Wanefiolo v R [2021] SBCA 22; SICOA-CRAC 04 of 2020 (30 September 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Wanefiolo v R
Citation:
Decision date:	30 September 2021
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Maina J)
Court File Number(s):	04 of 2020/05 of 2020
Parties:	Jonathan Wanefiolo, Stanley Waneakwasia v Reginam
Hearing date(s):	Paper Hearing August 2021 Sitting
Place of delivery:
Judge(s):	Goldsbrough P Hansen JA Gavara-Nanu
Representation:	Alasia B and Hite L for Appellant Belapitu D and Tabepuda P for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 294 (1) (a) [cap26],
Cases cited:	Selo v Regina [2017] SBCA 17, Kelly v Director of Public Prosecutions [1991] SBCA 4, R v Kada and others SICOA CRC 35 of 2017
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-6

JUDGMENT OF THE COURT

1. Five men, Gebi Selo, the two appellants, Dudley Baemalia and Harry Lilimae were charged with robbery, contrary to s 294(1)(a) of the Penal Code Cap. 26. Selo was also charged with grievous bodily harm. The offences occurred as long ago as 26 January 2015. The appellants were sentenced to 11 years imprisonment by Maina PJ on the 24^th January 2020. They both appeal their sentences.

Background facts

2. The facts are fully canvased in the decision of this Court in Selo v Regina,^[1] and it is unnecessary to rehearse them at any length.
3. On 25 January 2015, Selo, the appellants and the other two accused, who are yet to be dealt with, met, and agreed on a plan to rob the Point Cruz branch of the Westpac Bank, being aware that bank officers would bring money out of the bank at certain times, to be transported to the Central Bank. It was a joint enterprise.
4. 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 bank. This branch of the bank, in Mendana Avenue in the centre of Honiara, is in a busy commercial area where many people can be expected to be going about their lawful business at that time of the day.
5. Shortly after the arrival of the gang’s car, the Westpac escort vehicle arrived and parked some metres in front of the car. Both vehicles were facing west. Selo was armed with a bush knife, and it was conceded by his counsel at sentencing, and on appeal, that others were also armed with bush knives.
6. 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.
7. 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.
8. 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. It is said that Wanefiolo stayed in the car during the incident while Waneakwasia got out and grabbed one of the boxes of money. He returned to the car with it.
9. 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 veered 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.
10. Police and villagers later retrieved the two stolen boxes and, of the $4 million, $295,000 was missing.
11. 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.
12. Selo was the first to be sentenced. On 8 February 2017 Mwanesalua DCJ sentenced him to eight years’ imprisonment for armed robbery, and five years’ imprisonment for grievous bodily harm, to be served concurrently. The sentences were to commence from the date of sentencing. Selo appealed his sentence.
13. In Selo, this Court considered the matter at length, referred to other authority and concluded (at para 42) that an appropriate starting point for the bank robbery on its own would be 15 years, and for the grievous bodily harm — noting the viciousness of the attack — 10 years, giving an overall starting point of 25 years. This Court noted that in reaching the starting point it would have taken a start point of 10 years for the bank robbery, increased by five years, to take into account the aggravating features set out in that decision. Taking a totality approach, the Court reached a starting point of 21 years, noted the very early guilty plea and the previous good record, and age, and allowed a discount of approximately one-third, giving an effective sentence of 14 years.
14. These two appellants were sentenced by Maina J on 24 January 2020. Like Selo they acknowledged their role in the robbery when first spoken to by the police. There is no real explanation for the delay in sentencing the appellants. Wherever possible joint offenders should be sentenced together for obvious reasons. In that case, the Judge concluded that a starting point for the bank robbery was 10 years, but for the seriousness of the case he would add two years. He then took into account the guilty pleas and other appropriate mitigating matters and reached an end sentence of 11 years’ imprisonment.

The appeal

15. Essentially, both appellants appeal on the same grounds. It is said the sentencing Judge erred by failing to give proper consideration to the principles of parity in view of the sentence imposed on Selo, and as a result there was no uniformity of sentence. It is further said that the discount afforded to the appellants was unfair and unjust and as a result the total sentence imposed was manifestly excessive. Finally, it is said that when considering the disparity of discount afforded to the appellants compared to Selo, the discount was disproportionate, which again led to the total sentence imposed as manifestly excessive.

Discussion

16. We of course accept that these two appellants did not face the grievous bodily harm charge faced by Selo. Nor did they engage in the vicious attack on the security guard which was carried out by Selo. However, this was a well-planned joint enterprise, and the aggravating features identified in Selo relating to the robbery apply to both these appellants. We reiterate those aggravating factors. This was a very serious case of armed robbery of a commercial bank during normal business hours. It was premeditated and involved weapons which it is clear the gang was prepared to use. The robbery was planned for Mendana Avenue in the heart of the Honiara commercial district. This was at a time when they were well aware there would be several innocent bystanders going about their lawful business, and they must also have been aware their actions could prove extremely dangerous to those bystanders. A very large sum of money was involved. As we noted in Selo, this was a more serious case than Kelly,^[2] which was also a case where a very large sum of money was deliberately targeted. This Court further noted in Selo that although the consequences for the victims in Kada were more serious,^[3] we were satisfied this case was just as serious as Kada and called for an appropriate sentencing response. It was for that reason this Court imposed the increased sentences on Selo.
17. As we have noted, the aggravating features for the armed robbery apply equally to these two appellants. We see no reason to depart from the starting point of 15 years for the robbery for the reasons stated in Selo. That is the starting point the judge should have adopted. If in fact it was accepted that Selo was a mastermind and these appellants were not as fully involved, that is a matter that could properly be taken into account as a mitigating factor. But it is not a ground to reduce the starting point in what was clearly a carefully planned joint enterprise.
18. However, having said the starting point should have been 15 years, we are satisfied the Judge has wrongly applied the reduction for the guilty pleas and mitigating factors in assessing a discount of only one year.
19. Like Selo, these appellants admitted their responsibility to the police at the initial interview. The fact that formal pleas were not taken until sometime later does not appear to be the responsibility of these appellants; rather it falls at the feet of lawyers on both sides and the justice system. Such delay should not be allowed to occur. In the circumstances, we consider a full allowance of one-third for the guilty would be appropriate for these appellants.
20. There are other factors, including their previous clear record. We also note that as the robbery unfolded it is apparent that their roles were somewhat lesser than Selo, noting that Waneakwasia might have been slightly more involved. For that and their previous clear records we would allow another year’s discount, making an overall discount of six years.
21. The appeal is allowed, and the sentence is set aside. This Court sentences both appellants to 9 years imprisonment to run from the date they were first put into custody.
22. We would add that if the remaining accused plead guilty and are to be sentence, absent some extraordinary circumstances, the starting point should be 15 years.

Goldsbrough P
Hansen JA
Gavara-Nanu JA

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^[1] Selo v Regina [2017] SBCA 17.
^[2] Kelly v Director of Public Prosecutions [1991] SBCA 4 CA-CRC001 of 191 (13 September 1991).
^[3] R v Kada and others SICOA CRC-35 of 2007.