Ela v Reginam [1988] SBHC 3; [1988-1989] SILR 134 (12 February 1988)

[1988-1989] SILR 134

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No 56 of 1987

JOHN INI ELA

v

REGINAM

High Court or Solomon Islands
(Ward C.J.)
Criminal Appeal Case No. S6 of 1987

Hearing: 16 February 1988
Judgment: 16 February 1988

Appeal against sentence - whether disparity between two offenders was wrong in principle - sentence for continued commission of similar offences.

Facts:

The Appellant was sentenced to a total of four years imprisonment for a series of offences of receiving and one of false pretences. The charge of false pretences related to a separate matter but the accused was sentenced to six months imprisonment concurrent on that charge. He appealed against sentence on a number of grounds but his main contention was that despite the fact that he was a minor participant in the offences he received the same sentence as the major party to the offences. He contended that the major party to the offence was also charged with forgery whilst he was charged only with receiving.

Held:

(1) In view of the evidence the learned Magistrate had good grounds to hold that the Appellant was the ringleader.

(2) The learned Magistrate also took the proper approach in taking into account numerous previous convictions recorded against the Appellant.

(3) Where a man continues to commit similar offences despite previous convictions, it shows a disregard for the courts and the punishment imposed in the past. The accused had numerous previous convictions for false pretences and the Magistrate should in the circumstances have made t the sentence for that offence consecutive to the sentences on the other counts.

Appeal dismissed. Sentences varied to the extent of making the six month sentence for false pretences consecutive thus making a total sentence of four and a half years.

Appellant in person
F. Mwanesalua, DPP, for the Respondent

WARD CJ: This is an appeal against sentence on a number of grounds. However the real basis of the appeal is that the Appellant contends he was a relatively minor participant in this series of offences and that David Lui, the major party to the offences, only received the same sentence whilst others received substantially less than the Appellant. He points out that he was only charged with receiving whilst Lui was charged also with forgery.

I must say that I agree with him that Lui’s sentence may have been a little lenient but I do not feel there is sufficient disparity to render his sentence wrong. The learned Magistrate having heard the whole case, formed the clear impression that this Appellant was the ringleader. I have read the evidence and he had good grounds for reaching that conclusion. I shall not interfere on that basis.

Equally, the learned Magistrate took note of the string of previous convictions that are recorded against the Appellant. All the other accused had the benefit of a good character but the Appellant had lost that. This was a proper approach by the Magistrate.

The Appellant also complains that he did not know if the mitigation was put forward properly because he did not understand English. I have read the record of the mitigation and he has been given an opportunity to say all he wishes in Pijin. He has raised no matter that was not canvassed before the learned Magistrate.

I do not accept that, in a case such as this, a total sentence of four years imprisonment is excessive and the appeal is dismissed.

However, now the Appellant has brought the matter before this Court, the whole question of sentence is at large. In considering the sentence as a whole, I feel the learned Magistrate did err in regard to one matter. Apart from the main series of offences, the Appellant pleaded guilty to a totally separate charge of false pretences. That offence was the same type as many of the Appellant’s previous convictions. For that, he was sentence to six months imprisonment but, no doubt bearing in mind the total sentence, the learned Magistrate ordered that it should run concurrently with the other sentences.

I feel that was too generous. Where a man continues to commit similar offences despite previous convictions, it shows a disregard for the courts and the punishments imposed in the past.

I shall vary the sentence to the extent that the six months imprisonment imposed on the count of false pretences shall be consecutive to the four years making a total sentence of four and a half years. To avoid any doubt, I repeat the Magistrate’s order that the total sentence is to run from the date the Appellant entered custody.