Regina v Lusibaea [2011] SBCA 2; Criminal appeal 16 of 2010 (9 May 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL

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

COURT FILE NUMBER: Criminal l Appeal Case No.16 of 2010 (On Appeal from High Court Criminal Case No.291 of 2007)

DATE OF HEARING: 4th May 2011
DATE OF JUDGMENT: 9th May 2011

THE COURT:
AULD P
McPHERSON, CBE, JA.
WILLIAMS JA.

PARTIES:

REGINA
Appellant

V

JIMMY LUSIBAEA
Respondent

ADVOCATES:
Appellant: Mr RONALD TALASASA and Ms ANDIE DRIU

Respondent: Mrs NUATALI TONGARUTU

KEY WORDS: CALCULATION OF SENTENCE BY REFERENCE TO EARLIEST DATE OF RELEASE ON PAROLE

RESERVED:

ALLOWED

PAGES: 1 – 5

JUDGMENT OF THE COURT

1. The sole issue raised by this appeal of the Crown is the proper starting date, taking into account time already spent in custody, for a total sentence of two years, nine months’ imprisonment imposed by Cameron J on Mr Jimmy Lusibaea on 30th November 2010 for offences of unlawful wounding and assaulting a police officer.

2. Mr Lusibaea committed the offences as long ago as 1st November 2000. But in the ten years that it took to bring him to conviction at the end of November 2010, he had been sentenced for on 28th July 2004 to five years’ imprisonment for robbery, later confirmed but back-dated by the Court of Appeal on 16th October 2007 (CRAC No 3 of 2007) to 16th October 2003, the date of his initial admission to custody in respect of the offence. In so ordering, the Court of Appeal stated that, as he had been eligible for release on 15th February 2007, he should be released immediately if not held in custody for any other reason. This is how the Court put it:

“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 when the appellant was taken into custody. Unfortunately that means the earliest release date has already passed and so, if he serving no other sentence of imprisonment, we order his immediate release.”

3. As Cameron J observed in his sentencing remarks, the practical effect of that back-dating on 16th October 2007 was to have entitled Mr Lusibaea to release on parole following service of two thirds (3 years, 4 months) of his five years’ sentence, assuming good behaviour. That would have been on 15th February 2007, some seven months before the Court of Appeal ruling, resulting as Cameron J concluded, in him having served about eight months longer in prison on the offence of robbery that he should have served.

4. Now, during those eight months, from about 15th February to 16th October 2007, Mr Lusibaea was also remanded in custody awaiting trial on the charges of unlawful wounding and assaulting a police officer, the subject of this appeal. He had been arrested and remanded in custody on 14th February 2007 and remained in custody until released on bail on 22nd October 2007, shortly after the Court of Appeal’s back-dating of the five years’ sentence for robbery. He was then remanded in custody for a period totalling 30 days awaiting trial and sentence on these offences, and for no other reason.

5. The effect of all that, Cameron J concluded, was to attribute the whole of the time Mr Lusibaea had been in custody from 15th February 2007 to 23rd October to the sentence of two years’ nine months’ imprisonment that he imposed, clearly on the assumption that he would have been entitled to release on parole on 15th February 2007. In so concluding, he observed:

“31. ... The effect of this backdating was that a release date from prison on parole of 15th February 2007 would have applied had the sentence been backdated from the outset. As the Court of Appeal decision was not given, though, until 16 October 2007, it meant that Jimmy Lusibaea spent approximately 8 months longer in prison on the robbery offence than he ought to have had. During those same 8 months Jimmy Lusibaea was also in custody on the charges relating to this case ...

32. ... The effect of the court of appeal’s decision is that he ought not to have been in prison on the robbery offence beyond 15 February 2007. I have not overlooked the fact that as well as being in custody after 15 February 2007 on these matters he was also being held in custody on two other unrelated matters. However, he was subsequently acquitted in respect of those two other matters and so he received no credit for the time he was in custody for them. A full credit is now appropriate. Any backdating of sentence would be for the equivalent of the 8 months 7 days period, 15th February 2007 to 23rd October 2007, already spent in custody on these matters. The backdating will not be for 12 months (to take account of the early release provisions relating to parole)[1] because the defendant was not a sentenced prisoner at that time in respect of these offence but was on remand.”

6. The 8 months, 7 days credit calculated by the Judge led him to back-date the sentence he imposed on 30th November 2010 to 11th March 2010.

7. Mr Ronald Talasasa, for the Crown drew the Court’s attention to the well-established principle that a court should only back-date sentence for time already spent in custody where it is exclusively referable to the offence in respect of which sentence is passed. He submitted that that was not the case here, and that the Judge should have had regard to the actuality that between 15th February and 16th October 2007 Mr Lusibaea had been serving a sentence of five years’ imprisonment for robbery as well as being remanded in custody awaiting trial on these offences. It was only later that the Court of Appeal retrospectively back-dated the start of the five years’ sentence so as to bring him with the period of eligibility to parole by 15th February 2007, so, he maintained, the period of custody from 16th February to 16th October 2007 was not exclusively referable to this offence. He submitted that there was, therefore, only a period of 30 days’ pre-sentence custody exclusively referable to these offences, with the result that the Judge should have back-dated the sentence only to 1st November 2010.

8. Mrs Nuatali Tongarutu, for Mr Lusibaea, submitted in support of Cameron J’s order and reasoning, that the Court of Appeal’s retrospective back-dating of his earliest release date on parole to 15th February 2007 reflected, with the advantage of hindsight, the credit to which he would have been entitled for good behaviour had the release date been considered at that time. That is, that during that period Mr Lusibaea would no longer have been serving a prison sentence for the robbery offence, but would have been in custody solely on account of his impending trial for the offences of unlawful wounding and assault of a police officer.

9. The issue raised by the appeal is in within a small compass and does not require great elaboration. In our view, the decision and reasoning of Cameron J and submissions by Mrs Tongarutu to like effect are correct. There is no reason - especially with the benefit of hindsight available to the Court of Appeal in October 2007 - to assume or even allow for the possibility that Mr Lusibaea would have forfeited his right to the full one third remission for good behaviour, for which section 38(1) of the Correctional Services Act 2007 provided, if the matter had fallen for review at the appropriate time for its consideration. In short, the Court of Appeal’s order in October 2007 retrospectively back-dating his earliest release entitlement from prison and ordering his immediate release on the robbery offence meant, as Cameron J observed, that he had spent some 8 months longer in prison for that offence than he ought to have done. He should not be treated in the calculation of his sentence on the present offences as if he had still been in prison for the robbery as well during that period. Otherwise, he would be denied the benefit of having taken into account the period served exclusively referable to the offences for which he is presently sentenced.

10. Accordingly, we dismiss the Crown’s appeal.

Sir Robin Auld
President

McPHERSON, CBE, JA
Member

WILLIAMS JA
Member

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^[1] provided by section 37(2) of the Correctional Services Act 2007