Nathaniel v R [2023] SBCA 35; SICOA-CRAC 9001 of 2023 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Eric Nathaniel Junior v R
Citation:
Decision date:	13 October 2023
Nature of Jurisdiction	Criminal
Court File Number(s):	9001 of 2023, 9002 of 2023, 9003 of 2023
Parties:	Eric Nathaniel Junior, Ben Farobo, Stanley Ramo v Rex
Hearing date(s):	6 October 2023
Place of delivery:
Judge(s):	Hansen President Gavara-Nanu JA Lawry JA
Representation:	B Harunari for Eric Nathaniel Junior D Kwalai for Ben Farobo F Kama for Stanley D Oligari for Respondents in 1of 2023and CR 3 of 2023 M Suifa’asia for Respondent in CR 2 of 2023
Catchwords:	Armed robbery Sentence
Words and phrases:
Legislation cited:	Penal Code S 293 (1),
Cases cited:	Selo v R [2017] SBCA 17
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed in CR 1 and 2 of 2023. Allowed in relation to CR 3 of 2023. 15 years imprisonment quashed and 11 years substituted
Pages:	1-8

Judgment of the Court

1. The appellants all pleaded guilty and were convicted on a charge of armed robbery contrary to s293 (1) of the Penal Code.

Facts

2. The appellants, along with two others not before the court, entered into a joint enterprise to rob a Chinese businessman. They obviously had information that he was to deposit a large sum of money (in fact, SPD 1 million) at a BSB Bank, formerly Westpac.
3. On the 16^th of January 2016 the complainant, Wilson Deng, parked very near the bank with an associate, and he got out of the car with a brown parcel, sealed with tape around it. The 3 appellants, and the other two men, went by car to the vicinity and were parked close by. Farobo was the driver. As Mr Deng went to the bank, the appellant Ramo went from his car and ran to the complainant, followed by Eric Junior and one of the other accused, not before the court, who was armed with a bush knife. Clearly Ramo was the first to attack Mr Deng. The appellant, Farobo, sat in the car and waited. Ramo grabbed the case, but the complainant kicked him and he fell down. He was kicked a second time and fell down again. The person accompanying the complainant ran out from the vehicle to assist him. During the course of the struggle, the complainant dropped the bag of money. It was picked up by Faiga, one of the accused not before the court, and thrown to Eric Junior, who threw it to Ramo. They ran to the waiting vehicle, got in and the vehicle was driven away by the appellant Farobo.
4. The money taken from Mr Deng of SPD 1 million consisted of SPD 800,000 in SPD 100 bills, and SPD 200,000 in SPD 50 bills. The appellant, Eric Junior, received SPD 200,000 and the police recovered SPD 180,400. Ramo received SPD 100,090 and the police recovered only SPD 4244. Farobo received SPD 85,000 and the police recovered SPD 45,000 of that. What happened to the rest of the money is not clear.

Sentencing submission

5. The Crown submitted the aggravating features of pre-meditation; that it was committed in a commercial area with many businesses and people present, notwithstanding which the appellants armed themselves with a bush knife; the incident caused fear to people and customers of the bank and surrounding businesses; and, it involved a large sum of money.
6. Counsel for Ramo submitted that he had no previous convictions that he co-operated with the police throughout and was remorseful. Counsel for Eric Junior said he had pleaded guilty to the armed robbery upon a plea bargain and asked the Court to take into account that he was 23 years old when he committed the offence, was now 29, and was the only boy born from the family of six children. Counsel for Farobo submitted and acknowledged the aggravating features being the weapon used, the loss of money, it was well planned and executed, but he submitted his client had a clear record and had a good chance of rehabilitation.
7. It is to be noted that in fact Ramo, notwithstanding the submission of his counsel, (not Mr Harunari), had previous convictions for demanding with menaces and burgling of a dwelling house in 2013 and 2016. Eric Junior had a previous conviction for a similar robbery, committed when on police bail for this offence, for which he was sentenced to four years’ imprisonment in 2021.

The sentencing

8. The Judge referred to the decision of this Court in Selo v R [2017] SBCA 17, where this Court took a starting point for the bank robbery alone of 15 years. The Judge concluded the money was for deposit in the bank, occurred in the vicinity of the bank and fell within the category of Selo. On that basis, he took a starting point of 15 years’ imprisonment. He referred to the fact of the large sum of money that had gone missing, the aggravating and mitigating factors, and then imposed a sentence of 14 years on Ramo, 15 years on Eric Junior and 15 years on Farobo. He directed the sentences were to commence from the day of each defendant being taken into or remanded in custody.

Submissions

9. Counsel for all three appellants submitted that this case was not as serious as Selo, and that the Judge had adopted a starting point that is too high. While accepting the aggravating features, they stressed the mitigating features and submitted for a much lower sentence. They said here there was only armed robbery and no other offence such as grievous bodily harm that was present in Selo. They all contended for a sentence of 9 years or below.
10. The respondent submitted this case was very similar to Selo, and sentences comparative to that could not be said to be out of range. They said the judge did take the correct starting point but accepted it was not clear what mitigating allowance had been made, especially in the case of Farobo. Ms Oligari suggested a one to two year reduction would be appropriate.

