Bati v Director of Public Prosecutions [1986] SBCA 2; CA-CRAC 004 of 1986 (19 December 1986)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Criminal Appeal Case No. 4 of 1986

SALE BATI

-v-

DIRECTOR OF PUBLIC PROSECUTIONS

(Sir John White P, Kapi and Connolly JJA)

Hearing 16 December 1986
Judgment delivered 19 December 1986

Mr Brown for the Appellant
DPP in person

JUDGMENT OF THE COURT

This is an application for leave to appeal against a sentence of 6 years imprisonment imposed following conviction on three charges of storebreaking contrary to s. 293(a) of the Penal Code.

The first charge was breaking and entering the Western Development Company's store and stealing goods and cash totalling $2,297.

To this charge the appellant pleaded guilty.

The second charge was of breaking and entering the canoe store of Robert Eason and stealing an outboard motor and petrol tank valued at $1200.

The third charge was of breaking and entering the Commodity Export Marketing Authority's office and stealing $45,758.31 in cash.

At his trial on the second and third charges the appellant was found guilty and convicted. In sentencing the appellant on the second and third charges the learned Commissioner referred to them as "related" and decided they should "run concurrently".

Accordingly the sentence of the Court was: On the first charge (1984), one year's imprisonment. On the second charge (1985), two years imprisonment, on the third charge (1985), 5 years imprisonment; the second and third charges to be consecutive to the first charge and concurrent to each other. The result was a sentence of 6 years imprisonment from 15 January 1986.

The ground of appeal was that the sentence was manifestly excessive having regard to the following factors:

(a) the age and previous good character of the appellant, particularly his youth at the time the offences were committed.

(b) his plea and the staleness in relation to the first of the three counts.

(c) the crushing effect on the appellant of the sentence.

(d) the deterrent element in the sentence was too great.

(e) the learned Commissioner placed too much weight on the amount of money stolen in respect of the third offence.

In imposing sentence the learned Commissioner described the amount stolen on the first charge of breaking and entering as "substantial" and the amount in the third breaking; and entering as "exceedingly large". He also commented on the planning and execution of the third offence and the fact that recovery of money taken had been "negligible". He observed that that was a factor he must take into account together with the seriousness of the offence. In his view a sentence which would have a deterrent effect on the appellant and others was necessary. Finally, he took into account as mitigating factors the youth of the offender, the fact that he had no previous convictions, the length of time since the commission of the first offence and Mr Hughes' submission regarding the crushing effect of a long sentence.

There was no dispute that the Commissioner had drawn attention to the essential factors in imposing sentence. Mr Brown's basic submission was that proper weight had not been given to the age of the appellant who was 18 at the time the offences were committed in 1985. Theft of large sums of money have not been common in Solomon Islands but Mr Brown referred to a recent case when a person aged 39 who was in sole control of an organisation was imprisoned for 5 years. It was submitted that in sentencing the appellant to 6 years imprisonment too much weight was attached to the amount stolen in sentencing the appellant.

Mr Brown referred to "Principles of Sentencing" (D.A. Thomas) 2nd Edition 195, dealing with the age and history of the offender where the following passage appears:

"Youth is one of the most effective mitigating factors. As has been shown the Court strongly favours the use of individualised measures for offenders under 21..... Where an offender of this group is sentenced to imprisonment, the sentence will normally be considerably shorter than would be awarded to a man of mature years for the same offence".

Later in the same paragraph, however, the learned author continues,

"Recognition of the mitigating effect of youth does not mean that long sentences are necessarily wrong when imposed on offenders below the age of 21 years..."

In our view the quoted passage correctly sets out the principles to be applied in considering the age of an offender as a mitigating factor.

In the present case when the circumstances of the organised breaking and entering and theft of the large sum of money are considered, and the principles of punishment already referred to are applied, we are unable to agree that the sentence of six years imprisonment was manifestly excessive. In our view the appeal must be dismissed and is dismissed accordingly.

WHITE P
M. KAPI J.A
P. CONNOLLY J.A