Fefele v Director of Public Prosecutions [1987] SBHC 5; HC-CRAC 005 of 1987 (23 February 1987)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 5 of 1987

ALICK FEFELE

-v-

DIRECTOR OF PUBLIC PROSECUTIONS

Hearing: 20 February 1987
Judgment: 23rd February 1987

A. Radclyffe for appellant
T. Kama for the respondent

WARD CJ: This is an appeal against conviction and sentence.

He appeared before the Principal Magistrate in Honiara on 23rd January 1987 and pleaded Not Guilty to a charge of robbery contrary to section 286(i) (a) of the Penal Code.

The grounds of appeal against conviction are-

1. That the learned magistrate was wrong in holding that section 8 of the Penal Code does not apply to this case.

2. That the facts as disclosed in evidence did not amount to robbery.

The facts, as found by the learned Magistrate, were that this accused asked the victim, a taxi driver, to drive to a lonely spot where he demanded $600 because he had been told the victim had sexual intercourse with his, the appellant's, wife. He slapped the victim and he held the handle of a knife that was tucked in his trousers.

The two came to the Education Office where the victim's passbook withdrawal slip was collected.

Whilst there, a police sergeant attended. He heard the demand, saw the defendant was armed and asked him to come to the Police Station to settle the matter. The defendant refused and continued his demand with threats. The learned Magistrate was satisfied the officer was afraid of the defendant's manner and possession of a knife. He went with the victim and the defendant to the bank where $200 was withdrawn and handed to the defendant. The sergeant, assisted by two constables, then arrested the defendant.

The appellant told the court that he refused to because he was settling the matter in custom. He didn't mean or intend to injure the victim and this was a bona fide compensation payment.

Counsel for the appellant urged that, if the accused believed the victim had sexual intercourse with his wife and he believed he was entitled to compensation, that would provide a defence but the court excluded it.

Section 8 of the Penal Code states:-

"A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be to done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud."

Property includes money and this section clearly provides a defence of honest claim of right.

In his summing up the learned Magistrate referred to the section and the fact that it includes money. He continued -

"The section is inapplicable in this case. For the section to be operative. The important element is the defendant's action are [sic] done in the exercise of an honest claim of right. In this case if the defendant had an honest belief why he did arm himself? Why did he take the man to an isolated place? Why did he lie? Why did he use force? Why did he not co-operative with the police? In custom the use of force is not accepted. He should have dealt with the claim by going through the chiefs. Why did he suddenly drop his claim from $600 to $200? Why did he threaten the man with death? All these matters destroy any suggestion that the defendant was acting in the exercise of an honest claim of right. His intention was clear from the outset, he was going to take a large amount of money from this victim by force and threats."

It is here that the appellant says the magistrate erred in law. He argues that it is not the way in which the money is obtained which is important and yet this is what the Magistrate looked at when deciding if it was an honest belief. Thus the court used evidence of the manner in which he took it to negative the claim of right.

Counsel refers to the case of R v. Skivington (1967) 1 AER 483, that was an appeal against the judge's direction to the jury that where, on a charge on robbery, the accused raised a defence of claim of right, he had to show he had an honest belief that he was entitled to the goods and also that he had an honest belief he was entitled to take them in the way in which he did.

The Court of Appeal held this was a misdirection. Lord Parker C.J. at page 484 reiterates the principle that a claim of right exists whenever a man honestly believes that he has a lawful claim, even though it may be completely unfounded in law or in fact and continues:-

"The question is whether that defence to larceny applies equally when the offence with which one is concerned is really an aggravated larceny, such as in this case of robbery, or whether the honest belief must extend to being entitled to take the money by force. In the opinion of the court, both on principle and on the cases, it is clear that it can be a defence. So far as principle is concerned, it can be stated in the simple form that larceny is an ingredient of robbery, and if the honest belief that a man has a claim of right is a defence to larceny, then it negatives one of the ingredients in the offence of robbery, without proof of which the full offence is not made out. That principle simply stated as such has been upheld in case after case."

Counsel for the appellant suggests that means the court must decide the question of claim or right to the stealing without looking at the means by which it was taken and only to consider those when and if he does not accept it was an honest belief.

That is an interpretation that strains commonsense. In deciding any issue, the magistrate must use all relevant matters available in the evidence. Of course, the violence here was an extension of the stealing to which claim of right was the defence but the very fact that he was willing to resort to such threats in order to pursue what he claimed was a genuine right must be a matter the magistrate might consider in assessing the accused's bona fides.

In the passage I have already quoted, the magistrate poses a series of questions the answers to which are perfectly capable of throwing a light on the accused's attitude of mind.

Before I pass from this point, counsel also pointed out that there was no evidence the accused had armed himself for the offence but simply that he had a knife with him already when he saw the victim's taxi. I accept that but I cannot feel, in the face of the overwhelming evidence providing the answers to the other questions, that this could have altered an inevitable decision that the accused was not acting in good faith.