Discussion

11. We disagree that this case is significantly less serious than Selo. We are satisfied that this case is very similar to Selo. We understand it was outside the same bank as featured in Selo. This case also featured a gang of thugs premediating and planning a robbery. Premeditation is obvious from the fact they seemed to be aware Mr Deng would be depositing money that day. One of their number was armed with a bush knife and we are quite satisfied all those in the car would be aware of this and knew there was a strong possibility that it would be used in the course of the robbery. They also chose a time when it would be obvious there would be many members of the public who would be put at risk from there activities. The only significant difference is that no serious injuries were inflicted on the unfortunate victims. This seems to have been a matter of good fortune rather than restraint by the robbers and it did lead a nolle prosequi being tendered to the court in relation to the unlawful wounding all appellants faced.
12. There was a silly submission to the sentencing Judge that this was not a bank robbery, but rather a robbery that occurred outside a bank which, somehow, it was suggested, should lead to a lower sentence. We reject this totally. It falls completely into the category we discussed in Selo of a bank robbery, or the robbery of commercial premises, during business hours in a crowded commercial district. All of the comments we made in Selo are equally applicable here.
13. Indeed as we have noted this was the same bank building that featured in Selo. This armed robbery was so similar to Selo it would almost seem to have been a copycat robbery, especially as it was committed almost exactly just one year after Selo.
14. We are quite satisfied, based on Selo the judge adopted the correct starting point of 15 years imprisonment. We would also add that it is important that the sentence imposed on the three appellants should be strongly deterrent. This was a group robbery of a major bank in the middle of the CBD. It was committed with violence and a weapon was used. The protection of the public, especially in the CBD, must be reflected in the sentence. As well both Eric Junior and Ramo were recidivist offenders.
15. The appellants all submitted that the gross delay in them being sentenced should lead to a reduction in sentence. In the normal course of events that may be so. But the matters put before the Court on behalf of the respondent count against this. Eric Junior committed another armed robbery on bail. He breached his bail terms. Ramo was on bail for other offending when he committed this offence. And Farobo also breached bail terms. Because of these matters we do not think any allowance for the delay in sentencing is appropriate.
16. It was also argued for the appellants that the money recovered by the police was somehow a mitigating factor. That is a nonsense. It was simply the money that remained in their possession when they were arrested. It would only be in circumstances where a convicted person took active steps to recover the proceeds of crime or materially assisted the police in some other way that it would count as a mitigating factor warranting a lower sentence.
17. All three appellants also argue they should get a full allowance for their guilty pleas. Clearly, a guilty plea will normally warrant a significant discount. However, in this case these men faced two counts and were represented at an early stage. We accept it was not until Mr Harunari become involved when the file was assigned to him that discussions were entered into that ultimately led to count 2 not being proceeded with. But there was ample opportunity long before this for advice to be given and the indication of a guilty plea could have been conveyed to the respondent.
18. For that reason any allowance for the guilty plea could only be minimal for all 3 appellants.
19. We turn then to consider their individual circumstances.
20. Turning first to Eric Nathaniel Junior, there is little to be said in mitigation on his behalf. While on police bail for this offence, he committed a further armed robbery and was sentenced by Bird J to four years’ imprisonment. In fact the submissions of the respondent show that he breached bail on more than one occasion. The submission that somehow as a young man he had learned his lesson is nonsensical in the light of those circumstances.
21. We agree the previous conviction should not to be held as an aggravating feature in this case. He has already been penalized for that. But what that conviction, and the various breaches of bail, do is to negative any mitigation that may be available for a guilty plea or a clear record. For the reasons set out above we do not consider the judge erred in the final sentence he imposed on Eric Nathaniel Junior and his appeal is dismissed.
22. Despite a submission to the contrary Stanley Ramo does have previous convictions. Indeed he was, as he counsel accepted, on bail for a burglary charge when he committed this offence. We have noted above that Ramo lead the attack on Mr Deng. He was a full participant in this matter as we have noted there was little that could be taken into account in mitigation. Yet his sentence was set at 14 years. We can find nothing in the sentencing notes to explain this obvious discrepancy. But we note the respondent has not sought to have that sentence increased. Mr Ramo can consider himself somewhat fortunate. His appeal is dismissed.
23. We are unclear why the Judge seems to have equated Farobo with the other two appellants without further analysis. Essential to the plan was the use of a getaway vehicle driven by Farobo, and his role was an important one, but it was a lesser role than the other appellants. We consider there is a slightly lower level of criminal culpability. Although he breached bail he had a previous clear record and appears to be the only appellant where there is any real prospect of rehabilitation. Given his lesser role in the offending, and that he was not involved in the actual violence, and taking into account his previous clear record and the chance of rehabilitation, we reduce his sentence to one of 11 years’ imprisonment.

Outcome

1. The sentence on Eric Junior is confirmed at 15 years imprisonment. His appeal is dismissed.
2. The sentence of Stanley Ramo is confirmed at 14 years imprisonment. His appeal is dismissed.
3. In the case of Ben Farobo, his appeal is allowed and the sentence of 15 years imprisonment is quashed and he is sentenced to 11 years imprisonment.

24. Given the sentences for other unrelated offending and the various breaches of bail by all three appellants it is impossible for this court to ascertain the time they have spent in custody for this offence. We order that they should get a credit for any time spent in custody while on remand for this offending. That will have to be ascertained by the Corrections Department, along with the police and the DPP but should not include time spent in serving sentences for other crimes unrelated to this offending.

Hansen JA, (President)
Gavara-Nanu (JA)
Lawry (JA)