Selo v Regina [2017] SBCA 17; SICOA-CRAC 9003 of 2017 (13 October 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Mwanesalua DCJ)
COURT FILE NUMBER:	Criminal Appeal Case No. 9003 of 2017 (On Appeal from High Court Criminal Case No. 37 of 2016)
DATE OF HEARING:	4 October 2017
DATE OF JUDGMENT:	13 October 2017
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	GABI SELO - V - REGINA
ADVOCATES: APPELLANT: RESPONDENT:	Mr. H. Kausimae Mr. R. B. Talasasa & Ms F. Joel
KEY WORDS:	ARMED ROBBERY SENTENCING TARIFF
EXTEMPORE/RESERVED:	Reserved
ALLOWED	Allowed
PAGES	1- 7

JUDGMENT OF THE COURT

1. This is an appeal against an effective sentence of eight years imprisonment imposed on the appellant by Mwanesalua DCJ, following guilty pleas to charges of armed robbery and grievous bodily harm. The matter first came before this Court in the April 2017 session, where it had to be adjourned for various procedural matters to be addressed.
   
2. At that time, directions were given and we note with concern the significant delay on the part of the appellant’s counsel in complying with those directions.
   
3. We will turn first to those procedural matters.
   

Jurisdiction

4. Having read the submissions of the appellant and the respondent, we are now satisfied that the Magistrates Court does have jurisdiction to hear cases of armed robbery. It is clear from those submissions that the jurisdiction was created prior to independence. Pursuant to powers conferred by the Magistrates Court Act [Cap 20], the then Chief Justice, Davis CJ, made an order on 4 October 1977 conferring such jurisdiction on the Magistrates Court. It is called The Magistrates’ Court (Increase In Criminal Jurisdiction). Order 1977. (We note the order also extends jurisdiction for other named offences).
   
5. Ms Joel referred us to a later order issued by Sir John Muria CJ, dated 11 February 2003, conferring jurisdiction for armed robbery, and other offences, on a specific named magistrate. Quite clearly, this did not in any way revoke or vary the earlier order.
   
6. While there have been changes to the numbering of relevant legislation, the pre-independence order of Davis CJ remains, conferring the jurisdiction, and we need say nothing more on this point.
   
7. Another procedural matter was raised by the Court in the course of argument. It relates to the power of a magistrate to commit to the High Court for sentence, and is governed by s 208he Criminal Procedure Core Code [Cap. 7]. Where relevant, the section reads:

208. - (1) Where any person, not being less than eighteen years of agetried by a Magistrate’s Court for an offence which isch is punishable either by that court or by the High Court and such person is convicted by the Magistrate's Court of that offence, then, if on obtaining information as to the character and antecedents of such person the Magistrate’s Court is of the opinion that they are such that greater punishment should be inflicted in respect of the offence than such court has power to inflict, the Magistrate’s Court may, in lieu of dealing with such person in any manner in which it has power to deal with him, commit him in custody to the High Court for sentence in accordance with the following provisions of this section. (Our emphasis).

8. We now consider this section against what occurred in this case.
9. The appellant was charged on 24 February 2015 with armed robbery and occasioning grievous bodily harm. On 23 June 2015, he pleaded guilty in the Magistrates Court (i.e. he was tried in the Magistrates Court). On 4 November 2015 he was committed to the High Court for sentencing. That matter came before Kouhota PJ, who was concerned as to whether or not the appellant was properly committed to the High Court under s 208, and who referred the matter back to the Magistrates Court, in these terms, “for the accused to be re-arraign [sic] and the provision of Section 208 of the CPC to be complied with if accused is to be committed to the High Court for sentence, otherwise the Magistrate’s Court will have to deal with the matter under its jurisdiction.”
   
10. On 5 September 2016, the matter was again committed to the High Court for sentencing. On 2 February 2017 he was arraigned, and it is said he pleaded guilty to both counts, and sentencing and mitigation submissions were made, with the sentence being delivered on 8 February 2017. It is unclear from the record, when he had already pleaded in the Magistrates Court, how he could re-plead to the matters in the High Court.
    
