Regina v Paewa [2016] SBCA 25; SICOA-CRAC 8 of 2016 (14 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS ( PALMER CJ)
COURT FILE NUMBER:	CRIMINAL APPEAL CASE NO. 08 OF 2016 (ON APPEAL FROM HIGH COURT CRIMINAL CASE NO. 458 OF 2012)
DATE OF HEARING:	4 OCTOBER 2016
DATE OF JUDGMENT:	14 OCTOBER 2016
THE COURT:	GOLDSBROUGH P LUNABEK JA YOUNG JA
PARTIES:	REGINA APPELLANT - V - CHRISTIAN PAEWA RESPONDENT
ADVOCATES: APPELLANT: RESPONDENT:	Ronald Bei Talasasa with him M Suifa’asia Howard Lawry
KEY WORDS:	ACTIVATION OF SUSPENDED SENTENCE OF IMPRISONMENT- GENERAL RULE OF CONSECUTIVE SENTENCE NOT APPLICABLE IN THE CIRCUMSTANCE OF THIS CASE
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	DISMISSED
PAGES:	1 - 8

JUDGMENT OF THE COURT
Introduction

1. This is an appeal against a sentence order passed by the Sentencing Judge on the Appellant on 28^th April 2016.
   
2. On that date, His Lordship sentenced the Appellant as follows:
   1. Convict the Defendant (now Appellant) of the charge of grievous harm contrary to section 224 (a) of the Penal Code and imposed sentence of 4 years imprisonment.
   2. Activate the sentence of 18 months imprisonment imposed on convictions for Common Assault and Assault Causing Actual Body Harm.
   3. Direct that the two sentences to be made concurrent to each other. The total sentence of imprisonment to be served is therefore 4 years.
   4. The period spent in custody is to be taken into account.
      
3. The Appellant took issue with direction (iii) of the sentence order above and claimed the sentence was manifestly inadequate (S21 Court of Appeal Act).
   

Appeal ground and submissions

4. The ground of appeal is that His Lordship erred in law when he ordered the sentence of four years imprisonment to be made current with 18 months of imprisonment as imposed by the Magistrate’s Court in an earlier matter. The sentences of 18 months imprisonment were for separate and distinct offending from the conviction for Acts of Intended Grievous Harm and therefore the sentences of 4 years and 18 months imprisonment should have been consecutive.
   
5. The Appellant contended that his Lordship erred when he activated the 18 months suspended sentence of imprisonment and made it concurrent with the four years sentence of imprisonment on the latest offence while it should be made consecutive based on the case authorities. The case of Bade –v- Regina (1988 – 1989) SILR 121 was referred to this Court by the prosecution. In that case, Ward CJ stated the sentencing principles that:

“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 single 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.”

6. The Appellant contended that the modifications to the general rules suggested in the case of Bade v Regina referred to above, do not apply in this matter. In the present case, the Appellant contended that His Lordship had not properly considered the basis for ordering that the two sentences be made concurrent to each other, in that His Lordship after activating the sentence of 18 months, ordered the sentences to be made concurrent without further reasons.
   
7. We have read and heard the Respondent’s Counsel Submissions. We do not think they will assist the Court.
   

Discussion

8. We have no difficulty understanding what the Appellant’s Counsel contention is in principle in his submissions.
   
9. What we do not understand is how the complaint and the submissions of the Appellant are to be understood and considered in light of the regime set by sections 44 and 45 of the Penal Code Act. We set out these two provisions for ease of reference.
   
10. Section 44 deals with suspended sentence. It provides:

“44.(1) Subject to the provisions of subsections (2) and (3 ) of this section, a court which passes a sentence of imprisonment on any offender for a term not more than two years for any offence, may order-

(a) that the sentence shall not take effect during a period specified in the order; or

(b) that after the offender has served part of the sentence in prison, the remainder of the sentence shall not take effect during a period specified in the order,

unless during the period specified in the order, the offender commits another offence punishable with imprisonment and a court thereafter orders under section 45 that the original sentence shall take effect:

Provided, that the period specified in the order shall not be less than one year or more than two years.

(2) The provisions of subsection (1) of this section shall not apply where the offence involved the use or the illegal possession of a weapon.

(3) A court shall not deal with an offender by means of a suspended sentence unless the case appears to the court to be one in respect of which a sentence of imprisonment would have been appropriate in the absence of any power to suspend such a sentence by an order under subsection (1) of this section.

(4) A court which passes a suspended sentence on any offender for an offence shall not make a probation order in respect of another offence of which he is convicted before the court or for which he is dealt with by the court on the same occasion.

(5) Where a court passes a suspended sentence on an offender in respect of an offence and a term of imprisonment in respect or another offence the court shall direct that the suspended sentence be concurrent with the term of imprisonment.

(6) On passing a suspended sentence the court shall explain to the offender in ordinary language his liability under section 45, if during the period of suspension he commits a subsequent offence punishable with imprisonment.

