Ngina v Reginam [1987] SBHC 13; [1987] SILR 35 (18 June 1987)

[1987] SILR 35

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 26 of 1987

NGINA

v

REGINAM

High Court of Solomon Islands
(Ward C.J.)
Criminal Case No. 26 of 1987

Hearing: 16th June, 1987
Judgment: 18th June, 1987

Sentence - Member of Parliament - approach to effect of custodial sentence of six months or more (loss of seat under s.51 (1) of the Constitution)

Bias - whether Magistrate disqualified by having previously claimed damages for defamation from the accused - failure to raise at trial.

Sentence - fishing with explosives contrary to s.8 (2) (a) of the Fisheries Act - observations on maximum penalty.

Facts:

A magistrate sentenced the Appellant to a total of seven months’ imprisonment. He complained to the High Court inter alia that the sentence was excessive in view of the effect on him as an M.P. and that the magistrate should have disqualified himself as he had previously claimed damages for defamation from the Appellant.

Held:

1. The effect of imprisonment on a parliamentary career is to be considered in two stages; whether the court can properly keep the sentence below the critical six months, and if not, whether the sentence may still be reduced because of the accused’s position as an M.P.; in this case the offence clearly merited a sentence of more than six months, so that the mitigating effect of the loss of seat was gone.

2. No right minded member of the public would feel there was a real likelihood of bias any more than if the magistrate was trying a man he had previously convicted and sentenced; if the accused had felt there was even a remote chance of bias he would have raised it at the trial.

Observed:

Fishing with explosives is a very serious offence; the statutory sentence is woefully inadequate; the courts are right to imprison, and would be justified in imposing the maximum together with a fine and forfeiture where appropriate.

Andrew Radclyffe for the Appellant
Augustine Rose for the Respondent

WARD CJ: This is an appeal against a total sentence of seven months imprisonment imposed by the Principal Magistrate (Central) on 21st May, 1987.

The appellant was sentenced to four months imprisonment and $100 fine for an offence under section 8 (2) (a) of the Fisheries Act and three months imprisonment each for offences contrary to section 83 and section 224 (1) of the Penal Code. As the last two related to the same incident, those sentences were concurrent but consecutive to the sentence on count one.

This was an extremely well presented appeal on five grounds:

"1. That the sentence of 4 months on Count 1 is excessive as this is a first conviction for an offence of this nature, the value of the fish was not large and the petitioner pleaded guilty.

2. That the sentences of 6 months concurrent on Counts 2 and 3 are excessive taking into account all the circumstances of the offences.

3. The totality of the sentences is excessive taking into account all the circumstances of the case and in particular the effect of such a sentence on the petitioner who is a Member of Parliament under section 51(1) of the Constitution.

4. The learned principal magistrate should have disqualified himself from hearing these cases on the grounds that the petitioner had been convicted of an offence of criminal libel involving the said principal magistrate and the said magistrate had taken steps to obtain damages from the petitioner for defamation and that in all the circumstances there was a likelihood of bias giving rise to a sense of grievance on the part of the petitioner that he would receive an excessive sentence of imprisonment.

5. That too much weight was attached to the petitioner’s previous convictions when sentencing the petitioner."

At the outset of the trial in the lower court the appellant and two other accused were charged on count one with an offence under section 8(1) (a).

One man, Semoni, pleaded guilty whilst the others Samora and this appellant pleaded not guilty. However, before the end of the prosecution case and after the matter had been raised by the learned magistrate, the prosecution sought to substitute charges under section 8 (2) (a). Both accused then pleaded guilty to that charge.

When they were sentenced, this appellant received four months imprisonment and Samora three months. Semoni, who had no previous convictions and could expect some reduction for that and his plea of guilty from the outset also received three months for his offence under section 8(1)(a).

The appellant argues, however, that the disparity between Samora and him was unjustified.

The prosecution evidence against the appellant was that he was seen in a boat collecting fish after the explosion and was organising the storage. Two days later, the police searched his house and found explosive powder.

After mitigation for the appellant to the effect that he knew nothing of the dynamite until the explosion occurred, Semoni addressed the court and said "I was called by John Ngina. I threw the explosives."

When passing sentence, the learned magistrate said; "Fish were killed by an explosive device thrown in the water by Francis (Semoni). John (Ngina) and Peter (Samora) are convicted of being in possession of those fish and selling them. I accept that other villagers came after the explosion and helped themselves to dead fish ....... it is clear that John was the main mover being prepared with canoe and engine and eskies. The defendants were after quick profits."

The evidence that the appellant was the main mover was the fact he was there after the explosion, it was found he had explosives in his house two days later and he had threatened to use explosives the day before (the subject of count three) together with the comment by Semoni which was contrary to the appellant’s mitigation.

