Kemahaku v Regina [2011] SBCA 21; CA-CRAC 16 of 2011 (25 November 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL
NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Justice Apaniai)
COURT FILE NUMBER:	Criminal Appeal Case No. CA 16 of 2011- (On Appeal from High Court Criminal Case No. 103 of 2011)
DATE OF HEARING:	14 November 2011
DATE OF JUDGMENT:	25 November 2011
THE COURT:	Sir Robin Auld, P
	Sir John Hansen, JA
	Justice Gordon Ward, JA
PARTIES:	ARTHUR KEMAHAKU - Appellant
	-V-
	REGINA - Respondent
ADVOCATES:
Appellant:	L McSpeddon with W Ghemu
Respondent:	A Driu and A Kelesi
KEY WORDS:	Suspended sentence, good behaviour bond
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	ALLOWED
PAGES:	7

JUDGMENT OF THE COURT

[1] The appellant was charged with assault occasioning actual bodily harm and appeared before the Central Magistrate's Court on 25 February 2011. He pleaded guilty and, following an unsuccessful attempt to achieve reconciliation between the appellant, the victim and their families, he was sentenced to nine months imprisonment suspended for eighteen months on condition that he also enter a good behaviour bond in the sum of $500 for the same period.

[2] The agreed facts were that the victim and the son of the appellant, both of whom were juveniles, were fighting and had to be separated by another person. The mother of the victim then spoke to them to advise them to sort out their problems in custom as they were cousin brothers. The agreed facts continue:

"Suddenly the accused appeared from the front and struck the victim on the left side of his neck with an aluminium pipe about one metre in length. The victim then fell on the ground unconscious. At the same time the accused called to his wife and they left the scene with his son.

There was no medical report however the medical card of the victim revealed that the victim was admitted with suspected internal injury, can rotate back but painful on the side of his neck.

The parent of the victim during a witness conference held on 9 February 2011 revealed that the victim is still experiencing pain to his neck and at times it is swollen."

[3] The appellant was originally charged with attempted murder but, after a number of adjournments in the Magistrate's Court, that charge had been withdrawn and the charge of assault occasioning actual bodily harm substituted. He pleaded guilty to the lesser charge.

[4] The prosecution appealed to the High Court against that sentence on the single ground that the learned magistrate erred when he imposed a suspended sentence in breach of section 44 (2) of the Penal Code and sought an order ‘that the suspended sentence be substituted with a custodial sentence’.

[5] There was no dispute in the High Court that the order to suspend the sentence was in breach of section 44 (2) which prohibits the suspension of a sentence of imprisonment where the offence involved the use of a weapon. The learned judge agreed that the sentence should not have been suspended and, accordingly, “set aside the magistrate's court decision suspending the nine months prison sentence imposed on the respondent”.

[6] He then considered the present appellant’s submission that the case should either be sent back to the magistrate for sentencing or the judge should impose a non-custodial sentence. The judge continued, at paragraph 12:

"12. In my judgment, I cannot send the case back to the magistrate nor can I substitute another sentence for the nine months sentence imposed by the magistrate. No challenge has been made either by the appellant or the respondent to the nine months sentence imposed by the magistrate and therefore that sentence should stand. The only challenge is in relation to the suspension of that sentence. As stated in paragraph 12.6 by His Lordship, Palmer CJ, in the Pauia case [R v Linda Pauia, HRSI-CRC 171/08]:

‘The effect of a mistake where a suspended sentence is imposed when a magistrate has no power to suspend the sentence of imprisonment is that his order of suspension is a nullity but the sentence of imprisonment takes effect immediately’.

13. The magistrate in the present case has imposed a sentence of 9 months imprisonment after hearing a plea in mitigation. He was in a better position than me to make that decision. There is no sufficient material before me to show that the sentence is outside the normal range of sentences for that type of offence. Accordingly, the sentence of nine months must remain and must take effect immediately in accordance with the principle in the Paiua case."

[7] That decision has been appealed to this Court under section 293 of the Criminal Procedure Code on two grounds:

1. That his Lordship erred in finding that he was unable to remit the case to the Magistrate's Court for re-sentence; and

2. That his Lordship erred in finding that he was unable to substitute another sentence for the sentence imposed by the Magistrate's Court.

