Frank Paro v Regina [1993] SBHC 42; HC CRC 63 of 1993 (27 July 1993)

CRC, 63, 93.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 63 of 1993

FRANK PARO

v

REGINA

Hearing: 20 July 1993
Judgement: 27 July 1993

J. Remobatu for Appellant
J. Faga for Respondent

MURIA, CJ: This is an appeal against sentence. On 20 July 1993 I dismissed the appeal and said that I would publish my full reasons. That I now do so.

The appellant was convicted by the Magistrate's court at Auki on charges of Common Assault contrary to section 237 of Penal Code and using abusive words contrary to section 169(0) Penal Code. The learned Magistrate sentenced the accused to a fine of $100.00 in respect of the charge of Common Assault, in default of which, the accused was to serve 50 days imprisonment. As to the charge of Using Abusive words, the accused was sentenced to a fine of $10.00, in default of which the accused was to serve 5 days imprisonment. The appellant appealed against his sentence in respect of the Common Assault charge.

The grounds of appeal relied upon by Counsel for the appellant are:

(1) The Court failed to take into account mitigating factors of reconciliation made between your petitioner and the victim submitted to it by your petitioner.

(2) In view of (1) above, the fine of $100.00 imposed on your petitioner was excessive in the circumstances.

Before I deal with the grounds of appeal, I shall set out briefly the facts surrounding the case against the appellant. At about 7 o'clock in the evening on 7 April 1994 the victim left his plastic bag containing a stick of tobacco, 3 boxes of matches, a smoking paper and $13.00 cash at the front of the house of the Francis Sawane and then went into the house to have his shower. When the victim returned he found his plastic bag missing together with the items in it. He enquired of it and was told that the appellant had taken his plastic bag. The victim then approached the appellant who told the victim that he found the plastic bag in Mr. Sawane's garage. An argument ensued during which the Appellant became very angry and grabbed the victim by the shoulder and threw him to the ground. At that instance, another person by the name of Lino intervened to stop the Appellant who then turned around and swore at Lino saying in Pidgin: "You waitim me, You kaikai shit belong olketa ia, you fakem sister bilong you," that Lino should wait for him (the appellant) and that Lino was to eat the "shit" and Lino was to go and have sexual intercourse with his sister. After hearing the swearing, Lino reported the matter to the police who charged the appellant. The appellant pleaded guilty in the Magistrate’s Court on the charges of Common Assault and using Abusive Words.

On behalf of the appellant Mr. Remobatu contended that the fine of $100.00 was excessive in view of the compensation paid by the appellant in custom. Counsel submitted that the Magistrate failed to appreciate the fact that compensation had been paid by the appellant and that consequently should not give rise to a further punishment by way of a fine. Counsel further added that had there been no compensation paid, then the fine of $100.00 would be appropriate.

Implied in Counsel's argument is that the Magistrate failed to take into account the compensation paid by the appellant. However, when one turns to the record of the proceedings before the Court below, there is ample basis upon which this Court must disagree with counsel’s contention. The Magistrate clearly took into account the compensation paid. This is what he said:

"I also note that the defendant has dealt with the matter in custom upon payment of compensation, however the offence is quite common around this place and thus I consider sentence that could have some elements of deterrence."

No one would doubt that the compensation paid by the appellant was in the mind of the Magistrate when considering the appropriate sentence to be imposed on the appellant. No doubt the option of an imprisonment sentence was not appropriate in the case and so the Magistrate did not choose that option. Clearly he considered a fine would be appropriate in the circumstances bearing in mind the compensation already paid. But the level of fine of $100.00 imposed was to reflect some element of deterrence as the type of offence was prevalent in the area. Where, therefore, is the identifiable error in the sentencing process adopted by the Magistrate? The obvious answer is that there is none.

I feel the appellant was fortunate that he was fined $100.00 only. A sentence of one (1) months imprisonment would have been appropriate in his case. In this case I would not alter the sentence imposed by the Magistrate but simply confirm it.

The appeal is dismissed.

Sir John Muria

CHIEF JUSTICE