Misitana v Reginam [1996] SBHC 70; HC-CRAC 007 of 1996 (6 December 1996)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 7 of 1996

LUKE MISITANA

-v-

REGINAM

Before: Muria, CJ

Hearing: 3 December 1996 - Judgement: 6 December 1996

Counsel: M B Santuel for the Appellant; DPP for the Respondent

MURIA,

The appellant had been charged before the Magistrate's Court at Auki with two counts of Sacrilege, contrary to section 291 (a) of the Penal Code, one count of simple larceny contrary to section 254(2) also of the Penal and one count of malicious damage, contrary to section 319(1) also of the Penal code. At the hearing on 1 March 1996 before the learned Principal Magistrate at Auki, the appellant pleaded guilty to all the counts and he was sentenced to imprisonment for 4 years on count one, 4 years on count two, 1 years on count three and 1 year on count four. Counts two, three and four are cumulative to count one, making it a total of 8 years imprisonment.

Originally the appellant only appealed against his sentence basically on the ground that it was excessive. At the first hearing of the appeal, the appellant's Counsel had filed on additional notice of appeal against conviction. The Court accepts the additional ground which was basically an amended notice of appeal to include an appeal against conviction also.

At the hearing on 8 November 1996 the learned Director of Public Prosecution was not in a position to argue the respondent's case as he was just given the notice of the proposed against conviction. The case was adjourned for two weeks. It was fixed for 21 November 1996 but as I was away on official matters overseas, the case was relisted for 3 December 1996, at 9.00 am. On the 3 December 1996 I had to attend to His Excellency The Governor-General on official businesses at 9.00 am. The matter was not heard until 10.35 am.

At the hearing on 3 December 1996, only the appellant and his counsel were present. The learned DPP had been contacted by my Judge's Associate twice before the hearing but despite the distance of only about 50 metres from the Court house, the learned Director was not present when the Court sat at 10.35 am on 3 December 1996. This hearing had proceeded despite the absence of the learned DPP.

So much for the background of this appeal and I shall now turned to the grounds of appeal. On the appeal against conviction the basic contention is that the appellant did not "break and enter" the church building as alleged. So that when he pleaded guilty to the charge, he had really done so out of ignorance. In addition it has been contended that the learned Principal Magistrate was obliged to explain to the appellant the nature of the offence so that he (appellant) could properly make his plea since he was not legally represented. As a result of the learned Magistrate's failure to properly explain to the appellant the nature of the offence, it is contended that the appellant had pleaded guilty to an act which he did not do.

I take first the complaint regarding the failure to explain to the appellant the nature of the offence, since he was unrepresented. It must be pointed out that where the accused is not legally represented and he pleads guilty to a charge, it is absolutely essential that the Court must ensure that the accused understands the elements of the offence contained in the charge to which he pleads guilty. If having done so, the Court ascertains that the accused has wrongly or mistakenly pleaded guilty, the trial magistrate or judge should permit the accused to alter his plea so long as it is before judgement or sentence but not after. Failure by the trial magistrate or judge in this regard is good ground for the appellate Court to interfere with the trial Court's decision.

In the present case, the record shows that the charges were read and explained to the appellant and that he understood the charges. He then pleaded guilty to the charges. These, on the record, were clearly done, as shown:

"CR & E.. Understands charges

PLEA : Count 1 True

Count 2 True

Count 3 True

Count 4 True"

The initials "CR & E simply mean: Charges(s) Read and Explained." Having done that, the appellant clearly understood the charges and pleaded guilty to all the charges. On the record I find it lacking in substance the suggestion that the learned Principal Magistrate failed to properly explain the charges to the appellant. The learned Principal Magistrate had done what was essential to ensure that the appellant understood the charges to which he pleaded guilty. I am satisfied of this and I reject the appellant's contention.

Next is the question as to whether or not the appellant broke and entered the door of the church where he took the items. The definition of "breaking and entering" is provided for in section 290 of the Penal Code. It says:

290. A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting or any other means whatever, any door, window, shutter, cellar flap or other thing intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building.

A person is deemed to enter a building as soon as any part of his body part of any instrument used by him is within the building.

A person who obtains entrance into a building by means of any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the building.

It must be noted that under the section 290 definition, it is sufficient to constitute "breaking" any part of a building if a person pulls or pushes any door of a building which is closed. Through his counsel, the appellant agreed the door was closed, though as he said was not locked, and that he only opened the door by pushing it. The door was closed which was intended to close entry into the sacristy room. The appellant gained entry (which was not denied) by pushing the door open. That however, must clearly satisfy the definition of "breaking" the building as defined in section 290.

The facts as read to him and agreed to include going to the sacristy room "gained entry by force, door open by pushing the door. The door was closed. He forced the door forward entered the room On those facts I do not see how he can confidently argued, that the did not "break and enter" the sacristy room twice.

I see no merit in the contention now advanced by the appellant that he did not "break" into the church. With his long strings of previous convictions of similar offences, have no doubt that by now he has mastered the definition of "breaking and entering."

The appeal against conviction is dismissed.

I turn now to the appeal against sentence. The thrust of the appellant's argument here is that 8 years is excessive in the circumstances of the case. Counsel submitted that a sentence in the range of 4 years in total would have been more appropriate in this case.

There is no doubt the offences committed by the appellant in this case are serious. They demonstrate clearly the appellant's attitudes toward society. He showed no respect for the church to which he was baptised and received his faith. He chose the easiest means to make his living by stealing from the church.

The total value of the property stolen was considerable. I accept most of the property stolen were recovered except the money and the crucifix.

A sentence of 4 years imprisonment on each of the first two counts clearly be within the top range to be imposed.

The accused had pleaded guilty to all four (4) counts in this case. A guilty plea as I have in R -v- Nonga Crim. App. No. 32 of 1996 is a powerful mitigating factor and should tell in favour of the accused.

As to the recovery of properties, that is no credit to the appellant. The items stolen were recovered only because he was founded out before he could further deal with them.

As to previous convictions, the appellant has a string of them, seven of which were for similar offences. The court cannot simply ignore that fact. However, I bear in mind the warning given in Kaboa -v- R [1980 - 1981] SILR 43 where the Court of Appeal said that previous convictions should not be given such effect as to result in the increase of sentence upon the accused person. There is no evidence to show that sentence imposed by the learned Principal Magistrate in this case was attributable to the appellant's previous convictions.

Bearing all that in mind and all that have been urged upon the court, the only matter that is left for the court to consider is whether the totality of 8 years imprisonment is excessive in the circumstances of this case. Having considered most anxiously all that has been urged upon the court, I feel the total sentence of 8 years does not reflect any discount for the appellant's guilty pleas in this case. As such the sentence must in my judgment be considered excessive.

In the circumstances I allow the appeal against sentence and substitute following sentence for that imposed by the learned Principal Magistrate:

Count 1 : 2 1/2 years

Count 2 : 2 1/2 years

Count 3 : 9 months

Count 4 : 9 months

The sentences in counts 2, 3 and 4 are to be served currently but consecutive to count 1. This makes a total of 5 years imprisonment.

Appeal allowed in part.

ter">GJB MURIA
CHIEF JUSTICE