[8] Ms McSpeddon, for the appellant, points out that section 293 (1) provides:

"(1) At the hearing of an appeal, the High Court... may thereupon confirm, reverse or vary the decision of the Magistrate's Court, or may remit the matter with the opinion of the High Court, or may make such other order in the matter as to it may seem just, and may by such order exercise any power which the Magistrate's Court might have exercised."

[9] It is quite clear, as she submits, that the High Court in its appellate jurisdiction had the power to remit the matter to the Magistrate's Court with a direction that the magistrate reconsider the sentence.

[10] However, counsel further challenges the decision of the judge when, in paragraph 12, he applied the ruling in the Pauia case. She points out that section 293 (2) provides that, at the hearing of an appeal:

“... the High Court may, if it thinks that a different sentence should have been passed, quash the sentence passed by the Magistrate's Court and pass such other sentence... in substitution therefor as it thinks ought to have been passed.”

[11] She contends that this can only mean that, once the High Court considers a sentence is incorrect, even if only in part, the remedy is for the High Court to quash the whole sentence and replace it with the proper sentence. Thus in the present case, once the learned judge found that suspension had not been available to the magistrate, he should have quashed the sentence in its entirety. If he considered the remainder of the sentence was still appropriate, the correct course was to make a fresh order in those terms. Counsel submits that, far from being unable to vary the sentence as the judge concluded, he could and should have reassessed the sentence and substituted the sentence he considered proper.

[12] We agree that is the correct approach. The statement from the Pauia case set out in paragraph 12 of the judgment upon which the judge appears to have based his inability to substitute another sentence, simply describes the effect of finding that a sentence should not have been suspended in a case where the term of imprisonment remains unchanged.

[13] We are satisfied that, once the High Court has found an error in the sentence, it should quash the whole sentence. If, however, the judge considers that, once the error is corrected, the remainder of sentence should stand, he should make fresh order in those terms. Where the correction leaves a sentence which is clearly no longer adequate or appropriate, he should reconsider whether to pass a different sentence or remit the case to the lower court. Such a step will frequently be the necessary corollary to the removal of an order suspending a sentence of imprisonment.

[14] We note that the terms of paragraph 13 of the judgment, however, suggest that the learned judge may have accepted this proposition. Although in the preceding paragraph he said he could not send the case back nor substitute another sentence because the nine months sentence itself had not been challenged, in paragraph 13 he stated that he had insufficient material to consider whether it was outside the normal range of sentences for such an offence and, accordingly, the sentence of nine months must take effect immediately.

[15] Unfortunately, the learned judge’s statement that there had been no challenge to the nine months sentence is incorrect. The submissions the respondent had placed before the magistrate and repeated before the judge clearly did so by seeking the substitution of a non-custodial, or a shorter custodial, sentence in the light of the considerable matters in mitigation set out in support. The details of that mitigation in the magistrate’s record of the hearing on 25 February 2011 also gainsay his second reason (stated in paragraph 13) that he had insufficient material to consider whether it fell within the normal range of sentence. The nature and circumstances of assaults are so varied that most cases turn on their particular facts with the result that earlier cases are, therefore, unlikely to give much assistance.

[16] We shall return to the question of sentence but must first deal with preliminary objection which was raised by Ms Driu for the Crown. Counsel submits that the right of appeal to this Court does not allow further consideration of the sentence. The right to appeal is limited by the terms of section 22 of the Court of Appeal Act, subsection (1) of which allows appeal from a decision of the High Court in its appellate jurisdiction "on any ground of appeal which involves a question of law (not including severity of sentence)".

[17] Whilst Ms Driu does not challenge the appellant’s submission that the order of suspension was incorrectly made, she suggests that the consequential request for the High Court to impose a non-custodial sentence is a separate ground of appeal against the severity of sentence and is not an appeal on question of law and does not fall within section 22.

[18] The phrase ‘not including severity of sentence’ in section 22(1) is ambiguous and was considered by this Court in the cases of Elima, Hou, Angitalo and Gerea v R, [2004] Criminal Appeal No 23 0f 2004, 4 August 2005, where the same point had been taken by the Crown. The Court concluded that:

"... it would be strange if there were no right of appeal against an error of law leading to a particular sentence when section 22 (3) of the same Act recognises that where the Court of Appeal dismisses an appeal against conviction it may if it thinks that ‘such sentence was an unlawful one or was passed in consequence of an error of law, in which case it may impose such sentence in substitution therefor as it thinks proper’.

