Bati v Director of Public Prosecutions [1986] SBCA 3; [1985-1986] SILR 268 (19 December 1986)

1986 SILR 268

IN THE SOLOMON ISLANDS COURT OF APPEAL

Criminal Case No. 4 of 1986

BATI

-v-

DIRECTOR OF PUBLIC PROSECUTION

Solomon Islands Court of Appeal
(Sir John White P, Kapi and Connolly JJA)
Criminal Appeal Case No. 4 of 1986

16 December 1986 at Honiara
Judgement 19 December 1986

Storebreaking- Appeal against sentence - youth of offender - large sum of money

Facts:

The appellant sought leave to appeal against a sentence of six years imprisonment following conviction on three charges of storebreaking on the ground that the sentence was manifestly excessive. The first charge, to which the appellant pleaded guilty, involved the theft of $2,297. the second charge involved the theft of $1200 and the third the theft of $45,758.31 the appellant was sentenced to one year imprisonment on the first charge and, following trial and conviction, was sentenced to two years imprisonment on the second charge and five years imprisonment on the third, the latter two charges to run consecutively to the first and concurrent to each other.

Held:

1. The Commissioner had drawn attention to the essential factors in imposing sentence, those being the seriousness of the offence considering the amount of money stolen, the planning and execution of the third offence and the negligible amount recovered, the necessity of deterrence and the mitigating factors including the youth of the offender, his lack of previous convictions, the length of time since the commission of the first offence and the crushing effect of a long sentence.

2. Youth is one of the most effective mitigating factors and sentences for offenders under age 21 will normally be considerably shorter than for a man of mature years, however, this does not mean that long sentences for offenders under the age of 21 are necessarily wrong. (D.A Thomas, Principles of Sentencing (2nd ed.) 195 followed).

3. Considering the circumstances of an organised break in and theft of a large sum of money and the principles of sentencing applied by the Commissioner and as set forth by the Court, the sentence of six years imprisonment was not manifestly excessively.

Accordingly, the appeal was dismissed.

Considered:

D.A Thomas, Principles of Sentencing (2nd ed.)

Kenneth Brown for the Appellant
Francis Mwanesalua, DPP, in person

Sir John White P, Kapi and Connolly JJA: 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 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 year’s imprisonment, on the third charge (1985), 5 years imprisonment; the second and the 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 offence 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 Magistrate 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 of the offences were committed in 1985. Theft of very 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 organization 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) 2^nd Edition 195, dealing with the age and history of the offender where the following passage appears:-

"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..."

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

In the present case when the circumstances of the organized 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 this case we have heard the application for leave to appeal and also considered the substantive appeal.

For the reasons we have given the appeal must be dismissed and is dismissed accordingly.