Maelanga v Regina [2007] SBCA 8; CA-CRAC 2 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. 599 of 2005)
COURT FILE NUMBER:	Criminal Appeal No. 2 of 2007
DATE OF HEARING:	2 October 2007
DATE OF JUDGMENT:	16 October 2007
THE COURT:	Lord Slynn of Hadley P, McPherson JA Ward JA
PARTIES:	Mannesah Maelanga (Appellant) -v- Regina (Respondent)
ADVOCATES: Appellant: Respondent	I Fitzpatrick K Averre
KEY WORDS:
RESERVED/DISMISSED:	DISMISSED
PAGES:	9

JUDGMENT OF THE COURT

The respondent appeared in four separate trials in the Magistrates’ Court to face a total of ten offences. He was sentenced to terms of imprisonment for those offences which totalled eleven and a half years. He appealed to the High Court and the learned judge allowed the appeal against sentence substituting sentences which left the appellant having to serve a total of five years imprisonment. By the time the appeal was heard in the High Court, the appellant had served a substantial proportion of the five year sentence and the judge ordered that he be released immediately.

This is an appeal by the prosecution against the sentences passed by the appellate judge on the grounds that he erred in his application of the totality principle and that the total sentence is manifestly inadequate in the circumstances of this case.

The appellant was, at the time of the offences, a senior member of the Police Force and the offences were committed over a period of two and a half years from June 2000 to December 2002. They were serious offences and indicated a disgraceful course of conduct involving complicity with others, and an overt willingness to threaten and bully. Guns were used to emphasise the threats. The method involved threats of serious violence and the motive was all too clearly personal gain.

Despite his obvious knowledge of the criminality of what he had done, the appellant pleaded not guilty in all cases. Counsel for the appellant suggests this was simply to put the prosecution to proof. The records of the Magistrates’ Courts hearing do not support such a suggestion.

It is hard to see any possible mitigating factors in the offences or the manner in which the appellant had acted over that period.

It is not necessary to set out the actual details of the offences. Suffice to note that the sentences passed included three and a half years for demanding money with menaces and five years for a totally separate armed robbery.

The learned Chief Justice reduced the sentences by making them all concurrent thus limiting the total to the length of sentence ordered for the most serious offence; the five years ordered for robbery. He explained:

"Bearing in mind that the total sentence imposed should not be substantially over the normal level of sentence appropriate to the most serious offence and where he had been sentenced to five years for the most serious offence, being robbery, a total sentence of 11 years for all offences in my respectful view is simply manifestly excessive. There must be a clear light at the end of the tunnel for this prisoner so than having realised the error of his ways, reformed and being rehabilitated in prison, that he is not crushed by what would otherwise be an unjust and unnecessarily severe penalty. The total sentence of five years is more than adequate to drive home the point that all his errant ways and behaviour during the ethnic tension are not condoned by society and that he must return to the community a changed person, for if he returns, he can expect little sympathy from the courts.

The total sentence to be served therefore is 5 years with effect from 28 July 2004. He was arrested and remanded in custody in September 2003; convicted and sentenced on 19 March 2004 for the first of his offences. ... He would have served approximately 6 months in pre-trial detention. That period is to be taken into account.

Mr Averre referred me to a letter [referring] to the actions of this man in risking his own popularity and well being for the purposes of protecting police personnel during the rioting of other prisoners. This is clear evidence of a man that has reformed in prison and should be given every encouragement to re-integrate into society at the earliest opportunity. That happens to fall today and I am satisfied he should be released at the rising of the court."

It should be noted that, on the learned judge’s figures, the order for immediate release would have effectively reduced the total sentence by more that six months. However, with respect, his calculations are incorrect and, if the appellant had earned the maximum remission, he was due for release at about the time of the decision.
Earlier in his judgment, the learned judge described the manner in which he must apply the totality test:

"There are two stages to this test. The first is to see whether the total sentence is substantially over the normal level of sentence appropriate to the most serious offence for which the accused is being sentenced. If so, the total should be reduced to a level that is "just and appropriate". The second is to consider whether in the particular circumstances of the person being sentenced, it would be a crushing penalty. If so, the court should consider a reduction of the total even if the first test had been complied with."

