reality there is a problem then representations may be made to the appropriate authority, the Comptroller of the Prisons. It was suggested that a Emmanuel's prior offences were relatively minor. I do not agree that going arm in public or resisting arrest is a minor matter unrelated to the charges before me.

Mr. Swanson pointed out that the possibility of successful convictions in the Crown case has been compromised by the absence of the complainant who had returned to his native country. Had he been brought back considerably expense would have been expanded by the State. He says both defendants were prepared to plead for both recognized the wrong doings. Nothing was said about the drinking which led up to this offence.

The court was warned that the particulars of the offence of burglary alleged intent to commit a felony, to wit; steal. In those circumstances on the strength of common law principles expressed in R -v- De Simoni (1981) 147 CLR 383 at 389 " circumstances of aggravation not alleged in the indictment cannot be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge".

So in this case the common law principles exclude, when dealing with the burglary charges, the evidence of the aggravated assault. That is so, for the burglary charge asserts the intent to commit the felony of "stealing". It would have been available to the prosecution to also allege an alternate felony, to rob with violence, perhaps, but such was not the case.

An appropriate tariff.

Burglary carries a maximum penalty of life imprisonment.

Unlawful Grievous harm carries with it a maximum penalty of 14 years jail.

Counsel refer me to various cases but as I said, since the High Court has not been dealing with many burglary cases post coup, I invited defence counsel to advise on the range of sentences handed down by Magistrates. My enquiries revealed that first offenders attracted a sentence of three years in jail. Repeat offenders attracted higher penalties. This information is important for despite careful elucidation of principle, it will be wrong to act in ignorance of such sentences imposed by the Magistrates. The case of Nelson Funifaka -v- R involving as a case of grievous bodily harm illustrated the appropriateness of a sentence of five years on the facts of that case. In Bade -v- R a decision by Ward CJ in 1998, His Lordship expressed the view that an appropriate starting point was four years jail.

Parity Principle

In the circumstances of this case this is appropriate. There is the offender whose prior convictions call for a lesser discount in relation to the guilty plea than the others. To ignore the principle apart from that instance would only cause disquiet amongst these families.

Effect on Family

In the circumstances described, the family affiliations and tribal strength so proudly espoused in the Solomon Islands, and noting only one of these defenders has prior convictions, I do not consider there are any extra-ordinary reasons requiring me to depart from the principle that the effect on family must be ignored.

Maximum Penalty

This is reserved for the worst type of cases but this case must go close. The facts illustrate a careless disregard for the rights of others at the very least and illustrates why the criminal activities about the time of the coup and since has been euphemistically called "ethnic tension" when these Malaitan men go armed at night on Guadalcanal to steal.

Plea of guilty without remorse still mitigates

By way of common law (R -v- Doyle (1994) 71 A.Crim.R. 360 WA CCA) is authority for that proposition and that common law precept applies in the Solomon Islands. The effect of the plea of guilty calls for a reduction from the maximum sentence available in this cases and is certainly to be expected and will given here. The principle in this case relates to the pragmatic ground that the community will avoid the expense of a trial for those costs will be considerable with the complainant out of the country.

Deterrence

There is little deterrent effect to be achieved through sentencing in this community. I am not satisfied the community effectively differentiates between those in custody waiting trial and those lawfully sentenced to a term of imprisonment. The objective view is that they have been incarcerated so seeking to dissuade others likely to commit these offences is of little weight as a general deterrent in this community but maybe of great weight so far as the particular individuals feeling towards re-offending is concerned. But merely to consider the possibility does not give me any assurance such may the case here. I say that advisedly after seeing these in the dock at the time of their allocutus.

Victims attitude

The victim is a foreigner no longer in the Solomon Islands. He was seriously injured. He was a visitor, someone entitled to the shelter of our roof having been invited here. Certainly I believe this circumstance call for greater retributive punishment by this court for the risk of retribution in the community of these offenders by tribal threat is entirely absent in this case. Attacking foreigners should not be seen as an easy mark in the absence of the risk of community retribution, rather retribution should be exacted by way of court sentence. The court should stand in place of the community.

Prevalence of Offence

It is trite to say that prevalence of this type of offence was the cause of great concern within the community for the presence RAMSI must be the basis of such knowledge when "Law and Order" had reached such a nadir. General deterrence and retribution are important elements in this type of case, serious as it is.

General deterrence through sentencing is necessary for the fact of outside intervention reducing the incidents of these serious crimes about Honiara is not justification for lessening the sentence in these particular cases. It is now, when the community can lift its head, that the shame rightly attaching to such serious criminal behaviour needs to be recognized by appropriate sentences which have that deterrent and just retributive aspect.

Deposition to be used only if accused agrees

In this case, agreed facts were handed up. I am satisfied guilty pleas could be accepted on those facts, sparse though they were.

The foregoing discussion about the appropriate sentence in this case is based on the agreed statements of facts. Deposition should not be used where the agreed statement of facts are handed up but in other cases the depositions may be read by the trial judge to satisfy himself that he can properly accept the plea and those depositions will become the basis of the material on which he can rely for sentencing.

Sentence

This gang of men could expect a sentence of 9 years for burglary. The seriousness and callousness of the grievous harm occasioned calls for a sentence of 7 years. The plea must reduce that head sentence. I also take account of the other matters raised.

All are sentenced to 6 years for the burglary. Seni and Fred are sentenced to 5 years for the assault. Such sentences shall be served concurrently. I do not propose to vary Emmanuel's sentence after all, otherwise the disparity principle will be breached. The sentences will commence from their time first in custody.

THE COURT.