Roni v Regina [2008] SBCA 8; CA-CRAC 23 of 2007 (18 July 2008)

	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of Solomon Islands

NATURE OF JURISDICTION:	Appeal from a judgement of the High Court of Solomon Islands (CRC No. 478 of 2006)
COURT FILE NUMBER:	Criminal Appeal Number 23 of 2007
DATE OF HEARING:	9th July 2008
DATE OF JUDGMENT:	18th July 2008
THE COURT:	Sir Albert R. Palmer V-P,E. Goldsbrough JA, M. Adams JA.

PARTIES:	Walter Roni Appellant -v- Regina Respondent
ADVOCATES:
Appellant:	Mrs. Pasikala-Faasau
Respondent:	Ms. Christensen
ALLOWED/DISMISSED:	ALLOWED
PAGES:	9

The Appellant was convicted in the High Court on a charge of abduction contrary to section 251 of the Penal Code that on 27th May 2003 he abducted Francis Gemo in order that he may be subjected to grievous harm.

He was sentenced by the presiding Judge to a term of imprisonment of eight (8) years.

The brief facts agreed before the court was as follows. On 27 May 2003 the appellant together with two other men approached Francis Gemo ("the victim") at his cocoa shed and accused him of being a "spear", which meant a traitor. They then tied him up with his hand behind his back with bush rope and took him down a valley towards Verahue River. At a location near the river, they tied the victim to a tree. The other men in their company then began beating him up with fists and gun butts resulting in severe and permanent injuries to his body and eventual death.

Ground 1. Error of law in referring to matters which did not form part of the Crown’s case.

In her submissions before this Court, Mrs. Faasau for the appellant submits that the learned judge made references to matters which did not form part of the Crown’s case and thereby committed an error of law. These included the autopsy report on the body of the victim, which revealed he died from a gunshot wound to his upper right back in conjunction with blunt force trauma applied to the chest and jaw. She says the learned judge took those facts of being beaten up and shot dead as aggravating factors when passing sentence, when they were not part of the agreed facts and thereby exposed the appellant to a higher sentence.

We have carefully considered the passage relied on by learned Counsel but cannot be satisfied that what was submitted correctly reflected what was said or meant. We are of the view that the aggravating factors which his Lordship referred to were the deprivation of the victim’s right to liberty and freedom of movement under the Constitution, and being armed with a rifle and in the company of other men at the time of commission of offence.

The references to being beaten and shot dead by other persons in his company were in our view a recounting of the history of what happened after the abduction. It was a description of the events which took place that fateful day; an outline of the circumstances which occurred. The beating, shooting and death of the victim were direct events which followed the abduction. It was necessary to have regard to those factors to properly gauge the gravity of the offence and the duration of the abduction.

We find nothing in the material before this Court which supports any suggestion that the learned judge took such factors into account as making more serious the offence of abduction. We accept the submissions of Ms. Christensen that the learned judge did not sentence the appellant as if he had been convicted of the more serious offence of murder, or had intention to kill at the time of the abduction.

In any event he was entitled to make reference to the fact that the victim was subjected to beatings and suffered permanent damage for this is entirely consistent with the wording of the offence that he was abducted in order to be subjected to grievous harm. The beatings he incurred were foreseeable consequences of the abduction; they were inevitable. He was abducted after it had been confirmed that he was a spy, then taken to a tree, tied and beaten up. It was common knowledge that spies were normally subjected to severe beatings, torture and or killed. The beating in this instance thus was but a direct consequence of the abduction. We find nothing wrong in the learned judge’s reference to that fact. We reject this ground.

Ground 2. That the learned trial judge erred in law and fact in making findings of facts not supported by the Agreed Facts.

Under ground 2.1, Mrs. Faasau submits that the learned judge committed an error of law in finding that the victim died from gunshot trauma. She says this was not supported by the Agreed Facts and therefore it was not open to him to include this in his sentencing ruling.