Counsel for the appellant suggests this was an incorrect applicant of the principle. He refers to the headnote in the report of the High Court case of Bade v R [1988] 1988-1989 SILR 121:

"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 arise out of the same 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."

He also cites the earlier case of Augustine Laui v DPP [1987] SHBC 4 where the court stated:

"The so called "totality principle" ... applies in two ways. Where concurrent sentences have been passed because of the single transaction principle, the court must ensure the gravity of the offences is properly represented by the sentence for the principal offence. Where consecutive sentences are passed for a number of offences, the court must not just consider whether each sentence is appropriate for each offence but look also at the total to ensure it is not out of proportion to the overall circumstances. Where it does appear to be too great, the court should reduce the term of imprisonment by making some or all of the sentences concurrent and not by reducing the individual sentences below an appropriate level for the particular offence for, by doing so, the impression given on the subsequent record of convictions is of a series of relatively minor offences"

In Angitalo v R [2005] SBCA 5, this Court summarised this:

"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. ...

The fundamental underlying principle is that a sentence should reflect the true criminality involved in the offences, ... 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 the result adequately punishes the offender’s criminal conduct for the crimes actually committed."

Counsel’s complaint is that the judge in the present case appears incorrectly to have concluded that the total sentence must be the same as that for the most serious offence. If that is the meaning of the passage set out above, it is an incorrect application of the authorities. The total sentence may be more than the appropriate sentence for any individual offence charged where, for example, they form part of a single transaction or because they are all individually relatively minor. In many cases, the proper sentence may only be achieved by making some of the sentences consecutive. That would have been the appropriate course to have taken in the present case.

There is more substance in the second ground of appeal that the sentence is manifestly inadequate for the offences charged.

In many jurisdictions, offences of this gravity committed by a senior police officer over such a period and without the benefit of having pleaded guilty would merit a sentence considerably longer than five years. However, we note that the range of sentences in other cases from the same period would accord with the sentence in the present case.
However, even taking that into account, we consider that this sentence in undoubtedly lenient. Even set against the troubled situation prevailing in Solomon Islands at the time and bearing in mind the allowance the courts appear to have been giving for it, a total of seven years could not have been considered excessive. A senior police officer committing a series of similar offences without the background of ethnic tension seen here should expect a sentence of ten years or more.

As a general practice, the danger of passing sentences which are well below the established levels of sentence is that offenders, who commit similar offences will regard the lower sentences as showing a reduced seriousness in their offending. That would be an unfortunate result and would leave members of the public with a justified feeling that the courts are not adequately protecting them. The courts’ approach to sentencing should always be tempered with mercy but, equally, the court must remember that its duty is to ensure that the sentence passed is adequate. Whatever the mitigation, the principal duty of the courts is to protect the public. We consider that the time has come when the courts should order sentences more apposite to the offences even those which have arisen from the times of ethnic tension. In this case, that appears to be what the magistrates were trying to do and the reduction on appeal was clearly too great.

Having said that, we note that there was evidence before the learned judge in the High Court which suggested that there had been a genuine and profound change in the appellant’s life and attitude. He has now been out of prison for nine months and, in those circumstances, we do not consider we should send him back.

Counsel points out that this Court took a similar course in R v Maenu [2007] SBCA 4. The present case is considerably more serious. Our decision not to increase the sentence to a total of seven years and send the appellant back to prison to serve the balance is because subsequent events have provided clear evidence of what we consider is an exceptional attempt to re-order his life. It is for that reason and that reason only that we do not interfere.

This case should not be taken as suggesting that, once a person has been released from prison, the Court will not send him back. Where the sentence from which he has been released is clearly inadequate, his re-arrest to serve the balance will generally be the proper order.

The appeal is dismissed.

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