The second ground is based on the fact that the police were present. How, in such a case, the argument goes, could a man be so frightened. He would not, if they were there, be put in such fear that he felt he had to hand the money over and that, whilst he may haves been reluctant, he was not forced to do so. Therefore, robbery was not made out.

Unfortunately that argument does not fit the facts of this case.

When referring to the incident at the Education office, the learned Magistrate, said-

"Why the sergeant did not arrest the defendant at that stage is beyond explanation. He made a number of excuses, about being married about the victim and others. I am satisfied that he was afraid of the defendant, the defendant’s manner and the possession of a Knife.... The P.C ...... says he did not arrest defendant as he was waiting for the officer in charge to give the order. He also admitted being afraid of the knife."

The picture of such timid police officers is hardly a credit to the force but, for the purposes of this appeal, it is significant because it shows that the appellant's attitude was sufficient to frighten police officers. The magistrate reasonably concluded it would equally frighten a member of the public who had already been slapped and threatened with death. In the face of such determination by the accused and such diffidence by the police, the magistrate could hardly be criticised for finding that the accused derived little or no security from the continuing but ineffectual presence of the timorous officers.

On the evidence before him, the learned magistrate did not accept the accused had an honest belief in his claim of right and convicted him of robbery of $200. I see no reason to interfere with that decision and the appeal against conviction is dismissed.

The appellant was sentenced to 4 years imprisonment the magistrate saying that the offence was committed in full view of many and therefore merited a deterrent sentence.

The appellant had been previously convicted of affray, assault twice, assault occasioning actual bodily harm and, in late 1984, had been sentenced to two years imprisonment for robbery.

The appeal is on the single ground "that the sentence was excessive in view of the failure of the police to prevent the commission of the offence." However in court, counsel also urged that recent publicity given to cases such as this had tended to make the courts look too much at the deterrent aspect of the penalty.

Whilst in his judgment the learned magistrate had limited his comments to the fact the officers were frightened, in sentencing the appellant he, understandably went further.

"In favour of the Defendant, I do accept that had the police officers' present acted immediately and arrested him, the full offence my not have been committed and he would be facing lesser charges. At the same time though, he had already got the victim alone and made the threats.

The Officers' conduct in this case is totally unjustifiable and they should be disciplined. This court had the day before stressed that Police Officers are there to uphold the laws of Solomon Islands. If an offence is committed they must act quickly and decisively. It is a sad, reflection on the force that officers will not 'go in' but always seem to 'hold back' or hesitate. A strong presence by the Police and decisive action by them can do much to stop this sort of offence and many more that are regularly coming before the Courts .... I can reduce this defendant's sentence in view of the Police's action but this defendant has previous convictions and has been convicted after trial."

Thus it is clear the learned magistrate did of the police on exactly the basis that counsel appellant.

I have to say that this is an over-generous approach. Whilst it is undoubtedly the duty of every police officer to intervene as soon as he can in such a case, his failure to do so, for what ever reason, can rarely become an excuse for the accused's criminality.

Many a criminal who has been stopped by police intervention has been able to mitigate by saying he did not complete the offence but it is false logic to suggest the converse would be to say that a man who completes the offence is less to blame because the police should have stopped him.

In this case, the appellant was advised by the officer that his conduct was against the law and that, if he wanted to settle it, he should go to the police station but the appellant chose to continue with his threats so effectively that the offence was completed. In the face of that warning, made the more significant by the fact that he had been previously been convicted more than once, his actions show a far more deliberate intent than most cases. I regard that as aggravating factor.

The magistrate referred to a deterrent sentence. If by that he meant one on the severe side of the "usual" sentence for such an offence, I cannot agree this falls in that category.

The magistrate was sentencing a man who had taken the victim to a lonely place to isolate him from help and had then struck him. He had with him a knife the presence of which added dramatically to the effect of the threats, whether he took it specifically for the offence or not. Having frightened the victim sufficiently, the accused was willing to keep up the terror for a considerable period of time in order to obtain the money. Finally the offence was committed only 10 months after his release from a 2 year sentence for robbery thus showing a clear disregard for the law.

Any robbery where the offender is armed with a knife even if it not used directly must result in a lengthy sentence. This appellant does not have the mitigation of a plea of guilty, he has long lost the benefit of a good character and he showed an unusual determination to complete the offence.

In addition to reducing the sentence because of the police failure, the magistrate accepted that the appellant may have been provoked to act as he did but then allowed his emotions to overtake his sense. I can only add that the appellant was indeed lucky to be sentenced by such an understanding magistrate. The sentence is a proper one for such an offence even without an element of deterrence.

Appeal against sentence dismissed.

(F.G.R. Ward)
CHIEF JUSTICE