Bock v Regina [1993] SBHC 56; HCSI-CRC 17 of 1993 (16 March 1993)

CRC, 17, 93.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.17 of 1993

MORRIS BOCK

-v-

REGINA

High Court of Solomon Islands
(Palmer J)
Criminal Case No.17 of 1993

Hearing: 16th March 1993
Judgment: 16th March 1993

A.Radclyff for Appellant
F.Mwanesalua for the Crown

JUDGMENT

PALMER: This is an appeal by 10 appellants against custodial sentence of 3 months each for offences against the Passports Act and a further custodial sentence of 6 months for Morris Bock on a charge under the Firearms and Ammunition Act.

All the Appellants have been charged under the section 11(1) of the Passports Act for leaving and entering Solomon Islands on various dates without possession of a valid passport.

A ‘passport’ is defined in that Act as “a current valid travel document which is issued by or on behalf of the Government of any country, containing a photograph and a personal description of the holder which purport to establish the identify and nationality or citizenship of the holder, or which gives a right of re-entry to the country.”

A passport is a formal travel document and is an essential document to hold when travelling overseas or to another country.

Most nations of the world and may be all require their citizens to hold a passport when going abroad. Most nations of the world also require other citizens of other countries entering the jurisdiction of their country to have a passport or some sort of certificate of identity or travel document.

A passport therefore generally speaking is one of the formal documents that an intending traveller abroad must have in his possession. A Solomon Islander therefore intending to travel to Papua New Guinea must have a passport.

In the case of Bougainville Island, it is in the jurisdiction of Papua New Guinea and therefore intending travellers to Bougainville must have proper documentation. These appellants have pleaded guilty to leaving and entering Solomon Island jurisdiction without being in possession of a valid passport.

The thrust of the learned Public Solicitor’s submissions on behalf of the Appellants is that the learned Magistrate failed to take proper account of the mitigating factors and secondly was wrong in treating their case as more serious in comparison with a foreigner who defies the laws of this country. He then proceeded to make mention of two recent cases involving ex-patriates who have committed certain offences against our Immigration laws.

In his mitigation on behalf of the appellants, one of the key points raised and drawn to the lower courts attention was the current prevailing practice in relation to people who live in the Shortlands and Choiseul area near the border between Papua New Guinea and Solomon Islands as to the travel between the island of Bougainville and the Shortlands area.

It is important to bear in mind that the island of Bougainville and the Shortland Islands and the North Western tip of Choiseul Island are separated by only a small stretch of water. A traveller from the Shortland group on a motorised canoe may take less than an hour to travel across that stretch. The Islands are visible on any clear day. What Mr. Radclyffe sought to point out was the prevailing practice of the people who live around that area. That for many years because of traditional, cultural and family ties the people of these islands have been regularly crossing the border for many years. And he gave the example that since independence in 1978, this is the first of its kind where local indigenous people of that area have been brought to the courts. He submits that there have been hundreds of border crossers without valid documents, but have not been brought to the courts. And to suddenly prosecute people is unfair.

I accept this is a logical and a reasonable submission. It would appear that the passport laws have not been strictly enforced, despite the existence of a Police post and immigration and customs offices at Korovou. It may have been intentional. This is not a criticism but a mere reiteration of the existing status of things near the border area. Mr. Radclyffe also made mention of Bougainvillians who it seems have also entered the country without proper documentation.

I note these examples are not defences or excuses. Rather I accept them as important mitigating factors that the court must consider when weighing sentence. The court cannot close its eyes to the circumstances surrounding the commission of these offences.

The essence of Mr. Radclyffe’s submission is that when these appellants crossed the order on various different dates they did so on the basis that it had been the practice for many years. They did not necessarily go across with a ‘guilty mind or conscience’, although by going across without a valid passport they were already breaking the law. Many of the crossings were for innocent proposes, for fishing trips or for visiting families and friends, and he pointed out that the reason for going across to see the Papua New Guinea Defence Force Commander was to get permission to enter Bougainville for such innocent purposes. Even the Papua New Guinea Defence Force did not arrest them it seems for entering their jurisdiction without proper documentation.

When one considers the circumstances surrounding the commission of these offences the severity and the seriousness which may have been thought applied at the first instance is reduced. This is the submission of Mr. Radclyffe taken to its complete circle that the learned magistrate did not apply his mind sufficiently to the mitigation raised and therefore did not weigh the sentence that was imposed properly. I agree with him on that.

When passing sentence, the mitigating factors need to be assessed properly.

I do note that the Central Magistrate’s Court is loaded with work and that therefore magistrates may be under pressure from work.

I also note that this case has been a subject of interest to the media and may have been blown out of proportion by the media. I am not suggesting that the learned magistrate may have been influenced by these.

The sentence of imprisonment nevertheless is out of proportion to the commission of these offences by a first offender with such background circumstances as already described.

It would be correct to say that recent cases in which expatriates have been dealt with by the courts have been related to offences under the Immigration laws and not the Passports Act.

The comparisons and illustrations drawn by Mr Radclyffe however as to the activities involved by the particular expatriates he referred to and these appellants in a way does bring out to a certain extent, for purposes of sentence the weight that the court should attach to the seriousness of the particular offences in which these appellants have been charged with.

These appellants have been convicted of not possessing valid passports and nothing more. He has submitted that an absolute discharge would have been appropriate. I do not think so. A fine would have been appropriate in the case of first offenders and having regard to the peculiar circumstances of this case.

There is a provision in the Passports Act where an exemption from the requirements of section 11(1) can be obtained from the Minister. Persons living around that area may now wish to consider the use of that particular provision.

I am also satisfied that a fine would be a sufficient deterrent for first offenders at this stage.

The 3 months custodial sentence of each appellant is quashed and a fine of $200.00 substituted, in default 90 days in prison. Those with several counts of the same offence are discharged absolutely of those other counts.

The number of days spent in custody is to be deducted and the fine payable on only the remaining days. The fines are payable immediately.

The sentence of 6 months against Morris Bock under the Firearms and Ammunition Act is proper and I will not interfere. He will serve 6 months only provided the fine due is paid.

(A. R. Palmer)
JUDGE