11. It is clear that s 208 in its application is quite limited. The first step requires the magistrate to obtain information as to the character and to the antecedents of the accused person. This was apparently not done. It is common ground between counsel that the appellant had no previous convictions which was accepted as the triggering point for committal for sentence under s 208. Short of that consideration, the matter must be completed in the Magistrates Court. This Court considers that if the facts of a case are likely to warrant a sentence greater than that which may be imposed by the Magistrates Court pursuant to s 27 of the Magistrates Court’s Ordinance Cap 20, the appropriate course for both the Crown and the Magistrate is to ensure that the accused person is committed to the High Court for trial. Indeed it is essential to do so.
    
12. In his final submission, Mr Kausimae attempted to submit that effectively this Court should return the matter for sentencing in the Magistrates Court, or to apply the maximum levels of sentence available to that Court pursuant to s 27. It is sufficient to say that such a matter does not appear in the notice of appeal; it was not raised in front of Kouhota PJ on 5 May (noting that Mr Kausimae was absent); nor was it raised in front of Mwanesalua DCJ on 2 February; it was not raised in front of this Court in the April session; and was not raised directly by Mr Kausimae in this hearing until the Court itself raised the matter. It is not a live issue before this Court. We are dealing with an appeal based on the grounds put forward, which we will now turn to.
    

Facts

13. On 25 January 2015, the appellants met with others and discussed and agreed a plan to rob Westpac Bank (now BSP). They were aware that bank officers would bring money out of the bank at certain times to be transported to the central bank.
    
14. The next day, the group reassembled around 8 a.m., drank some beers and then drove to town in a car with tinted glass. The car was parked at the Western Bay Casino bus stop, outside the Westpac Bank. This is the Point Cruz branch of the bank, which is in Mendana Avenue in the centre of Honiara, a busy commercial area where many people can be expected to be going about their lawful business.
    
15. Shortly after the arrival of the gang’s car, the Westpac escort vehicle arrived and parked some metres in front of the car. Both cars were facing west. The appellant was armed with a bush knife, and it was conceded by his counsel that others were also armed with bush knives.
16. After a few minutes, the security guards brought the waiting boxes of money, totalling $4 million in two separate black suitcases, to the vehicle. They were accompanied by two bank officers.
    
17. As soon as the two security officers came from the bank, Selo ran up to them and pretended to cut the first security officer, who threw down his box and ran away. That box was dragged into the car.
    
18. The second security officer was an unfortunate and courageous man named Michael Malea. After Mr Malea put the box he was holding on the ground he ran towards Selo, trying to grab him. Selo attacked him viciously with the knife. The attack was so vicious, it completely amputated Mr Malea’s left hand, leaving only the thumb. His left elbow was also seriously injured.
    
19. The group took off in the vehicle at high speed with the boxes of money, but were spotted by a police vehicle at the Town Ground roundabout when they nearly collided with a passing vehicle. The police vehicle commenced a chase and finally caught up with the vehicle when it wheeled off the road, crashed, and overturned near a private home at Kakabona. The residents of Kakabona helped the police chase and capture some of the robbers. Others got away.
    
20. Police later retrieved the two stolen boxes, and of the $4 million, $295,000 was missing.
    
21. The appellant, Selo, was arrested on 23 February 2015, and placed in custody. He admitted his involvement in an interview on 24 February 2015, and as noted earlier pleaded guilty in the Magistrates Court on 23 June that year.
    

The High Court sentence

22. In his sentencing notes, Mwanesalua DCJ sets out the background facts from the agreed statement of facts, and then states:
    

[17] This accused has pleaded guilty to offences. The guilty plea saved expense of running a trial. It seemed that the offences committed by the accused arose from the same transaction.

