Fiuadi v Reginam [1989] SBHC 17; [1988-1989] SILR 150 (12 December 1989)

[1988-1989] SILR 150

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 24 of 1989

EDWARD FIUADI

v

REGINAM

High Court of Solomon Islands
(Ward C.J.)
Criminal Appeal Case No. 24 of 1989

Hearing: 8 December 1989
Judgment: 12 December 1989

Appeal against sentence - larceny by servant - custodial sentence appropriate where breach of trust. circumstances in which court may consider suspending sentence.

Facts:

The appellant was employed by Marine Division as an engineer. He was seen on the roof of the Marine Office on Saturday evening removing a solar panel. The matter was reported and the appellant was later charged with larceny by servant and malicious damage. He was convicted following a trial in the Magistrates’ Court and was sentenced to a total of nine months imprisonment.

He appealed against both conviction and sentence.

Held:

(1) It is only in exceptional cases that an appellate court will interfere with findings of fact by a Magistrate. This was not such a case and the appeal against conviction would be dismissed.

(2) The appellant was in a position of trust. An employee, by the nature of his employment, always has the opportunity to steal his employer’s property. In any offence where a breach of trust is involved a sentence of imprisonment will always be appropriate.

(3) Where an accused is of previously good character the court should move on to consider whether to suspend the sentence.

(4) It is only in the most exceptional circumstances that it would be appropriate to suspend a sentence imposed for larceny by servant.

Appeal against conviction and sentence dismissed.

A. Radclyffe for the appellant
F. Mwanesalua, DPP, for the respondent

WARD C.J: On 31 October 1989 the appellant appeared before the Central Magistrates Court and pleaded not guilty to one charge of larceny by servant and one of malicious damage. He was convicted and sentenced to a total of nine months imprisonment on the two charges.

He now appeals against conviction and sentence on the following grounds;

1. That the conviction was against the weight of the evidence in that the prosecution failed to prove beyond reasonable doubt that the petitioner had the intention to steal and permanently deprive and to wilfully and unlawfully cause damage.

2. The sentence is excessive taking into account the petitioner’s character and work record and the effect of a custodial sentence on his career.

3. That the custodial sentence should have been suspended.

The facts of both offences arise from the same incident. The appellant, who works in the Marine Division as an engineer, was seen on the roof of the Marine Office one Saturday evening removing a solar panel. He was seen by a deckhand in the Marine Department who went to investigate because the appellant was making some noise. The matter was reported the following Monday and, on inspection, it was found that the electric cables had been cut.

The appellant gave evidence on oath in which he admitted the taking of the panel but, in relation to the larceny charge, denied any dishonesty or intention permanently to deprive and, in the damage charge, denied cutting the cables.

He explained he was the General Secretary of the Seamans’ Association and that he did this to make the bosses realise the members of the Seamans' Association had a grievance.

He was asked why he took the panel and the record continues;

“As Secretary of Association members regard me as boss to find out about things going missing. E.g. Michael (an officer) removed a stove to a private house Cortes (Principal Licensing Officer) stole 2 boxes.

My members complained of these matters. I didn’t tell Superintendent of Marine. I knew he’d turn down any complaint against an officer. My intention to apply procedure for my members. So that members would report me and I’d get chance to confront my bosses. I wanted everyone to find out. I didn’t hide, I made a lot of noise. Wouldn’t do that if intention to steal. I intended to be charged and then give Panel back. I accept I removed it but 1 didn’t mean to steal it. Cable is still there, I didn’t damage it. I saw officer, Michael and told him our complaints”

In cross examination he said;

“I hadn’t told bosses I wanted to take Panel, I just took it. Michael and Captain Bowman my bosses... Later removed it to wantok’s house. I didn’t report that either. I was waiting to be reported.....Wanted bosses to see what big bosses were doing to make them believe me. Was going to put it in YWCA Office but Helen said safer at her brothers house. Not hiding it, just for safekeeping. 1 told DPC Auki where it was. Collected it myself. I didn’t report to bosses at Marine they already knew.”

The learned Magistrate took very little time to dispose of that defence-

“...issue only as to intention. A question of credibility. I find it significant matter only mentioned once defendant knew police investigating case and I also find the story inherently preposterous. I found the defendant’s manner of telling it evasive, and in the end quite unconvincing. I do not believe him. I am sure on the evidence his intention was to steal”

That decision was based on his assessment of the witness. I have stated before that, in such a case, it is only in exceptional cases that the appellate court will interfere with a finding of fact by the Magistrate who had the advantage of having seen and heard the witness.

I see no reason in this case to interfere. There was substantial support in the appellant’s own evidence for the Magistrate’s description of this story as inherently preposterous. Despite the suggestion that the appellant was doing it to bring the grievance to the attention of his superiors, there was no mention of any previous attempt to raise it or of having told any of his members about the plan either in advance or subsequently. Neither was anyone asked to make the report. The property was removed and hidden from the officers in the Marine Department. The panel was removed just before the appellant went to Auki when, if this was to be reported so he could make a point to the authorities, he would have been better in Honiara to deal with it. The fact that he told the police was of little value because he only did so after he heard they were investigating it. Neither does he tell how he was intending to deal with the matter if no one had reported the theft.

As far as the malicious damage is concerned, the evidence was that the cables were cut. The appellant’s evidence on this was disbelieved by the learned magistrate. That was a decision he was in a position to make and I see no reason to interfere

The appeal against conviction is dismissed.

The appeal against sentence was based on the facts that the appellant had no previous convictions, he had a good work record and he had admitted all but the intention to steal.

As far as the last point is concerned, I give him no credit for that. He was clearly denying the offence and lied in order to do so. He could hardly deny the taking of the solar panel in view of the clear identification of him by the prosecution witness and his own return of the property to the police.

It was suggested in effect that the sentence of nine months imprisonment was excessively harsh and wrong in principle because, in view of his character and mitigation, it should have been suspended.

The principle involved here is that the appellant, as an employee of the Marine Department, was in a position of trust. Any offence of dishonesty is serious but, when it is committed by a person in a position of trust in breach of the trust placed in him, it is more serious.

An employee, by the nature of his employment, always has the opportunity to steal his employer’s property. The public service and all commercial undertakings can only function properly if they can rely on the loyalty and honesty of the people they employ.

It must be clearly understood that in any offence where a breach of trust is involved a sentence of imprisonment will always be appropriate.

In this case the appellant was a man of previously good character and, in such circumstances, the court should always move on to consider whether to suspend the sentence.

However, in cases of breach of trust, the deterrent aspect of the sentence is an important factor. The enormous majority of honest employees who resist the temptation to steal their employer’s property must see that those who succumb are punished. It is, therefore, only in the most exceptional circumstances that it would be appropriate to suspend a sentence of imprisonment imposed for larceny by servant. I see no such exceptional circumstance here and the appeal against sentence is dismissed.