Angitalo v Regina [2005] SBCA 5; CA-CRAC 024 of 2004 (4 August 2005)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Brown J)

COURT FILE NUMBER: Criminal Appeal No 24 of 2004 (On Appeal from High Court Criminal Case No 360 of 2004)

DATE OF HEARING: Monday 25^th July 2005

DATE OF JUDGMENT: Thursday 4^th August 2005

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

PARTIES: ANGITALO & OTHERS

(Appellants)

-V-

REGINA

(Respondent)

JUDGMENT

Introduction

The appellants, David Angitalo, Kenneth Ongainao, Henry Satini and Patrick Basikaro were convicted in the Magistrate’s Court in Malu, North Malaita on 4 December of a number of charges arising out of the disruption of a hearing in the Local Court on 15 June 2000. The charges and sentences were as follows:-

Angitalo - Going armed in public - 18 months

- Theft - 2 years

Ongainao - Assault Court Officer - 2 years

- Theft - 2 years

Satini - Theft - 2 years

Basifaro - Going armed - 2 years

- Theft - 2 years

- Assault Court Officer - 2 years

Angitalo’s, Ongainao’s and Basikafo’s sentences were accumulated, giving total terms respectively of 3½ years, 4 years and 6 years. The offences each carried a maximum term of imprisonment of 2 years, except for theft which carries a maximum term of 5 years imprisonment. Satini has served his sentence (after remission) and did not appear on the appeal. We have left his appeal in abeyance.

The appellants appealed to the High Court against their convictions and sentences. Except for the theft charge against Basikafo (which the Crown conceded should be quashed) Brown J dismissed the appeals against the convictions. His Lordship also dismissed the appeals against the sentences.

The appellants appeal to this Court against their sentences upon the grounds, essentially, that insufficient or no regard was given to mitigation and the sentences should have been concurrent rather than cumulative.

Facts

On 15 June 2000 the Local Court at Malu’u, North Malaita delivered a decision in a dispute over land following a week’s hearing. A violent disruption, variously described as an affray, a riot and a melee, took place that was instigated and undertaken by the appellants. Members of the Court fled the building.

His Lordship, Brown J has helpfully summarised the evidence before the Magistrate, witness by witness. Dealing with each appellant, it amounted in substance to this.

Angitalo: Threatened the Court Clerk with a small knife and carried a chain concealed in his trousers; with Satini chased the President from the Court; took Court papers.

Ongainao: Wielded a chain against the President and threw it at him causing him to fall, took a record book.

Satini: With Angitalo chased the President from the Court; took Court papers; had a chain and a small knife.

Basikafo: Wielded a bush knife and concealed in his trousers and threatened a justice; attempted to cut the Court Clerk as he left the Court.

The Seriousness of the Offences

These individual actions occurred as part of a violent attack in which, the evidence is clear, the appellants were acting in concert. The Magistrate found – and this conclusion was inescapable – that the appellants’ actions were organised and pre-arranged. It was plainly an attack on the Court, not only whilst it was sitting, but in reprisal for a decision that it had made. The theft of the Court file was a planned part of the attack and intended, if possible, to frustrate effect being given to the Court’s decision. The Magistrate concluded, quite properly we consider, that this “was an attempt by the community or a section of it, to demonstrate that they were above the law and, if the law did not do what they wanted, they could take the law into their own hands.”

What the appellants did was thus a very serious attack not only on the individuals who comprised the Local Court then sitting, but on the administration of justice itself. Quite apart from the immediate potential grave physical danger in which the officers were placed, the fear that adverse decisions by a Court might lead to violent reprisal on the members or staff of the Court from the affected parties is a continuing serious threat against the administration of justice. Such attacks have profound implications extending considerably beyond the particular court and the particular officers. The deliberate attempt to frustrate the course of justice in a matter of great importance to the future peace and development of Solomon Islands, namely, the peaceful determination by the Courts of disputes about the customary ownership of land by the theft of the Court records – which have still not been recovered – must also be regarded as very serious and having implications going beyond the particular case. Not only must the principles of general deterrence be given considerable weight but the offences themselves involve grave criminal culpability, we think that both the learned Magistrate and Brown J were entirely justified in considering that the assault and going armed charges fell into the most serious class of cases (see R -v- Veen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 478).

The Accumulation of the Sentences

The first ground of appeal is that the learned Judge erred in law in ruling that the imposition of consecutive rather than concurrent sentences was the correct application of sentencing principles.

