Regina v Topilu [1995] SBHC 7; HC-CRC 035 of 1995 (24 September 1995)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 35 of 1995

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v

REX TOPILU

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Be

Before: Palmer J

Hearing: 24th September 1995 - Sentence: 24th September 1995

Counsel: F. Mwanesalua for Prosecution - P. Lavery for accused

PALMER J:

This is one of those sad cases of a young person who has utilised his skills and talent in the wrong direction and for wrong purposes. He has been mis-guided and sought to make something through wrongful means.

The manner in which the offences were committed showed careful planning and forethought. However, as is the usual case, little thought is given to the consequences of such crime.

The offences with which the accused has been charged with are described as serious with a maximum sentence of up to 14 years.

There are aggravating factors in this case, that is -

(i) the repeated commission of those offences;

(ii) the period over which the offences were committed, a little over one year;

(iii) the amounts involved, most of them involved large sums not in the hundreds, but thousands of dollars - large amounts were between $2,000.00 to $5,000.00). The total amount stolen came to about $130.000.00 - $140.000.00. That is a substantial sum of money;

(iv) the planning involved in the commission of the offence;

(v) the position of trust placed on the "Accused".

However, at the same time I bear in mind the following mitigating factors as raised by Mr. Lavery on behalf of his client:

First, the youthfulness of the "Accused". He was around the age of 19 or so when these offences were committed. I also bear in mind the responsibility which Mr. Lavery says was placed on his client when he was still a young and immature person. On the other hand, it could be argued that it was nothing more than simply a matter of raising cheques and had no added responsibility. It was the actions of the "Accused" which distorted the responsibility placed on him to give the impression that it was more than what he could handle. It could be argued that temptations to steal occur in almost all levels of responsibility but that it is the person who has made up his mind to offend that has succumbed to such temptation, and therefore that excuse must be balanced with the fact that there are hundreds of others who do not. It is important therefore when considering sentence to deal with this "Accused" in such a way that others who might be thinking of succumbing to such temptation could be deterred.

I also bear in mind that the accused had just completed a training programme with Telekom and on the verge of embarking on a new career and the effects of a prison sentence on him.

I also take into account that he has a small child and that he intends to get married in December. One of the primary goals in sentencing is to look beyond the element of punishment, to setting the accused on the right path when he/she comes out of prison (rehabilitate and reform). There are basically two types of punishment system in this jurisdiction; fines or imprisonment. Both do not necessarily guarantee that a person will change or be reformed once he completes his sentence or punishment.

In the Accused's case, the offences warrant in my view a custodial sentence. The message must be made clear that crime does not pay and that whoever puts his hand to crime, must expect punishment. However, I bear in mind the strong mitigating factor concerning the youthfulness of this "Accused" and that in my view there is a very good possibility of reform and change when this "Accused" is released from prison.

I also take note of the submission raised that had the company been a bit more careful and vigilant in the performance of ifs duties, that the offences committed by the "Accused" may have been discovered at an earlier stage. The "Accused" would then not have to resort to the action he took in forging a cheque for a substantial sum to be found out. This however must be balanced with the fact that because he was not found out, is no excuse for continuing in his behaviour. To the contrary that should in my view be opportunity for repentance - giving him time to realise that what he had been doing is wrong, and stopping and getting it right with his employer; not to do a greater wrong. Committing more wrongs can never make a right, but a change of mind and heart is a step in the right direction.

I take into account the fact that this "Accused" is a first offender and a person of previous good character. I give credit for his cooperation with Police investigations.

At the same time I bear in mind that about 24 instances of forgery have not been included in the information which the learned DPP had decided to charge the "Accused" with.

The period of time that will be spent in prison is important in this "Accused's" case. This sentence has been personalised to suit this particular "Accused". After careful thought, he is convicted and sentenced as follows:

Imprisonment for 9 months on each count. For 7 counts, it comes to a total of 63 months or 5.25 years. In other cases, the sentence of 5 years would be appropriate. However, in the circumstances of this accused, taking all mitigating factors raised and balancing that with the seriousness of the offence and other matters I've raised, the sentence of 63 months should be reduced substantially by 45 months. The Accused's sentence therefore will be imprisonment for 18 months.

Counts 1 and 2, of 9 months each therefore will run consecutive to each other. The remainder to be concurrent to each other.

A. R. PALMER,
JUDGE