Gerea v Regina [2005] SBCA 2; CA-CRAC 004 of 2005 (25 July 2005)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Palmer CJ)

COURT FILE NUMBER: Criminal Appeal No 4 of 2005 (On Appeal from High Court Criminal Case No 243 of 2004)

DATE OF HEARING: Monday 25^th July 2005

DATE OF JUDGMENT:

THE COURT: Lord Slynn of Hadley P, Adams & Goldsbrough JJA.

PARTIES: JOHN GEREA

(Appellant)

-V-

REGINA

(Respondent)

JUDGMENT

The appellant was convicted on his plea of guilty in the Central Magistrates’ Court on 20 October 2003 on the following charges, which were committed on 16^th May 2003-

(i) Unlawfully assaulting Mailin Dova;

(ii) Unlawfully going armed in public (with a loaded rifle) in a manner that caused fear to persons, namely Baddley Vaike, Belshazzar Kalamo, and Patteson Mani;

(iii) Having possession of a firearm (the loaded rifle) with intent to intimidate a person, namely Belshazzar Kalamo, to refrain from doing an act, did threaten to harm him with the firearm; and

(iv) Without reasonable excuse discharged the firearm in a public place, namely the King Solomon Hotel.

The appellant was sentenced to 9 months imprisonment for the first of these offences and respectively for the others, 18 months, 18 months and 6 months. All sentences were consecutive, giving a total sentence of 4 years and 1 month.

On his appeal to the High Court, Palmer CJ reduced the sentence on the first charge to 6 months in recognition of the guilty plea which, his Lordship considered, had mistakenly not been taken into account. His Lordship concluded, however, that the learned Magistrate had taken the guilty pleas appropriately into account on the other charges. His Lordship rejected the additional contention that the sentences, individually considered, were manifestly excessive.

It was also a ground of appeal in the High Court that the sentences, or some of them, should have been concurrent rather than accumulated. Palmer CJ rejected this ground but held that the total sentence was too high. His Lordship said -

“Having imposed the appropriate sentence, the Court should stand back and look at the total. The facts do reveal that the appellant had returned to his room and collected his rifle after an angry confrontation with the security staff of the Hotel. The rifle had been brought down intentionally with that in mind. The offence of threatening flowed directly from the offence of going armed. They were directly connected to each other. The totality principle therefore should be applied with the view to determining what is “just and appropriate”. In the circumstances, I am satisfied there should be reduction in the total of 36 months to 30 months resulting in the term of 18 months imposed for each offence to be reduced to 15 months each.”

Palmer CJ considered that the complaints on the ground of proportionality were not made out and declined to intervene further.

The appeal to this Court is upon two grounds –

1. That the learned Chief Justice misdirected himself in law in ordering that the sentences in respect of counts 2 and 3 run consecutively.
   
2. That the learned Chief Justice misdirected himself in law in dismissing the appeal against sentence imposed in respect of count 4, since the maximum sentence permissible by law was imposed and thus he failed to take into account the mitigating factors and the timely guilty plea.
   

As to Ground 1

Palmer CJ concluded that the learned Magistrate was correct in separating the charges. His Lordship’s analysis was as follows -

“When the single transaction test and the totality principle are considered together it is clear the common assault charge (count 1) must be treated separately as it entailed an offence against a separate victim. The discharging of a firearm in a public place must also be treated separately as it was clearly a separate and distinct offence to what transpired thereafter, though it can be argued and so argued by the Defence that it was but part of the same transaction which occurred regarding the unlawful use of that weapon. The effect of the appellant’s action, however, must be borne in mind in that it caused fear and terror to the public at large. Also, he could have desisted from discharging that firearm and not be charged for such offence. It was rightly determined therefore by the learned Magistrate as a separate offence and made consecutive to the other sentences.

“The same argument applies to the offences of going armed in public and for threatening with violence. Whilst the two offences are connected, the latter was specific to Belshazzar Kalamo in that a cocked rifle was pointed directly at him. No worse or more frightening example of such conduct of threatening violence with a firearm can be imagined. They were deliberate and intentional acts and the appellant could have desisted from pointing a cocked rifle at Kalamo. The learned Magistrate again correctly decided to make those sentences consecutive.”