The relevant principles were succinctly stated by Ward CJ in Bade -v- The Queen ([1988] SBHC 10; [1988-1989] SILR 121; 21 December 1988) as follows –

“When considering sentence for a number of offences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. However, there are two modifications, namely –

(a) where a number of offences arises out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences; and

(b) where the aggregate of the sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case.” [Emphasis added.]

It is submitted on behalf of the appellants, in effect, that the starting point enunciated by Ward CJ is wrong and that the rule should be stated as: “sentences in one transaction should be concurrent unless exceptional circumstances exist”. It is contended that this rule may be extracted from the judgment of Palmer CJ in Farsy -v- R ([2004] SBHC 120; HC-CRC 063 of 2004, 24 June 2004). It is true that the learned Chief Justice did refer to “exceptional circumstances” as justifying departure from the “general rule” that sentences for offences which arise of the same transaction should be ordered to run concurrently. However, we consider that, rightly understood – as the context makes clear – his Lordship was saying no more than that, even where the “one transaction” test is satisfied, the general rule will be inappropriate in some (relatively rare) cases, and this depends on the circumstances. This is demonstrated beyond question by his Lordship’s immediately ensuing discussion of the sentences from which appeal had been brought. It is plain that Palmer CJ did not consider that he was departing from the principles stated in Bade, which have stood for many years. Indeed, we are of the view that there is no difference in substance between what Palmer CJ said in Farsy and Ward CJ said in Bade. The correct application of each formulation should lead to the same result.

Where the arithmetical total of consecutive sentences results in an effective sentence that is inappropriately harsh, the sentencing court can properly make the necessary adjustment by reducing one or more of the accumulated sentences so that the total term is not excessive.

In some cases, for example, thefts that occur over an extended period of time, where each theft is a distinct crime (so that they do not form part of a single transaction) but where giving a consecutive sentence for each offence would lead to an aggregate sentence that is too harsh having regard to the total criminality, the Court might well think it appropriate to pass a number of consecutive sentences but order that the sentences imposed for the remainder should be served concurrently. Again, the crucial question will be whether, looking at the criminality of the offender as a whole, the overall sentence that is imposed is not inappropriately heavy or lenient.

When either of these courses is followed, it is essential that the sentencing Court explain what has occurred, so that there will be no misunderstanding about the way in which the sentences have been arrived at.

It has been suggested that, where concurrent sentences have been imposed in circumstances where the effective sentence does not reflect the overall criminality involved in the offences, the “conventional” sentence for one or more of the offences committed can be increased to ensure that inappropriate leniency is avoided. The fundamental problem with this approach was pointed out by the High Court of Australia in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, namely that it necessarily involves double punishment and infringes the rule against double jeopardy: since, ex hypothesi, the offender has already been punished by one of the concurrent sentences for the other criminal conduct, that conduct cannot be taken into account for the purpose of punishing him for one of the other offences.

The fundamental underlying principle is that a sentence should reflect the true criminality involved in the offences, without on the one hand punishing the offender more than once for the same or essentially the same criminal conduct or, on the other hand, failing to punish the offender for committing a crime. This will almost always be a matter of fact and degree, requiring the exercise of judicial discretion. The fundamental rule is the Court should ensure that both the end result does not exceed what is the appropriate punishment for the offender’s criminal conduct, considered as a whole, and that result adequately punishes the offender for the crimes actually committed. It should be observed, moreover, that the language adopted by Ward CJ is indicatory rather than mandatory.

Brown J referred to Bade, his Lordship’s judgment in R -v- Lauta (unreported [2004] SBHC 100; HC-CRC 384 of 2004), Public Prosecutor -v- Kerua (1985) PNGLR 85 and Thomas, Principles of Sentencing (2^nd ed) 53-6 and concluded –

“...... while the Court must follow the principle or rule [that concurrent sentences are appropriate where the offences arise out of a single transaction], the second rule allows a court discretion to sentence cumulatively when the offences are different in character or in relation to different victims.”

His Lordship referred also to R -v- Dillion (1983) 5 Cr App R 439. We do not see any error in this statement of the relevant rule.

His Lordship pointed to the different character of the various offences as justifying accumulation and considered, in effect, whether the resulting accumulation was inappropriately harsh.

It is submitted that the learned magistrate gave no reasons for finding the “exceptional circumstances” that permitted him to order consecutive sentences.

