Randy v Regina [2006] SBCA 3; CA-CRAC 020 of 2005 (25 May 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands – (Palmer CJ).
COURT FILE NO:	Criminal Appeal No. 20 of 2005
DATE OF HEARING:	Wednesday 17th May 2006
DATE OF JUDGMENT:	Thursday 25th May 2006
THE COURT:	Lord Slynn of Hadley P Williams JA. Ward JA
PARTIES:	IOANE LEVETI RANDY -V- REGINA
ADVOCATES: Appellant: Respondent:	G A Benn N Mirou
KEY WORDS:	Where the appellant was charged with 2 counts of arson and sentenced to 5 years imprisonment on each count as well as being sentenced to 2 years imprisonment for being a member of an unlawful society (GLF) – where these sentences were concurrent – whether with regard to mitigating features the sentence was manifestly excessive.
EX TEMPORE/RESERVED/ ALLOWED/DISMISSED:	Dismissed.
PAGES:	1 - 3

JUDGMENT OF THE COURT

The appellant was charged with two offences of arson contrary to section 319 (a) of the Penal Code in that between 16 and 18 June 2003 he wilfully set fire to two dwelling houses at Marasa Village in the Guadalcanal Province. He was also charged with being a member of an unlawful society namely the Guadalcanal Liberation Front ('GLF') between March and June 2003 contrary to section 68 (a) of the Penal Code. Before the Magistrate he pleaded not guilty.

On the occasion in question a group of GLF members (many or all of whom were armed) forced people from Marasa to leave their houses and to go down to the beach as hostages. They were kept there from the morning of Monday 16 June to the morning of 18 June 2003. There was clear evidence that the appellant had been seen in or near Marasa on the dates in question when he was carrying an SR 88 firearm; and that he has previously attended meetings of the GLF.

He subsequently admitted that he had set fire to the two houses. His defence was that he did so under duress. He had gone to Marasa for the sole purpose of taking food to his sister and his uncle and only learned that people had been taken to the beach when he was on the way. When he got to Marasa he tried to hide but was seen by a boy Francis who pointed the SR 88 gun at him. Francis and another boy James threatened him that he would be killed or shot if he did not join them or follow their orders to burn the houses, a plan he had not previously heard about. Francis and James kept a look out whilst the appellant and another boy went to burn the houses. He then returned home and subsequently admitted that he had burned the houses.

The Magistrate rejected his defence of duress. He further decided that the appellant should be committed to the High Court for sentence under section 208 (1) of the Criminal Procedure Code on the basis that greater punishment should be inflicted in respect of the offence than the Magistrate had power to inflict.

The case came before the Chief Justice on 11 April 2005. He recited the many factors relied on in mitigation. In the end he concluded that in all the circumstances a lead sentence of seven years was not excessive but that 'taking all relevant mitigating factors into account' the appropriate sentence for each of the arson charges was 5 years and for the membership of an unlawful society was 2 years. He ordered that they should run concurrently so that the total sentence should be 5 years.

The appellant appeals only against sentence and does so on the basis that it was 'manifestly excessive', that the Judge erred in law in failing to give appropriate credit for his admission of the offences and he had taken into account irrelevant considerations in determining the sentence.

It is true that in a number of cases in recent years in Solomon Islands the Court has imposed sentences in the region of three years for arson. But it is to be remembered that the facts of the arson and the motives for it can vary widely which is no doubt why the maximum is set at life imprisonment.

It is also true that there are here mitigating factors. He had no previous convictions, he readily admitted and apologised for the burning, he removed certain religious objects from one of the houses belonging to his uncle so as to protect them, the houses were empty. Prior to his arrest the appellant was the primary carer for his elderly mother. He was an active member of his church and a Sunday School teacher and whilst in prison he has behaved well. He was further on remand for 20 months. It seems that there is a real possibility of his rehabilitation. He will be eligible for release before the end of 2006. It may be, but no more, that if had not met Francis he would not have got into this position.

There is no doubt that the Chief Justice took the mitigating factors into account and this Court does the same.

The fact that the houses were empty is important but not the end of the story. Fire can spread and get out of control. Keeping the houses empty was only possible because the residents were detained on the beach as hostages for 48 hours. The appellant did not admit the offences as such. He pleaded not guilty even if his defence was limited to duress.

This Court rejects the contention that the Chief Justice took account of irrelevant considerations.

It is of course open to a judge who finds that there has been coercion not amounting to duress to fix the sentence on the basis of what he sees as the defendant’s true culpability (Hasan UKHL 2005 22 at p10). Here even if it can be said that it did not have to be 5 years, it is impossible to say that the sentence was 'manifestly excessive' not least when it is borne in mind that all sentences were made concurrent and that the period spent in custody is to be taken into account so that he will be eligible for release before the end of this year.

There are indications of genuine remorse and that he has learned something for this experience which will guide his future conduct. Even taking those into account these were very serious offences, destroying peoples homes and inconveniencing their lives.

This appeal is therefore dismissed.

Lord Slynn of Hadley P
Williams JA
Ward JA