[18] The accused has no previous convictions. He is a first offender, but his offences are both serious. He is sentenced to eight years’ imprisonment for armed robbery and five years’ imprisonment for grievous harm. The sentences are to be served concurrently. The sentences are to commence on 8 February 2017. Order accordingly.

The appeal

23. The three grounds listed state:
    

(i) That the sentence ought to commenced [sic] from the date he was taken into custody; and

(ii) the sentencing Judge made insufficient allowance for mitigating factors

(iii) the overall sentence is manifestly excessive in all of the circumstances.

Submissions

24. It was submitted that the appellant was entitled to have his sentence commence from the date he went into custody. It was further submitted that there was failure to give sufficient discount for his guilty plea, and for his previous clear record and remorse.
    
25. In the course of submissions, we referred Mr Kausimae to the Court of Appeal decision of Kelly, relied on by the Crown.^[1] In that case, a sentence of 12 years’ imprisonment was upheld by the Court of Appeal. Mr Kausimae conceded this case was worse than Kelly.
    
26. The Crown referred us to a number of High Court and Court of Appeal decisions, setting out a range of sentencing in varying circumstances for armed robbery and grievous bodily harm.
    
27. The respondent submitted that the sentencing cases show the tariff for serious armed robbery ranges from six to 14 years. Ms Joel stressed the seriousness of the offending, because it involved a gang robbing a commercial bank, and the offence was pre-planned. She also said it was carried out with violence, resulting in the security guard losing his arm. She said the sentence involved could not be said to be manifestly excessive.
    
28. In relation to grievous bodily harm, she referred to a number of authorities and said the sentencing tariff shows ranges from two to seven years.
    
29. In answer to questions from the Court, Ms Joel said that the sentence could in fact be considered lenient in this case. We questioned her as to what starting points the Crown would contend for the two offences. It was the Crown’s view that the starting point for the armed robbery should be between 10 and 12 years; and for the grievous bodily harm, eight years.
    

Decision

30. The summary of facts makes grim reading and highlights the seriousness of this offending.
    
31. While the High Court decisions are of assistance to us, where appellate decisions are available, it is more appropriate to rely on them and to refer the sentencing judge to them.
    
32. In Kelly,^[2] the case Mr Kausimae conceded was not as serious as this one, seven men from Bougainville arrived in the Shortland Islands. As an armed gang, they visited three villages and threatened villagers at gunpoint. On the island of Ovau, an armed robbery occurred when in the middle of the night seven people were awakened by the gang and told to line up on the beach. They were held at gunpoint, and subjected to threats and abuse. Kelly boasted of previous killings, and said he and his fellow gang members were “Bougainville Revolutionary Army”. The seven were told they would be taken hostage but, following negotiations, only one was taken as a hostage for the release of seven prisoners at Kaita. Some while later, the last man was released and returned to his colleagues with sufficient petrol for all of them to return to their homes at Korovau. Some petrol and shells were stolen. The gang faced a large number of charges.
    
33. The sentencing Court treated this as one transaction, accepting that the armed robbery was the most serious offence. The sentence on Kelly of 12 years’ imprisonment was upheld by the Court of Appeal, noting that he was the leader of the group.
    
34. In Kada ^[3], a case not referred to by counsel, the Crown appealed against sentences of four years and six months’ imprisonment for offences of causing grievous bodily harm and burglary. The sentences for the three offenders were the same, notwithstanding one of the appellants, Moon, had pleaded not guilty, was acquitted of two counts of attempted murder and one count of robbery, but convicted of the grievous bodily harm and the burglary offences.
    
35. Kada was an appalling case of a home invasion. A group of young men, including the respondents, went to the compound of a dwelling house in Honiara. The intention was to break into the house and steal monies. The three respondents were described as the ringleaders. Some of the young men were armed with bush knives and one with a kitchen knife. The respondents all took part in planning the burglary, and led the gang to the house. Ignoring barking dogs, they climbed the compound wall and went to the front door. A child came to investigate and was struck on the back of the neck with a bush knife. He was rendered a quadriplegic. His father was also attacked, and stabbed in the back, which led to him becoming a paraplegic.
    
