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Senda v Republic [1975] NRSC 7; [1969-1982] NLR (D) 38 (13 May 1975)

[1969-1982] NLR (D) 38

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 7 of 1975

JOHN SENDA

v.

THE REPUBLIC

13th May, 1975.

Sentence - imprisonment - appellant only person from his country n Nauru - effect on sentence.

Appeal against sentence of two years' imprisonment for assault occasioning actual bodily harm. The assault was vicious and warranted a lengthy sentence of imprisonment. The appellant was the only Solomon Islander in Nauru.

Held: The fact that the appellant was the only person from his country in Nauru would make the sentence of imprisonment more onerous than it would otherwise be and was a matter to take into account in fixing the period of imprisonment.

B. Dowiyogo for the appellant
J.H. Berriman for the respondent

Thompson CJ:

The appellant took part with another man in a vicious and, because it was a case of two men against one, a cowardly attack on the victim. As a result the victim suffered quite serious injuries: such was the nature of the attack, kicks with shoes to the body of the victim after he had fallen, that even more serious injuries might well have resulted. It was not because of any restraint on the part of the appellant that they did not do so. He may have kicked only the victim's legs; but he was acting in concert with the other assailant who was kicking the victim's body.

There were no mitigating circumstances whatsoever, so far as the assault was concerned. Since the offence the appellant has apparently been co-operative with the police. However, the seriousness of the assault was such that a substantial sentence of imprisonment was the only appropriate sentence. The sentence of two years' imprisonment imposed by the District Court was neither wrong in principle nor harsh and excessive.

I have given consideration, however, to the fact that the appellant is now the only Solomon Islander left in Nauru. Undoubtedly this will make his period of imprisonment more unpleasant; he will not be able to receive visits from his family or his compatriots. For that reason, and for' that reason alone, I think that there are grounds for some reduction in the length of the sentence. It is still necessary that a substantial period be served; I think that a period of twelve months is about right in the circumstances.

Accordingly the appeal is allowed and the sentence of imprisonment is reduced from two years to twelve months.