I feel the learned magistrate was wrong to sentence the appellant as the main mover on that. The magistrate having pointed out to the prosecution that the evidence did not support a charge under section 8(1)(a) and the appellant having then pleaded guilty to the lesser charge, he was entitled to expect to be sentenced accordingly or given the opportunity to adduce further evidence. The learned magistrate should not have taken a later disputed comment by a co-accused as evidence against the appellant and it appears he may have done so.

I allow the appeal to the extent that the sentence should be the same as that passed as Samora. Sentence of four months quashed and sentence of three months substituted.

Before passing from this count, some comment has been made on the seriousness of the practice of fishing with explosives. Counsel for the appellant sought to persuade this court that the fact these men were using explosives on their own reefs reduced the seriousness. Clearly it is more serious to poach on other peoples fishing grounds but, even when explosives are used on own, you are destroying much of the marine life for a long time and therefore destroying the fishing of all the owners of the reef including, of course, your children. This is a very serious offence and, despite the woefully inadequate sentence allowed under the Act, the courts are right to imprison in such cases. In such cases the courts would be justified in imposing the maximum together with a fine and forfeiture where appropriate.

Counts two and three referred to an incident the day before. The appellant and Samora went to collect a sewing machine that belonged to the appellant’s father and which he had been trying unsuccessfully to recover for some time. Samora had a knife and the appellant an axe. The appellant threatened the occupants of the house and cut the doorpost with the axe. He also threatened to blow up the house with dynamite.

Counsel has argued that these were unusual offences to charge and that it would be more usual to charge criminal trespass or going armed in public. I fail to see his objection. Clearly the offences charged were made out and the accused pleaded guilty to them.

Grounds two, three and five all relate to the sentence imposed and, before I pass to them, it is convenient to consider ground four - the allegation of bias. Counsel for the appellant agreed that, although the appellant had the benefit of legal representation at the trial, no objection was raised to the magistrate. The background to this complaint was that the appellant was guilty in 1985 of criminal libel against the magistrate who tried the cases the subject of this appeal. He was convicted in 1985 by another magistrate and fined.

A short time later, the magistrate who tried the present cases sent what was in effect a letter before action. In it he stated -

"You as the author of the (defamatory) statement are liable to me for damages. I am reluctant to commence proceedings and would rather settle the matter out of court. I have authority by the Public Service to commence action and will not hesitate to do so if an offer of settlement is not forthcoming within 7 days. I would be prepared to settle the matter upon payment of $500 made payable to the Central Magistrates Staff Club. A condition of settlement would be that the settlement itself would remain confidential between myself and you and your legal adviser ....."

It is agreed by counsel that, despite the strong tone of the letter, the appellant did not pay and the magistrate took no further steps to press his claim.

Counsel at first said he did not suggest the magistrate was biased but based his argument on the possibility this appellant may have felt he was biased. Later, however, he pointed to a passage in the record that he suggested showed the magistrate had taken on the cross examination of a prosecution witness who prior to that had given relatively innocuous evidence. This, he said, went beyond clarifying the evidence and did suggest actual bias. Furthermore, when dealing with the question of whether there had been waiver, he said this was a case where the magistrate should have considered disqualifying himself. Of course, if a magistrate is aware of bias in his attitude to a particular defendant, he should always disqualify himself but I cannot accept that he must consider whether the sensitivities of the accused man are such that he may possibly feel bias from some unspoken fear. There is no justification in the suggestion the magistrate should here have taken the initiative.

Passing to the main allegation of bias, Lord Denning’s test of whether right minded people would think there was a real likelihood of bias has been more recently stated by Daly CJ in the unreported case of Kamai v. Aldo, CLAC No. 17 of 1982 as "would a reasonable bystander conclude, having observed the proceedings, that justice has clearly been done".

Magistrates in communities as small as those in this country are frequently faced with a man whom they have tried before. They may have tried him more than once, they may have disbelieved him on oath and they may well have sentenced him before with words that suggest a strong view of his previous misdeeds and his honesty.

None of these matters of itself should be considered reason to disqualify the magistrate from trying the same man on another charge. Of course, if the magistrate did harbour malice or a grudge against the accused he should disqualify himself and this court will be sensitive where any impression of malice or bias has been displayed by a magistrate.

In this case the magistrate had been the victim of a libel. He had felt it strongly enough to consider further legal action. However, despite the accused’s disregard for the letter sent to him, the matter went no further. Now, more than a year later, it is suggested he is biased as a result.

I cannot accept that any right minded member of the public would feel there was a real likelihood of bias here any more than they would if the magistrate was trying a man whom he recognised as a man he had previously convicted and sentenced. As Lord Denning said, there must be a real likelihood of bias. Surmise or conjecture is not enough. I go further. The appellant is an intelligent and articulate man who was represented by counsel at the trial and had been in court a number of times before. Had he felt there was even a remote chance of bias, I have no doubt he would have asked his counsel to raise it at the trial. He did not do so.

