R v Dani and Aidiana [2004] SBCA 16; CA-CRAC 011 of 2004 (11 November 2004)

SOLOMON ISLANDS COURT OF APPEAL

FILE NO/S: Criminal Appeal No 11 of 2004
Criminal Appeal No 12 of 2004

PARTIES:

R

V

DANI, Peter
(appellant)

AIDIANA, Joe
(appellant)

R

V

FUNUBANA, Eddie
(appellant)

IRO, Wilson (aka FRED FALE)
(appellant)

FIGUOMEA, Seni
(appellant)

CITATION: R v Dani & Anor; R v Funubana & Ors

DIVISION: Court of Appeal
PROCEEDING: Criminal Appeals against Sentence
ORIGINATING COURT: High Court at Honiara

DELIVERED ON: 11 November 2004
DELIVERED AT: Honiara
HEARING DATE: 8 November 2004

JUDGES: Lord Slynn President and Goldsbrough and Williams JA

COUNSEL: M Swainson for the appellants in Criminal Appeal No 11 of 2004
C Baker for the appellants in Criminal Appeal No 12 of 2004
R Talasasa for the respondent

JUDGMENT OF THE COURT

1. ORDERS:
1. Appeals allowed
2. The sentences of the High Court are set aside
3. The following sentences are imposed:

(a) In respect of the appellant Eddie Funubana, for the offence of burglary contrary to section 299(a) of the Penal Code, 4 years imprisonment
(b) In respect of the appellants Seni Figuomea and Wilson Iro (aka Fred Fale), for the offence of burglary contrary to section 299(a) of the Penal Code, 4 years imprisonment and for the offence of unlawful grievous harm contrary to s 226 of the Penal Code, 4 years imprisonment, such sentences to run concurrently; and
(c) In respect of the appellants Peter Dani and Joe Aidiana, for the offence of burglary contrary to section 299(a) of the Penal Code, 3 years imprisonment

2. THE COURT: This is an appeal against sentence arising from a decision of the High Court given on 29 June 2004. In the proceeding the five appellants were each sentenced to six years imprisonment for an offence of burglary contrary to section 229(a) of the Penal Code. In addition two of the appellants (Seni Figuomea and Fred Fale aka Wilson Iro) were sentenced to five years imprisonment for inflicting grievous bodily harm contrary to section 226 of the same Code. That second sentence was expressed to run concurrently with the first, making each appellant subject to an effective six year term of imprisonment.
3. There are four grounds of appeal raised in respect of all five appellants and one additional ground in respect of Joe Aidiana. The four grounds brought to support the appellants’ contention that the sentence was manifestly excessive can be summarised as follows:
Insufficient weight given to mitigating factors
Sentence outside expected range
The various roles of the co-accused
Aggravating factors manifestly unjust to hold against the accused.
In respect of Aidiana only the additional supporting ground was the weight to be attached to one previous conviction.
4. The facts of the offence as outlined to the court on pleas of guilty from the accused concern a private dwelling house burglary committed at night in Honiara. An occupant of the dwelling house was confronted by the three appellants who entered the house, two having remained outside. In that confrontation the householder was injured by the appellant Fred Fale (aka Wilson Iro) throwing a knife at the householder and Seni Figuomea throwing stones at the same householder. At the same time Eddie Funabana was present and armed with a bush knife but did not use it. In the course of the burglary one item valued at $580 was stolen.
5. Whilst the various appellants were represented by two different counsel, counsel for each adopted the submissions of the other.
6. Appeal ground 1 concerns those matters often referred to as mitigating factors. In this instance age is put forward as a factor which should be taken into account. These appellants vary from 23 years of age, at the time of sentence, to 18 years of age, again at the time of sentence. With one exception, Fugomea, they were under 21 years of age and could come within the category of young offenders discussed in Bati v DPP 1985 SILR at 268.
7. But they came at the higher end of the scale in this category. Some of them are married, some have children and these factors should suggest a stable and settled environment in which offending does not figure. And since even the principles expounded in Bati permit the imposition of a long sentence of imprisonment in an appropriate case, youth of itself in this case is not a strong ground of appeal.
8. Youth taken together with a lack of previous convictions presents a more compelling argument. Only Aidiana within this group had any previous convictions and for the purposes of sentence and this appeal he only had one previous conviction for growing Indian Hemp in 2001 when he was a juvenile. Taking into account the nature of the offence and the fact that it was a finding of guilt as a juvenile, that previous offence should not carry a great deal of weight when sentencing for burglary.
9. However, in sentencing, the learned judge referred to the appellant as a “rascal” and took into account two additional previous convictions that were neither admitted nor proved. Those two disputed previous convictions remain unproved. If indeed they were to be relied upon in sentencing the correct procedure for their proof should have been followed to completion prior to the sentencing exercise. This error is somewhat mitigated when one finds that the sentencing judge appears to have decided in applying the parity principle to disregard the previous convictions.
10. These appellants should have been sentenced as first offenders of relatively young age for offences to which they pleaded guilty. Those factors would go towards reducing that which might otherwise have been regarded as the appropriate sentence for these offences, variously referred to as the “starting point” or the “head” sentence.
11. This brings the court to consider ground 3 of the appeal which relates to the range of appropriate sentence. The court below was referred to a number of previous decisions in an attempt to guide the sentencing judge.
12. Excluding overseas authorities, at least six authorities were referred to in the court below to demonstrate the range of sentence applied in burglary or wounding cases. Sentences adopted in those cases ranged from 9-18 months imprisonment for a first offender convicted of burglary with no aggravating circumstances per Palmer J in Qila v R ([1995] SBHC 44; HC CRC 19 of 1995) to 7 years imprisonment in R v Funitaka [1997] SBHC 31 for grievous bodily harm committed in the course of a dwelling house burglary.
13. There are cited no authorities which support the learned judge’s proposition contained in the penultimate paragraph of his judgment, “This gang of men could expect a sentence of 9 years for burglary.” Indeed that proposition is contraindicated as summarized on page 4 of his decision at paragraph 2 wherein he states:

“... 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 in jail.”

14. Careful consideration of the authorities suggests an appropriate starting point to be six years imprisonment for the burglary and the offence relating to the injury caused to the householder during the course of that offence.
15. Whilst in no way seeking to detract from the serious nature of this night-time, dwelling house burglary involving the actual use of violence with weapons, this crime taken as a burglary or a grievous bodily harm does not come close to the worst example of such cases as stated by the learned judge.
16. There will be occasions when, owing to prevailing circumstances, a court may be inclined to reconsider the applicable tariff. But this does not seem to be the intention indicated here.
17. Ground four of the appeal relates to the level of respective involvement as between the five accused. Of the five, two remained outside of the dwelling house, three entered. Of the three, two inflicted the injuries to the householder.
18. It is therefore suggested by counsel for Dani and Aidiana (who did not go inside the premises) that a lesser sentence may be appropriate. This principle has been accepted in previous cases, particularly in R v Mani (unreported) wherein Palmer J states:

“I accept that some credit can be given for the level of participation of this co-accused which can be reflected in the sentence imposed without detracting from the acceptable range of sentence.”

and seems equally appropriate here. These two men should have, to adapt the phrase used by Palmer J “the wheel one notch” in their favour. In so far as the same principle may be said to apply to the appellant Funubana who was armed and present during the assault but did not use his weapon we do not agree because he was there and he was armed.
19. It is not a ground of appeal that the learned judge failed to apply the appropriate discount in sentencing following a guilty plea. This principle is well established and for good reason. It should and will be applied here as was done in the court below.
20. In the event the appeals are allowed, the sentences of the High Court set aside and the following sentences are imposed:

(a) In respect of the appellant Eddie Funubana, for the offence of burglary contrary to section 299(a) of the Penal Code, 4 years imprisonment;
(b) In respect of the appellants Seni Figuomea and Wilson Iro (aka Fred Fale), for the offence of burglary contrary to section 299(a) of the Penal Code, 4 years imprisonment and for the offence of unlawful grievous harm contrary to s 226 of the Penal Code, 4 years imprisonment, such sentences to run concurrently; and
(c) In respect of the appellants Peter Dani and Joe Aidiana, for the offence of burglary contrary to section 299(a) of the Penal Code, 3 years imprisonment.