Bara v Reginam [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2018)

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

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Mwanesalua J )
COURT FILE NUMBER:	Criminal Appeal Case No. 36 of 2017 (On Appeal from High Court Criminal Case No. CRC 516 of 2016)
DATE OF HEARING:	1 May 2018
DATE OF JUDGMENT:	11 May 2018
THE COURT:	Goldsbrough P Hansen JA Young JA
PARTIES:	BARA -V- REGINAM
ADVOCATES: APPELLANT: RESPONDENT:	D. Kwalai F. Joel
KEY WORDS:
EXTEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	ALLOWED
PAGES	1- 8

1. This appeal against sentence arises from the sentence imposed on Bartholomew Bara (the Appellant) in the High Court on 3 October 2017 after he pleaded guilty to an offence under section 17 Money Laundering and Proceeds of Crime Act 2002 as amended. That offence is money laundering and is punishable on conviction with a maximum sentence of imprisonment for ten years or a fine. The sentence imposed was imprisonment for two years to begin at date of sentence.

2. The sentence imposed in the High Court followed a sentence imposed in the Honiara Magistrates’ Court for an offence of theft. For that offence of theft of $20,000 this Appellant was sentence to a period of imprisonment for twelve months. These two offences first appeared together in that magistrates’ court when a decision was taken that the theft offence would be tried and disposed of summarily and the money laundering offence would be disposed of in the High Court.

4. Invariably criminal charges are first brought to a magistrates’ court. From there, assuming those charges are not concluded there, decisions may be made to refer the matter to the High Court for trial or sentence. Some cases may not be tried in a magistrates’ court but only in the High Court. Some charges may be tried in either court. Some cases begin in a magistrates’ court but may be referred to the High Court having regard to matters going to sentence relating to the offender (as opposed to the offence). Those matters are committed for sentence as opposed to trial.

5. The power to commit for sentence arises after conviction and is governed by section 208 of the Criminal Procedure Code. The power arises only after conviction and only when the character and antecedents of the offender suggest the maximum available sentence may be inadequate. The power to commit for trial arises where the offence is only triable on an information in the High Court or where the magistrate considers that the allegation is one too serious to be tried summarily even though power to do so exists. Those offences are often referred to as either way offences. Theft is such an offence whereas as murder is an example of an offence only triable in the High Court on an information. This Court was told by counsel that money laundering may only be tried on information in the High Court.

6. The general rule on jurisdiction is contained in the Criminal Procedure Code and varies dependent upon the category of magistrate presiding and the maximum prescribed sentence. Importantly section 4 provides that jurisdiction “may” be exercised. It does not provide that jurisdiction must be exercised.

7. It is clear from this record that an error was made in, at first, committing the Appellant for sentence rather than for trial. That error was corrected, and the matter committed eventually for trial, but the error introduced an unfortunate delay in the trial process.

8. For a fuller discussion of the power to commit for sentence, as opposed to trial, see Selo v R 2017 SBCA. When considering whether to accept jurisdiction on the theft charge when the related money laundering charge was destined for the High Court, the magistrate should have declined jurisdiction for the theft charge for no reason other than the two charges should have been tried together. They arose from the same circumstances and were about the same money handled by the same person.

Indeed, if the principle laid down by this Court in R v Davies 2011 SBCA 8 had been applied by the Director of Prosecutions there would have been no second charge of money laundering. In Davies it was said that:-

“Persons who obtain money or other property dishonestly usually do so in order to make use of it or its proceeds. Such use is often unworthy, and is routinely before a sentencing court as part of the story on which it is asked to consider the nature and level of criminality involved. To garnish what has sometimes been called a “predicate” offence of dishonesty with a charge of money laundering often adds nothing to what a court needs for that task.”

9. After a most public and violent bank robbery where $4 million dollars was taken from a commercial bank in the centre of Honiara in broad daylight, a motor vehicle used in that robbery was abandoned still containing proceeds of that crime.

10. There is no suggestion of any involvement of the Appellant in that robbery. He simply chanced upon the abandoned vehicle and stole $20,000 from it. He used some of that $20,000 to buy a car. That car has been recovered and was at the time of sentence in police custody. The theft charge covered his stealing of the money and the money laundering charge covered his use of that money after he stole it.

11. Any person who steals money and then disposes of that money in some way is by definition guilty of at least two offences, theft and laundering. That the criminal behaviour is presented as two, rather than one, charges does not make the overall criminality more or less, as it remains the same.

12. Three cases were referred to at the sentencing hearing to assist. Money laundering is a relatively new offence so few authorities exist. R v Davies (above) is an example similar to this where a car was bought with money obtained by deception. This court said, in addition to the advice not to charge both matters when the factual circumstances of both charges substantially overlap, that any sentences should necessarily be concurrent and need not necessarily be other than equal.