I find no merit in this ground.

Grounds two and three deal with the severity of sentence and may be taken together because a consideration of the circumstances of the offences in counts two and three must include a consideration of the position of the appellant. He is a Member of Parliament and it is pointed out that, by receiving a sentence of more than six months, he will lose his entitlement to sit in the House.

Any man who seeks to place himself at the forefront of society by standing for Parliament carries a substantial responsibility. His conduct is seen as an example and many would follow that example. It is at once both an exciting and a challenging role. Properly exercised, it allows a member of Parliament to have a considerable influence on the attitudes and conduct of the public as a whole. Equally, when abused, it can have a detrimental effect magnified by the status of the man who abuses it. On the other hand, it is equally obvious that sentence of imprisonment will cause greater suffering to such a person than to many more ordinary people particularly where the sentence is of such a length that he will also lose his seat in Parliament.

That these matters were clearly in the mind of the learned principal magistrate when considering the appropriate penalty is shown by the following passages from his carefully explained sentencing judgment.

"....what is of great concern to this court is that the defendant, a leader within society, did not try and avoid confrontation and deal with a domestic matter by lawful means, that is, through the chiefs, local court, or other courts but, when either drunk or affected by drink armed himself with an axe and went to a situation making it worse... The defendant is an educated man and a leader of society. He more than others should set the standards within the law.... I take account that the defendant will suffer over and above the sentence imposed by this court."

It is also suggested in ground five that the court attached too much weight to the appellant’s previous convictions. Clearly, a court should not sentence a man on his past history. If a man has no previous convictions, he is entitled to urge the fact as a reason for a reduction in the sentence but, even when a man has many previous convictions, they should not increase the sentence that is appropriate to the offence although a bad record may prevent the court from making any allowance for good character. Between the two extremes are many factors that may decide the amount of reduction a court feels is appropriate. Thus a man with one minor conviction may still reasonably expect a lesser sentence than a co-accused with numerous convictions for similar crimes.

In this case, the appellant had appeared before the courts five times between 1973 and 1978. Four of those five offences involved violent or disorderly behaviour. There then followed five years without any conviction but, in 1983, he was sentenced to three months imprisonment for assault causing actual bodily harm and then, on 7th of January this year, he was fined for common assault. A mere three months after that last court appearance, he committed these offences. There is nothing in the record to suggest the learned principal magistrate increased the sentence because of that record but he would have been foolish to ignore it. I consider that such a record would have justified the court in making no reduction of the sentence appropriate for these offences. However, the magistrate was even at this stage, willing to see some good in the appellant. Having, quite properly, said, "The defendant is a man of violence as is displayed by his action and his previous convictions, the last conviction being only a matter of weeks from this event", he was still willing to add "I give credit for his good behaviour between 1978 and 1983 and I take into account that he will suffer over and above the sentence imposed by this court."

This was a disgraceful episode by a man who knew better. He deliberately set out to intimidate and did intimidate other people in order to recover the sewing machine. Had such conduct been displayed by a young man of no standing in the community, I have no doubt the court would not have hesitated to pass a sentence of imprisonment for well over one year. When the offence is committed by a man of standing who should know better, is it right to pass a sentence less than that? Furthermore, this man had been warned by the court only three months before and yet he continues to bully and frighten others. Of course the magistrate was right to allow for the enhanced effect a sentence of imprisonment (especially one of over six months) would have on this man but I am driven to the view that he allowed far too much for this factor.

The minimum sentence he should have considered for such an offence, bearing in mind a consecutive sentence of three months for the offence under the Fisheries Act and bearing in mind all the other mitigating factors, is one of twelve months imprisonment. In assessing that sentence, the effect on his Parliamentary career is considered in two stages. First the court must consider whether it could properly keep the sentence below the critical six months. If it does not, it must then consider whether the sentence might still be reduced because of his position as a Member of Parliament. It seems to me that, once he has committed an offence that so clearly merits a sentence of more than six months, the mitigating effect of the loss of his seat is already gone and will not be helped by any further reduction.

However, I do allow for the fact that, with a man in his position, the strains of such a sentence may be felt particularly acutely despite the impression given by his previous convictions and, out of mercy, would allow a reduction of two months for that.

The sentence of six months imprisonment on the offence contrary to section 224(1) of the Penal Code (Count three) is quashed and a sentence of ten months imprisonment substituted. The section for the offence contrary to section 83(a) (Count two) is to remain and to be concurrent with it.

The sentence on the offence contrary to section 8(2)(a) of the Fisheries Act is quashed and reduced to three months imprisonment consecutive to the sentence on counts two and three giving a total sentence of thirteen months imprisonment.