Campbell v Reginam [1988] SBHC 4; [1988-1989] SILR 136 (15 March 1988)

[1988-1989] SILR 136

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 2 of 1988

WALLACE CAMPBELL

v

REGINAM

High Court or Solomon Islands
(Ward C.J.)
Criminal Appeal Case No.2 of 1988

Hearing: 14 March 1988
Judgment: 15 March 1988

Appeal against sentence - Juvenile Offenders Act - Conditional Discharge - Penal Code, s.35 - whether punishment can be attached to a conditional discharge.

Facts:

The Appellant, a young person, pleaded guilty to larceny of two tyres and was conditionally discharged and was further ordered to work five days picking up litter in Kira Kira under the supervision of the District Police Commander. The Appellant’s father appealed against sentence on the grounds that the order that his son do communal work for five days in front of the public was detrimental to his young character rather than acting as a future deterrent and further that the learned Magistrate was wrong in law to inflict punishment of five days communal work due to the extenuating circumstances of the case and that any condition should properly be imposed on the father as a parent.

Held:

(1) The good name of the family cannot help a person obtain a lesser sentence nor give him other special treatment.

(2) Section 16 of the Juvenile Offenders Act and section 35 of the Penal Code provide for circumstances in which conditional discharges may be imposed and under the latter section there is no power to impose any punishment.

(3) Whilst the wording of section 16(b) of the Juvenile Offenders Act is not worded in similar terms it cannot be intended to have a wider scope than section 35 of the Penal Code. Section 16(b) allows the Court to discharge the accused on his entering into a recognisance, with or without sureties.

Accordingly the appeal was allowed and the sentence quashed. In substitution therefore the Appellant was discharged on his entering into a recognisance of $50 for twelve months and his father was ordered to pay a fine of $50 payable within seven days in default one month imprisonment.

Appellant present with his father
J. Apaniai for the Respondent

WARD C.J: This is an appeal against a sentence ordered by the learned Principal Magistrate (Eastern) on 21 December 1987 when, on a plea of guilty to larceny of two tyres, he sentenced the Appellant, who is a young person, as follows:

“Discharge conditional on work 5 days picking up litter Kira Kira station before 31.12.87 under supervision of DPC or any officer he may appoint. Report, morning, evening at Police Station.”

The Appellant’s father has appeared and appealed on the following grounds:

1. That an order that his son do communal work for five days in front of the public is detrimental to his young character rather than acting as a future deterrent.

2. That the learned Magistrate was wrong in law to inflict a punishment of five days communal work due to the extenuating circumstances of the case that any condition should properly be imposed on the father as a parent.

Mr Campbell points out, on the first ground, that the Juvenile Offenders Act is intended to protect juveniles from publicity and, therefore, the imposition of a sentence that needs to be served in public is contrary to the spirit of the act.

The Act sets out to protect juvenile offenders from undue publicity at the trial and makes special provision for their treatment before and after the trial. In the latter case it restricts the orders a court may pass when sentencing a juvenile and regulates the manner in which he should be detained. It makes no provision for protection from publicity once the sentence is being served. However, I accept that, as the act restricts any publicity that would serve to identify the juvenile during and after trial even when convicted, it must be against the spirit of the Act to allow publicity of the punishment being served. It would be taking this principle to impossible lengths if every sentence lawfully passed was to be served in conditions of continuing secrecy.

On this same ground, Mr Campbell argues that, as his is a respected family in the area, it is wrong for his son to have to do such work because it is especially demeaning. Whilst I accept a punishment may have a more severe effect on such a person, I cannot accept it can ever be a valid reason for the court to pass an inappropriate sentence. If a family wishes to enjoy the respect of people in the area, it must achieve and maintain that respect by the conduct of its members. If a member fails in such conduct, he cannot then assume that the good name of the family he has let down will help him obtain a lesser sentence or any other special treatment.

Ground one fails.

Mr Campbell argued the second ground on a slightly different basis to the way it was set out in his notice of appeal. He suggested that the court could not include any punishment as a condition of a discharge, and that, once a juvenile is discharged, any further punishment must fall on the offender’s parent.

Mr Apaniai concedes the point on the basis that there is good common law authority, none of which he can cite, to say that the only condition a court may attach to a conditional discharge is that he must be of good behaviour. I am surprised he relies on the common law position when the matter is so clearly covered by our own statute law.

Section 16 of the Juvenile Offenders Act states that -

“Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt the court shall take into consideration the manner in which, under the provisions of this or any other Act or law enabling the court to deal with the case, the case should be dealt with, and, subject to such provisions, may deal with the case in any of the following ways or combination thereof, namely -

.........................

(b) by discharging the offender on his entering into a recognisance, with or without sureties ............”

The provision for a conditional discharge is found in section 35 of the Penal Code.

“35 Where, in any trial, the court thinks that the charge against the accused person is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge either absolutely or conditionally.”

It is clear that, under this section, there is no power to impose any punishment. I must accept that an order to pick up litter under supervision of a police officer is clearly a punishment.

Whilst the wording of section 16(b) of the Juvenile Offenders Act is not in the same terms, I cannot accept that it was intended to have a wider scope than section 35 of the Penal Code. On the contrary, I feel section 16(b) allows the court to discharge on the accused entering into a recognisance. The only other power given by the section is whether or not to order further sureties.

The appeal is allowed and the sentence quashed. I have considered the facts of the case and, in substitution, order that the Appellant be discharged on his entering into a recognisance of $50 for 12 months.

In addition, I order the Appellant’s father to pay a fine of $50 to be paid within seven days or the father to serve one month imprisonment in default.