However, as pointed out under ground 1, we find that the learned judge was not making reference to this as a separate finding of fact but in the context of recounting the history of events which occurred that day. That the victim died from a gunshot wound and blunt force trauma was never in issue. We are not satisfied this was a separate finding of fact other than an outline of the circumstances that flowed from the abduction and was never referred as an aggravating factor by the judge in his sentence. We reject this ground as well.

Ground 3. The learned trial judge erred in law in not giving credit for pre-trial custody when calculating sentence.

Mrs. Faasau submits that the approach taken in Regina v. K[1] where the period spent in pre-trial custody above 12 months should attract an appropriate discount. In Regina v. K the defendant, a juvenile, had spent a total of three years in pre-trial custody. The court in that case accepted and applied the approach taken in other Commonwealth jurisdictions where the period spent in pre-trial custody would be taken into account when calculating the time already spent and the final sentence. The Court allowed one third of the total of three years pre-trial custody period to be added to calculate the final sentence to be imposed. The defendant was then released into the care of a guardian to serve the rest of his term of 8 years on a charge of murder.

Mrs. Faasau says the learned judge should have given credit for the period spent in pre-trial custody in the same way taken by the court in Regina v. K and by failing to do that committed an error of law.

We are not satisfied however that any error of law was committed by the learned judge for the following reasons. First, the approach in Regina v. K was not binding on the learned judge being a court of parallel jurisdiction. Secondly, it is a matter of sentencing discretion whether the trial judge takes a similar approach or not. No material has been put to this Court which supports any suggestion that the fact he did not take the same approach amounted to an error of law.

"where an offender is being sentenced after having spent a substantial time in prison on remand, it is important to calculate the likely time in prison that would have been served had a sentence been imposed at the outset in order to make an appropriate allowance for the time served and ensure that the effect of the sentence will not be unduly harsh having regard to the time already spent in gaol."[3]

We are satisfied the learned judge fairly considered the fact of pre-trial custody into account and ordered that it be made effective from the date he was taken into custody. This ground must also be dismissed.

Mrs. Faasau says that the learned judge failed to take into sufficient consideration the fact of guilty plea entered by the appellant at the first opportunity and thereby erred in law. She says the learned judge had no basis on which to form the view that there was no evidence to show that the guilty plea entered stemmed from genuine remorse. The learned judge had held it was either due to the presence of overwhelming evidence against him or part of a plea bargain. He then went on to say that he will nevertheless give credit for the guilty plea as serving the public interest.

Was there basis for forming the view that the guilty plea was not indicative of remorse? We answer this in the affirmative. . There clearly had been a plea bargain in this case where the charge of murder was withdrawn after a plea of not guilty and only the abduction charge proceeded with when a guilty plea was entered. There is material before this Court which showed that death occurred as a direct consequence of the grievous injuries sustained from the severe beating sustained and the gun shot wound. The question whether prosecution will pursue a more serious charge or not is a matter for the Director of Public Prosecutions in his sole discretion to determine. Surely his Lordship was entitled to take judicial notice of that fact. It has never been denied that the victim had died from the injuries sustained.

While the principal basis on which a plea of guilty can be prayed in aid by way of mitigation as demonstrating in some cases true remorse on the part of the offender, the extent to which it is taken into account is a matter for the court to determine and dependent on the facts of each case. For instance, if the accused had indicated that he would be entering a guilty plea at the committal proceedings, or well before commencement of the trial. There are other factors too which a court has to take into account, such as the interests of society and striking a balance when considering how much discount to consider. In some instances it may be difficult to see how a defence can be run successfully on a not guilty plea. In such situations he cannot expect much by way of a discount.

In this case, the learned judge formed the view that there was an absence of genuine remorse and that the guilty plea had come about either through the existence of overwhelming evidence or a plea bargain. We form the view that he was entitled to make such finding on the material before him and accordingly not satisfied he had committed any error of law.

Learned Counsel also referred to the timeliness of the plea and says that the learned judge failed to take this factor into account. We take the view that this matter had been adequately dealt with by the learned judge in his reasons that there had been a plea bargain and that it was difficult to see how he could have run a defence in any event.

We are satisfied the learned judge was entitled to give some credit for the guilty plea in any event for saving state resources and satisfied that he committed no error therein. We dismiss this ground as well.