We consider that, with respect to the learned magistrate and the learned sentencing judge, in the particular and exceptional circumstances here, the offences of going armed in public (which only occurred in the courtroom) and assaulting the court officer on the one hand and stealing the court papers on the other could not properly be regarded as separate offences. The immediate victims were, of course, different but that this was so merely reflected different aspects of the same transaction. Putting it another way, the degree of overlapping involved in the commission of the two offences was so great that they were in the relevant sense part of the same or single transaction. We would observe that, even if it was right to regard the violence offences and the theft as separate offences, the very substantial degree of overlapping could not have justified the mere aggregation of the two sentences that were passed on each offender. The overall sentence that was passed necessarily involved a marked degree of double counting and must have been wrong in law for this reason, if for no other. It is unnecessary for us to deal with this issue further since we have we have concluded, with respect, that the learned Magistrate and Brown J must have misdirected themselves as to a material consideration to have concluded as they did.

Basifako’s offences raise the same issue even more markedly. The weapon was in fact not produced except for the very assault for which he was also convicted. It is true that its production frightened members of the public in the courtroom as well as the victim of the assault. These events, again, were aspects of the same transaction, namely the wielding of the knife to assault the court officer in the courtroom. We have concluded, with respect, that it was an error of law to regard the two offences as other than comprising a single transaction. Again, the complete accumulation of the maximum sentences available for each of these offences in these circumstances necessarily involved double punishment and must therefore have constituted an error of law. Put another way, the principle of totality, if applied, must have resulted at all events in a substantial downward adjustment of one or both of the sentences.

It is therefore unnecessary for us to consider other arguments made on the appellants’ behalf.

The second ground of appeal is that the learned judge erred in law in ruling that, in reducing the sentence of Angitalo, the learned Magistrate had taken into account mitigation of the personal circumstances of each of the other appellants. On the face of it, this ground of appeal seeks to have this Court rule on whether Brown J rightly understood the ruling of the learned Magistrate. We find it difficult to accept that this could be an error of law, even if it were established. However this may be, his Lordship said, quite rightly, that it was an error of law to assert, as the learned Magistrate undoubtedly did, that “no mitigation can have effect in this case, public disapproval of their action has to be shown regardless of personal circumstances.” It was also correct to point out, as his Lordship did, that the learned Magistrate in fact made an allowance, probably because of age, in Angitalo’s case, since he imposed on him a sentence only three-quarters the length of that imposed on Basifako for going armed in public. It seems to us that it is a fair inference to draw that the differences in personal circumstances giving rise to mitigation, if any, were not thought by the learned Magistrate to justify further differentiation. In addition, although, the learned Magistrate indicated that there was a difference between Angitalo and Satini on the one hand and Ongainao and Basikafo on the other, he did not explain the distinction. It may have been that this was a reference to the fact that neither of the former pair were charged with actual assault of a court officer or, on the other hand, it may have been a reference to some matters of potential mitigation. Sometimes a Court of Appeal can readily interpret obscure parts in the reasoning below but we feel that the learned Magistrate’s refusal (as we take it) to consider that mitigation was relevant (even accepting the possible but speculative significance of his reduction of Angitalo’s sentence from the maximum) is so substantial an error of law that we cannot give this obscure reference a favourable interpretation from the respondent’s point of view.

The correct way of dealing with mitigation is to consider whether, all matters of mitigation having been taken into consideration, the case nevertheless falls within the most serious class of case justifying the imposition of the maximum penalty or, when applying the totality test, the arithmetical aggregate should be reduced. As Brown J accepted, the strong language of the learned Magistrate indeed erred in conveying the notion that, so serious were the appellants’ offences that no consideration should be given to mitigation at all.

It might well have been open to the learned Magistrate to conclude, after considering all the matters urged in mitigation, that the offences involving violence or implicit threats of violence were, nevertheless, in the most serious class of case and that the total should was not excessive. But, with respect, it was a serious error of law to decline to consider any matters of mitigation as in principle irrelevant at the outset. The prosecution did not seek to argue that, nevertheless, no substantial miscarriage of justice occurred (see s22(6) of the Court of Appeal Act). It follows that the appeals must be upheld upon this ground also unless there was no miscarriage of justice.

The matters relied on for mitigation are as follows. So far as Angitalo is concerned, he was about 70 years of age, had no previous convictions, was a married man with 10 children, 5 of whom were at school and had been significantly involved in community affairs for some time. It appears that he also suffered from a duodenal ulcer and chronic asthma. In Basifako’s case, he was 31 years old, had no previous convictions, was married with three children of whom the youngest was but one month old. Ongainao also had no prior offences. He was 33 at the time of the offences.

We feel bound to say that, even taking these matters into account, in light of the very serious character of the violence offences, they do not significantly reduce the culpability of the appellants or take the offences of offences of violence out of the category of the most serious class of case.

It follow that the appeals must be allowed and the sentences ordered to be served concurrently.

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