The appellant contends that the analysis and conclusions of the learned Chief Justice erred in a number of respects. The first point made is that “in reality”, in order to be convicted of the offences of threatening violence with a firearm and discharging it, the appellant had to be carrying a firearm and so necessarily would be guilty of going armed as well. The offence of going armed in public contrary to s83 of the Penal Code has an element that doing so causes fear to some person. Here, the particulars were that the persons placed in fear by the appellant’s conduct were Baddley Vaike, Patteson Mani and Belshazzar Kalamo. It could be readily accepted that that frightening Mr Kalamo was part and parcel of the intimidation of him, but the frightening of the others was quite distinct, although the gun was carried in public to the point of intimidation, which also occurred in public. Whether this meant that the offences should have been regarded as merely aspects of the same transaction or as separate crimes is obviously a matter of fact and degree. Put in another way, it raises a question of mixed fact and law and not a pure question of law.

Moreover, whether concurrent or consecutive sentences should be imposed in a particular case is a discretionary judgment. There is no statement in the judgment of Palmer CJ that is pointed to as suggestive of legal error in respect of his Lordship’s undertaking of the single transaction analysis. It follows that, if his Lordship’s discretion miscarried at this point it was either due to an implicit or latent error of law or an error of fact or a combination of both. Even if (accepting for the sake of argument that it did so) his Lordship’s discretion miscarried, unless the appellant is able to demonstrate that it did so because of an error of law only as distinct from an error of fact or an error of mixed fact or law, he cannot establish that he has a ground of appeal capable of being raised in this Court under s.22(1) of the Court of Appeal Act, which gives an appeal on a ground involving “a question of law only.”

This is sufficient to dispose of this contention.

The second point made by the appellant is that the learned Chief Justice erred in applying the totality principle. It is submitted that his Lordship applied it only to the 2^nd and 3^rd charges. We take it that he did so to avoid the element of double punishment so far as instilling fear in Mr Kalamo was concerned. We have set out the material paragraphs from his Lordship’s judgment above. In dealing with what his Lordship describes as “the totality of the circumstances”, the only matters mentioned are those which form part of charges 2 and 3, which are described as “directly connected”. It appears to us that the reductions made by the learned Chief Justice to these sentences were calculated to take into account the extent to which, in his Lordship’s view they overlapped, so that, taken together, they would not impose excessive or double punishment. If we may respectfully say so, his Lordship was plainly right to make this adjustment. Having taken this step, however, it was necessary that his Lordship should consider the question whether the aggregate of the sentences of all four offences was appropriate, having regard to the overall criminality involved. That his Lordship did not mention, when dealing with totality, either the assault charge or that involving the discharge of the firearm leads us to infer that his Lordship did not take this further, final step. It follows that an error of law has been established.

The final argument advanced on the appellant’s behalf concerns the 6 month sentence imposed on him in respect of charge 4.

It is submitted that the maximum penalty available should only be imposed in rare cases and that this is not such a case. There is no rule of law or practice to the effect contended for. It may occur that that maximum penalty is rarely imposed but that it is mere reflection of the frequency with which cases meriting the maximum occur. The proper test has been variously stated. It is sufficient for present purposes to cite Veen -v- The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 478 –

“The maximum penalty prescribed for an offence is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs -v- The Queen [1987] HCA 46; (1987) 163 CLR 447. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category.”

It is apparent that the appellant’s submission is no more than a contention that the sentence was too severe and, hence, cannot be a ground of appeal in this Court.

We return to the question whether the aggregate sentence is appropriate.

The assault upon Mailin Dova involved a single blow that knocked her to the ground and she suffered minor but painful injuries. This offence was entirely separate from the other offences and involved a different victim. The three offences involving the firearm, committed as they were by a policeman at a time when law and order had broken down, constituted a gross abuse of the trust reposed in him with the potential for causing very serious injuries to innocent members of the public. Nor can they be considered in isolation. The conduct of the appellant was part of the general breakdown in law and order to which Palmer CJ referred. This is not to punish the appellant for the criminal acts of others: it is merely to place it in its context so that its seriousness can be appropriately and realistically assessed. In particular, the context requires great weight to be given to the requirements of both personal and general deterrence. The narrative of events makes clear, however, that the discharging of the firearm was closely associated in point of time and place with the other offences and involved some of the same conduct that was part of circumstances of those offences, in particular, the obtaining of the gun from his room and bringing it into the public area of the hotel. The principle that an offender can only be punished once for the same or essentially the same conduct (often referred to as the rule against double jeopardy) is a fundamental element of the criminal law. It follows that the sentence for the discharge of the firearm should be reduced, not because the sentence of 6 months was excessive, but because it has already been partly punished by the sentences imposed in respect of the other firearm offences. We consider that the appropriate adjustment is 3 months.

The result is that the appeal is allowed, the sentence in respect of the offence under s44 of the Firearms and Ammunitions Act is quashed and a sentence of 3 months substituted in lieu thereof. Otherwise the appeal is dismissed.

President, SI Court of Appeal
Judge of Appeal
Judge of Appeal