2.2 The appellant was acting as a leader of the GLF; he was not an ordinary member.

Mrs. Faasau says that this finding or conclusion by the trial judge was not supported by the agreed facts. The most which can be deduced from the submissions put before the trial judge were that of receiving instructions to interview the victim, following which he was abducted and subsequently tied to a tree awaiting the arrival of Francis Lela and Geddily Isa; undisputed commanders or leaders in GLF. It is not denied that the beating and shooting of the victim occurred after the arrival of these two leaders.

Ms. Christensen for the Crown submits on the other hand that the trial judge could properly infer that he was a leader in GLF from the following points:

Ms. Christensen submits in any event this finding did not form any part of determining the aggravating features of the offending nor the consideration of the appellant’s manner in joining the GLF as a mitigating factor.

We are not satisfied however that this is so. At page 3 of the sentence, the learned judge states:

"It seemed from the facts and the mitigation before the court that he was acting as one of the leaders of the GLF."

"This court is not persuaded that he committed this offence merely as an ordinary member of the GLF."

This court forms the view that the burden of proof in this instance was reversed by the learned judge and thereby committed an error of law. It is not for the defence to persuade him that the appellant was an ordinary member of the GLF; rather it is for the prosecution to demonstrate on the facts beyond reasonable doubt that the appellant was a leader in the GLF. There is a difference in saying that he is a leader of GLF as opposed to being a leader in the group which carried out the abduction. The appellant may have been a leader or someone with responsibility in the group but that does not necessarily make him a leader in the GLF. This distinction is demonstrated by the fact that the orders were not given by him but by Lela and Isa. If he were a leader of GLF, then he could command as much authority as Lela and Isa. Secondly, apart from the questioning, the abduction and being tied to a tree, the beating did not start until the arrival of Lela and Isa. The appellant did not initiate anything until he received instructions or orders from his superiors. That can hardly be said to be the position of someone who is a leader in the GLF. Rather that is more consistent with the being an ordinary member of the group.

We are satisfied the learned judge committed an error of law by making a finding which was not supported by the facts and thereby allowed himself to be swayed by that fact and exposed the appellant to a higher than normal sentence in the circumstances.

We have been referred to a number of cases[4] as to the range of sentences that would have been appropriate in the circumstances of this case. The learned judge felt the appropriate range for this case was 7 – 10 years. We are of the view that this range is too high. The upper scale should be reserved for the worst case of abduction. We are clearly not satisfied the facts of this case can fall into the category of the worst type of case and warranted the consideration of an upper range of sentences.

The case of Regina v. Pese (ibid) is distinguishable on the facts where a sentence of 7 years was imposed for abduction. The circumstances in that case were more serious. It involved the capture of the victim, stripping him naked and then having him beaten to death with sticks. The defendant participated in the beating. In this case, apart from the abduction, he did not participate in the beating or what followed thereafter.

In the circumstances we form the view that the starting point in this case would have been 6 years. Taking all aggravating factors into account, such as being armed with a rifle and in the company of others; his role in the abduction in taking and questioning the victim and tying him to a tree, and taking all the mitigating factors on the other hand into account, such as his guilty plea, being a first offender, no previous convictions, delay of 19 months in custody, a young adult, being 24 years at the time of commission of offence, we form the view that the appropriate sentence to impose in this case is one of 5 years.

Sir Albert R. Palmer
Chief Justice
Vice-President of the Court of Appeal of SI.

^[1] (2006) SBHC 53; HCSI-CRC 419 of 2005 (6 December 2006)
^[2] [2005] SBCA12; SICO-CRAC No. 1 of 2005
^[3] ibid page 3, para. 5; page 4 para. 1.
^[4] Regina v. Sam Waa (unreported Criminal Case, CRC 66/05); R. v. Anita and Akao CRC 129/04; R. v. Cawa and Others CRC 301 – 312 / 04; R. v. Pese HCSI-CRC 594/05.

Court of Appeal of Solomon Islands

Roni v Regina [2008] SBCA 8; CA-CRAC 23 of 2007 (18 July 2008)