Lusibaea v Regina [2007] SBCA 7; CA-CRAC 3 of 2007 (16 October 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	Appeal from a judgment of the High Court of Solomon Islands (CRC No. 39 and 41 of 2007)
COURT FILE NUMBER:	Criminal Appeal No. 3 of 2007
DATE OF HEARING:	28 September 2007
DATE OF JUDGMENT:	16 October 2007
THE COURT:	Lord Slynn of Hadley P, McPherson JA Ward JA
PARTIES:	Jimmy Lusibaea (Appellant) -v- Regina (Respondent)
ADVOCATES: Appellant: Respondent:	Ms Gabby Brown Mr M Unagui
KEY WORDS:
RESERVED/DISMISSED:	ALLOWED
PAGES:	1 - 7

JUDGMENT OF THE COURT

The appellant was sentenced to five years imprisonment for robbery by the Central Magistrates’ Court on 28 July 2004. He appealed, with leave, out of time to the High Court against that sentence and the learned judge dismissed the appeal on 5 March 2007.

He now appeals to this Court on the following ground:

"That the learned appeal judge misdirected himself, in law, in so far as the finding concerning the deliberations of the learned Magistrate in the court of first instance as regards the time when the sentence imposed ought properly have commenced. The learned appeal judge having accepted that there was no consideration by the learned Magistrate of the time already spent in custody, ought properly have ordered that the sentence commence from the date the appellant went into custody, namely 16 October 2003. It was wrong in law for the Magistrate upon convicting and sentencing the Appellant not to backdate that sentence given the sentencing as regards the co-accused and the fact that this was a first conviction.

As a result of the said misdirections, or any or all of the matters referred to in this appeal, the learned judge erred in law."

That unnecessarily lengthy ground raises the single question of whether or not the sentence should have been backdated to take effect from the date the appellant was taken into custody.

It appears from the judgment that the appeal to the High Court had also raised the further ground that the sentence was manifestly excessive. The learned judge dismissed this in the following terms:

"Five years for a robbery where weapons were brandished and a substantial quantity of goods taken cannot be said to be manifestly excessive. The appellant is a first time offender and compensation was paid. The appellant is entitled to have those matters taken into account. The appellant is also entitled to have the time spent in custody taken into account. Even referring to the matters referred to in mitigation, I cannot conclude that five years is manifestly excessive."

We are told that the robbery was committed in concert with others. One of those had appealed against his sentence before the appeal in the present case was heard. The other man’s sentence was reduced by the learned Chief Justice to a total of five years imprisonment for this offence as well as a number of other serious offences not involving the present appellant for which concurrent sentences were ordered. The reduction was in accordance with the totality principle and it was also backdated to the time he entered custody.

This appellant was taken into custody on his arrest for this and other offences on 16 October 2003 and so he had already been detained for a little over nine months by the time he was sentenced by the magistrate. It also appears from the judgment that, after the Magistrates’ Court had sentenced the appellant and before this appeal was heard, the appellant had been sentenced for another of the offences for which he had been taken into custody on that date. In the later case, the sentencing court had backdated the sentence. We are advised that sentence had been passed by the same judge and he referred to the backdating in his appeal judgment in the present case:

"Whilst the period spent in custody on remand prior to the convictions should be taken into account and appears not to have been taken into account when this sentence was imposed, at this time – at the hearing of the appeal – the time in custody has already been taken into account. It was taken into account when this court sentenced the appellant on another matter. By that sentence, the period spent on remand prior to any conviction was taken into account. The ground, therefore, whilst a legitimate complaint at the time the sentence was imposed, loses a great deal of force by the time of the hearing of the appeal. Indeed, had it to have been otherwise, it may well be said that previous High Court sentence would not have been worded as it was."

Section 24(5) of the Penal Code clearly gives the sentencing court a discretion to backdate the sentence. The learned judge explained that, whilst he accepted the sentence should have been backdated, he felt that, as the overall sentence fell to be reconsidered on appeal, he could not accept that a total sentence of five years without any backdating was excessive.

Counsel for the respondent points out correctly that, whilst the principle of allowing for the time already spent in custody, either by a reduction of the total sentence ordered or by backdating the effective time it commences, should always be considered by the sentencing court, in cases where the period of custody relates to a number of offences, the discount cannot be repeatedly applied to each one.

In the case of R v Mc Hugh [1985] NSWLR 588, 590 Street CJ confirmed the desirability of backdating and the limitation on its use:

"It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence should be back-dated for an equivalent period." (Our emphasis)

Both the principle and the qualification were succinctly stated in the later English case of R v Governor of Brockhill Prison, ex P Evans [1977] QB 443,461:

"Time spent in custody in relation to the offences for which sentence is passed should serve to reduce the term to be served subject always to the condition that time can never be counted more than once."

The learned judge in this appeal clearly had that in mind when he referred to the backdating of the sentence previously appealed. He was correct to do so.

However, as this was an appeal from the Magistrates’ Court, the judge was limited to the sentencing power of the magistrate of five years imprisonment. Whilst his order complied with that restriction, we consider that the overall effect deserves further examination. The learned judge considered the sentence of sixty months for a robbery of this nature was not manifestly excessive but, by declining to backdate its commencement, the additional nine months spent in custody (for which there is no remission) makes this the equivalent of an order of seventy three and a half months imprisonment – a little over six years.

The other difficulty with an unswerving application of the passage quoted above from Evans case is that, where a man is arrested for a number of offences and sentenced for them all at the same time, any order that they be backdated will almost invariably apply to them all. We consider that, had the judge been sentencing both these offences together, and decided it was proper to backdate the starting date, it is probable that he would not have distinguished between them on that ground. In such a case, the five year term would have been reduced.

Furthermore, it must be borne in mind that the later sentence to which the backdating applied was for three years imprisonment. Although the learned judge made the later sentence concurrent with the sentence now being appealed, the reduction from the backdating was subsumed in the longer sentence and had no practical effect.
In all the circumstances, we feel the proper order in this case on its special facts is to allow the appeal and also backdate the commencement of the five year sentence to the date the appellant was taken into custody. Unfortunately that means the earliest release date has already passed and so, if he is serving no other sentence of imprisonment, we order his immediate release

Order:

Appeal allowed. Total sentence of 5 years confirmed but ordered to commence on 16 October 2003.

Lord Slynn of Hadley P
President of the Court of Appeal

McPherson JA
Member of the Court of Appeal

Ward JA
Member of the Court of Appeal