13. In R v Bobongi 2010 SBHC 519 an effective sentence of nine years was imposed for fraud and laundering $1.7 million. Again, the sentences were ordered to be concurrent. In Idris v R 2008 SBHC 29 an effective four years was imposed for offence involving in excess of $100,000.

14. From these authorities a range of three to nine years imprisonment was identified by counsel before the sentencing judge. Consideration of the facts of the offending in those previous cases demonstrates that this offending was not such that any sentence for it should fall within that range. In the magistrates’ court the theft attracted a sentence of twelve months imprisonment. That, we consider, was at the time, an adequate guide for the judge to begin his sentencing process. Applying the guidelines in Davies at the very most a concurrent sentence would then be indicated.

15. With appropriate guidance, where available, a sentencing judge should identify a starting point. From the starting point there will be adjustment to take into proper account factors which make the offending more serious (aggravating features) or may serve to suggest that the sentence is too harsh, often more related to the offender than the offence (mitigating features). This requires the judge to set out what he regards as aggravating and mitigating when he intends to take them into account in the final sentence or reasons why he intends not to take them into account.

16. After identification of the aggravating and mitigating features and how they affect the starting point reference should be made to the effect, if applicable, of an early guilty plea. Where a discount is to be given that should be indicated. Where no discount is to be given a reason for that decision should also appear in remarks made on sentencing. Equally where no allowance is to be made for pre-sentence periods of custody served relating to the offending before the court reasons should be given. See Tii v R 2016 SBCA 14.

17. Finally, the totality of the sentence should be examined, to ensure that the end result properly reflect the criminality involved in the offending.

18. Following this sentencing structure, published sentencing remarks should include, inter alia, the identified starting point, aggravating and mitigating features, account taken of plea, the application of the totality principle and a discussion of credit for pre-sentence custody.

19. This was an opportunistic theft involving a relatively small amount of money committed by an offender who is young and who has no previous record of offending. It involved no violence or threat of violence. It was an offence against property. The two charges now brought could easily have been presented as one. Any sentence for either could reflect the seriousness of what happened. There should be no additional sentence artificially increasing the main sentence.

20. Because of the initial decision to separate these two charges it was almost inevitable that there would be error. At worst that would have been error going to conviction. As this case attracted guilty pleas that did not happen.

21. The sentence imposed in the magistrates’ court is not the subject of any appeal and therefore not before this court to review. The only sentence which we are at liberty to review is that appealed from the High Court. Nothing in this judgment should be taken as suggesting that the sentence imposed in the magistrates’ court is approved by this Court. It is clear, however, that no sentence imposed by the High Court should have increased the effective twelve-month period of imprisonment.

22. The power of this court on an appeal against sentence is governed by section 23 (3) of the Court of Appeal Act Cap 6. On an appeal against sentence, the Court of Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted by law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, or may dismiss the appeal or make such other order as they think just.

23. One such different sentence is discharge without conviction under section 35 of the Penal Code. That is available in any trial in the High Court where the court thinks that the charge against the accused person is proved but is of opinion that, having regard to the character, antecedents, health or mental condition of the accused or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment. Then, in the High Court, the matter does not proceed to conviction. Given the comments made by this court in Davies regarding charging decisions this disposal, we consider, would meet the justice of the circumstances.

24. The opportunity to be addressed by counsel on such a disposal on this appeal did not arise and whilst we doubt that counsel could argue against the position on this appeal we do not follow that route here because we have not heard submissions.

25. There was a guilty plea at an early stage. The Appellant pleaded guilty when asked in the magistrates’ court to both charges then again when asked in the High Court to this one charge.

26. The Appellant had spent time in pre-sentence custody for which he is entitled to credit unless otherwise determined. If he is to be denied credit, reasons must be given. In this case the Appellant had been in continuous custody since 28 April 2016 for this offending and had also prior to that date spent two months and seven days in pre-sentence custody.

27. In his sentencing remarks the judge made no reference to any starting point, aggravation, mitigation, effect of guilty plea or pre-sentence custody. He set out the agreed facts. In one line he imposed his sentence of imprisonment for two years beginning on that day. That, in our view, amounts to a serious failure to set out how the sentence was determined. It does not follow the dicta from either Davies nor Tii, supra.

28. The appeal is allowed. We ordered release of the Appellant at the rising of the Court on the day of this appeal hearing, with reasons to be given at a later date. The sentence of imprisonment for two years for money laundering is quashed and, given time already served, no separate penalty is now imposed.

Court of Appeal of Solomon Islands

Bara v Reginam [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2018)