11. Section 45 relates to subsequent offence during the period the sentence is suspended. It provides:

“45. (1) Subject to subsection (3) of this section, where an offender is convicted of a subsequent offence punishable with imprisonment committed during the period of suspension, the court before which he is convicted for the subsequent offence shall, unless the sentence has already taken effect, consider his case and deal with him by one of the following methods ÷

(a) order that the suspended sentence shall take effect with the original term unaltered;
(b) order that the sentence shall take effect with the substitution of a lesser term for the original term;
(c) by order vary the original order made under section 44 by substituting for the period specified therein a period expiring not later than two years from the date of the expiring variation; or
(d) make no order with respect to the suspended sentence, and a court shall make an order under paragraph (a) of this subsection unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons.

(2) Where a court deals with an offender in respect of a suspended sentence passed by another court, the court dealing with the offender shall notify the court which passed the suspended sentence of the manner in which the offender was dealt with.

(3) Where a Magistrate's Court deals with an offender during the period of suspension of a sentence passed by the High Court, the Magistrate shall, after conviction of the offender and before passing to sentence, commit him in custody to the High Court for sentencing.

12. In the hearing of this appeal, the Appellant Counsel when pressed by the Court accepted the following:
    • First, the prosecution initially did not know that the Appellant was subject to a suspended sentence of 18 months imprisonment. (This may explain the attached notes to the Respondent’s submissions sent by the Prosecution to the Defence to the effect that the Appellant did not have any previous conviction recorded against him).
    • Second, the prosecution only knew that the Appellant was under 18 months suspended sentence of imprisonment after the submissions were made to His Lordship on the new offence of Acts intended grievous harm.
    • Third, the prosecution did not make any submissions to His Lordship as to how the Court should deal with the activation of the 18 months suspended sentence of imprisonment.
    • Fourth, that the material information relating to the circumstances which have arisen since the suspended sentence was passed by the Magistrate’s Court in 2012, were not provided to His Lordship by the prosecution.
      
13. It becomes apparently clear, in this case, that unless the Court before which the Appellant is convicted for subsequent offence ( Here the High Court) is provided with relevant material information relating to the summary facts of the case which was the subject of the suspended sentence since the sentence was passed by the Magistrate’s Court in 2012 (apart from the previous convictions) , it is difficult for the sentencing Judge to consider the case of the Appellant and deal with him by one of the methods provided for under subsection (1), (a),(b),(c) and (d) of section 45.
    
14. We note that the Respondent was not given opportunity to make any submissions either on the activation of the suspended sentence and the circumstances which have arisen since the suspended sentence was passed in 2012.
    
15. We observe that this is a Crown appeal filed under section 21(1)(b) of the Court of Appeal Act and that taking the circumstances of this case and the way this case was dealt with in the Court below without the necessary assistance by the prosecution, it is not an appropriate case to apply the sentencing principles as submitted by the Appellant’s Counsel.
    
16. We are of the view that, in this case, since His Lordship was not given all the necessary material information required (apart from the records of the Appellant’s previous convictions) to appreciate all the circumstances which have arisen since the suspended sentence was passed by the Magistrate’s Court in 2012, His Lordship in assessing the circumstances of the case with the material information he had before him, was justified in the sentence he had passed on the Appellant on 28 April 2015. He was not in error.
    

Guidance on activation of suspended sentence of imprisonment when offence occurred during operational period

17. We consider that the following steps should be noted in future cases when implementing a suspended sentence of imprisonment:

1. The prosecution must inform the Court of the existence of a suspended prison sentence in any particular case.

(a) The prosecution should provide the Judge with a copy of the record of conviction and sentence, the Judge’s or Magistrate’s sentencing notes and a summary of facts of the suspended prison offences.
(b) The prosecution should advise the Judge whether they seek an order under S 45(1)(a) (b), (c) or (d).
(c) The defendant should advise the Judge whether the orders sought by the prosecution are opposed.
(d) Both the prosecution and defence should be invited to make submissions on the alternatives in S.45 (1).
(e) The court should first deal with the sentence for the new offence and then consider the suspended sentence under S.S45.

2. We accept the wording of S.45 (1) (d) is somewhat unclear. We are satisfied however that S.45 authorises a Judge, considering a suspended sentence to:

(a) Order the suspended sentence be activated and order the whole of the suspended sentence be consecutive on the new sentence.
(b) Order the suspended sentence be activated but order the whole of the suspended sentence be concurrent with the new sentence.
(c) Order the suspended sentence in part be activated and order that part of the suspended sentence be consecutive with the new sentence.
(d) Vary the original suspended sentence order by adding up to a further two years of suspension commencing from the date of the expiring variation.

3. The Judge should give reasons for his or her decision with respect to the suspended sentence keeping in mind the words of S.45 (1) (d).

Result

18. The appeal is therefore dismissed.
    

Goldsbrough P

Lunabek JA

Young JA