36. Noting that none of the three appellants had struck the blows causing such grievous injuries this Court treated the three respondents differently, having regard to their differences in age and circumstances. Lulumai was significantly younger than the others, and the Court inferred he was influenced by them. His effective sentence was increased to nine years. Kada was 18 at the time of the offence, but pleaded guilty (as had Lulumai). His effective sentence was increased to nine years’ imprisonment. Moon, who had made attempts to rehabilitate himself, and had married while on bail, was found guilty following trial. He was aged 21. He was sentenced to an effective sentence of 15 years.
    
37. This is a most serious case of armed robbery of a commercial bank during normal business hours. It was premeditated and involved weapons which, it is clear, this gang were prepared to use. The appellant and his companion consciously planned a robbery in Mendana Avenue in the heart of the Honiara commercial district. They did so at a time when they must have been well aware a large number of innocent bystanders going about their lawful business would be present. They must have also been aware that their actions could prove dangerous to those bystanders. A very large sum of money was involved.
    
38. Added to that, when a security guard bravely tried to intervene, he was viciously attacked by this appellant, and his hand cut off. His victim impact statement makes traumatic reading.
    
39. We agree with Mr Kausimae’s concession that this case was more serious than Kelly, given it was a major bank robbery on the main thoroughfare of downtown Honiara during business hours. And although the consequences were more severe for the victims in Kada, we are satisfied that this planned bank robbery was as serious as, if not more serious than that appalling case. It calls for an appropriate sentencing response.
40. In imposing sentence, the first step is to arrive at an appropriate starting point for each of the offences the appellant pleaded guilty to. This was a task not undertaken by the learned Judge. The next step, again not undertaken by the sentencing Judge, is to consider the aggravating factors to reach an initial starting point. That must be considered against the well-established totality principle before mitigating factors are factored in.
    
41. In this case the Judge seems to have simply set out the Agreed Facts and no analysis of starting points or aggravating and mitigating factors has been undertaken.
    
42. We are quite satisfied that the appropriate starting point for the bank robbery on its own would be 15 years. For the grievous bodily harm, noting the viciousness of the attack, 10 years, giving an overall starting point of 25 years. In reaching that starting point, for the bank robbery we would have started at 10 years and increased it by five years to take into account the aggravating features set out above. For the grievous bodily harm, we would start at eight years, and increase it to 10 years because of the aggravating features of that particular offence, including the injuries to the victim.
    
43. Standing back and applying the totality principle, we consider an overall appropriate sentence before considering mitigating factors in this case would be somewhat lower than the combined starting points, and we consider 21 years to be appropriate.
    
44. For the very early guilty plea, which is to be commended, his previous good record and his age a discount of one third is appropriate, effectively reducing the matter to an effective sentence of 14 years.
    
45. In considering appeals against sentence, counsel should consider the seriousness of the offending, the sentence passed and the powers of this Court pursuant to s 23(3) of the Court of Appeal Act. Reference to Kelly and Kada should have made it plain that this appeal was misguided.
    
46. The judge states the sentence was to run from the date of sentencing. He has the right to do so but if a judge is not going to give a credit for time spent in custody he should give reasons.^[4] The appellant almost immediately upon apprehension admitted his role in this offending and pleaded guilty at an early stage. We are satisfied that the sentence should run from the date of arrest on the 23rd February 2015.
    
47. We quash the sentences below and sentence the appellant as follows :

Armed robbery 14 years.
Grievous bodily harm 10 years.
To be served concurrently. The sentences to commence from 23 February 2015.

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Goldsbrough P

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Ward JA
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Hansen JA

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^[1] Kelly v Director of Public Prosecutions [1991] SBCA 4 CA-CRC001 of 191 (13 September 1991).
^[2] Above, n 1.
^[3] R v Kada and others SICOA CRC-35 of 2007.
^[4] Tii v R SICOA 14 of 2016 Para 28.