Moreover the provision of section 22 (1) does not state clearly that no appeal shall lie against severity of sentence where a question of law is raised. ... In our view it is open to the appellants to contend that there has been an error of law albeit this is one which leads to a submission that the sentence is too severe. ... In our view, however, the Court of Appeal has power to review the decision of the High Court where it finds that the sentence is the result of an error of law only.”

[19] The same considerations apply to the present case. There has been no dispute that the order suspending the sentence was passed in consequence of an error of law. Once the judge reached that decision, he had to quash the sentence and substitute another or remit the case to the magistrate. If he chose the former, it required a fresh look at the circumstances of the case in order to determine the proper sentence. The learned judge erred in concluding that, having quashed the sentence, he could not remit the case or consider the appellant’s submission that the sentence of nine months imprisonment was too severe if it was not suspended.

[20] One other aspect of the sentence passed by the magistrate is worthy of mention although it was not raised in the High Court or before us. The magistrate made the suspension conditional on the appellant entering a bond for his good behaviour. We consider that was inappropriate for two reasons.

[21] First, it was presumably made under section 32 of the Penal Code which provides, in subsections (1) and (2), the power to make such an order. However, there is a proviso to both sections that no such order shall be made where the defendant has been sentenced to a term of imprisonment of more than six months. Clearly such an order was not available in this case where the sentence was one of nine months imprisonment.

[22] Second, a breach of a good behaviour bond incurs a liability to pay the sum in which the defendant has been bound. In the present case, if the defendant should commit an offence during the period of suspension which results in the activation of sentence of imprisonment, he would also be in breach of his bond and liable to pay that financial penalty as well as being returned to prison.

[23] The purpose of a suspended sentence is to allow the defendant in an appropriate case to avoid prison but with the almost certain knowledge that, should he offend during the period of suspension, he will serve the sentence. It is the knowledge of the consequence of failure which is the deterrent and it is inappropriate to add a further consequence to the same breach.

[24] For the avoidance of doubt, our order that the sentence passed by the magistrate is quashed includes the cancellation of the bond.

[25] The appeal is allowed and the sentence ordered by the magistrate is quashed.

[26] We have considered the possibility of sending the case back to the magistrate to determine the appropriate sentence. However, the appellant has already served a substantial part of the sentence and it is possible that it will have been completed before the magistrate could hear the case. We also bear in mind that, as this was a plea of guilty, the magistrate heard no evidence and based his decision on the submissions of counsel. We have the record of the submissions and will, therefore, decide the issue of sentence.

[27] The two major aggravating factors in this case were the use of a weapon, albeit a relatively light aluminium curtain rod, and the fact that the assault was by a grown man on a juvenile. The appellant on the other hand had no previous convictions for violence, had pleaded guilty and had a good employment history. The offence was clearly totally out of character.

[28] Any person who uses a weapon to assault an unarmed victim must expect to receive a sentence of immediate imprisonment. In the present case, it is clear the defendant was angered by his belief that his son had been assaulted and injured by the other boy. However, by the time he struck the other boy, the fight had been stopped and so the assault was purely an act of reprisal.

[29] Those circumstances undoubtedly merited a sentence of imprisonment. Although the nature of the weapon used and the injuries inflicted place this case at the lower end of the penalty range, we consider a sentence of nine months was an appropriate penalty having allowed for various matters of mitigation, in particular, the appellant’s previous character and obvious contrition as shown by the plea of guilty. However, one further factor should be borne in mind. The magistrate’s error in ordering that the sentence should be suspended meant that, from 25 February to 28 June, 2011, the appellant believed that he would not be sent to prison and could, and no doubt did, try and put the case behind him. That meant that the order of the judge that he should be sent to prison was a hard additional blow caused by factors over which he had no control.

[30] In those circumstances, we feel it is now appropriate to order a sentence of seven months imprisonment.

Order

Appeal against a sentence of 9 months, suspended for 18 months and to enter into a good behaviour bond allowed so as to quash that sentence and substitute for it a sentence of seven month’s imprisonment.

Sir Robin Auld
President

Sir John Hansen , JA
Member

Gordon Ward, JA
Member