Igi v Regina [1997] SBHC 39; HC-CRAC 047 of 1996 (23 July 1997)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 47 of 1996

ter">JACK IGI & ORS

-v-

REGINA

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Before: Palmer, J

Hearing: 16th July, 1997 - Judgment: 23rd July, 1997

PALMER J.:

The Appellants were convicted in the Magistrates' Court on numerous charges of taking part in a riot and riotously causing injury to buildings. They have been sentenced to imprisonment for varying lengths of time. Only one of the Appellants, Jack Igi, appeals against both conviction and sentence, whilst the rest appealed against sentence only. One of the Appellants, Irofiwane has served sentence and been released from prison. Learned Counsel, Mr Kwaiga appearing for him has applied to defer his case further for fresh instructions to be taken in respect of his appeal. Court has obliged and can deal with his case separately if he should insist on pursuing his appeal.

The Appellant, Jack Igi had been convicted on two counts; of taking part in a riot contrary to section 70 of the Penal Code; and riotously injuring buildings and structures contrary to section 76 of the Penal Code. He was sentenced on both counts to imprisonment for 2 years and 4 years respectively.

His sole ground of appeal against conviction is that the learned Magistrate had erred in convicting him as the leader of the riot. Learned Counsel, Mr Kwaiga submits that the evidence of the only prosecution witness against him had not been corroborated, and therefore, I presume meant that it was unsafe to be relied on. With respect however, the fact that his evidence is not corroborated does not necessarily imply that it must thereby be disregarded or disbelieved as against the evidence of defence witnesses. It is for the presiding Magistrate to determine whether his evidence is credible and thereby to be relied on or not, as against the evidence of defence witnesses. The learned Magistrate heard the evidence in court, observed the witnesses giving evidence and was in a superior position to form a correct view as to which witness should be believed and which not. There is no evidence to suggest that he had acted improperly and thereby formed an incorrect view or that it cannot be supported by the facts before him.

I am more than satisfied that he had thoroughly and meticulously assessed the evidence of the only prosecution witness and the witnesses produced by defence, and come to a reasonable and justifiable conclusion in law which cannot be interfered with. The appeal against conviction therefore must be dismissed.

On sentence, a number of grounds were tendered. First, it was submitted that too much emphasis had been placed on the fact that he was the leader of the riot. With respect, I fail to see how it can be said that too much emphasis had been placed on the fact that he had been a leader of the group. All that the learned Magistrate said in passing sentence was that this Appellant had played a key role in the riot by leading a group of rioters and that he considered this to be an aggravating factor. This was a perfectly proper comment and assessment to make in the circumstances. There was sufficient evidence before him to form such a conclusion and to take that factor into account, which he did. I am not satisfied that there is evidence to show that this had unduly influenced him when imposing sentence.

The second ground raised was that the extent of the damage had been done by several other hundreds of people who had never been identified. In other words that the court should have regarded the individual acts of these Appellants as if they had been committed in isolation; such as damaging sign boards, pulling up goal posts and tearing the goal nets, throwing stones at the buildings or kicking the boxes at the grand stand.

With respect however, the approach taken by Courts on this is to the contrary. In R. v. Caird (1970) 54 Cr. App. R. 499, per judgment of Sachs L.J., referred to by the learned Director of Public Prosecutions, his Lordship made the following pertinent statement:

"Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers.

. . .In the view of this Court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence."

The important point to note from his Lordships statement is that it is the act of taking part in such riotous activities that constitutes the seriousness of the offence. The facts as presented to the court by the key prosecution witness and accepted (properly) by the court showed clearly that this Appellant had encouraged the unruly and riotous activities at Lawson Tama by leading a group of about 100-200 young persons with a placard around the field, and the same group causing damage to boxes at the stand and the eastern goal posts and nets. That is sufficient to constitute the offence he has been charged with and to be punished for it. The fact that hundreds others were not arrested and charged does not alter the fact that he must be held responsible for his actions as an active participant in the commission of the offence of taking part in a riot and of riotously causing injury to buildings and structures. Obviously if he hadn't done what he had done, then no crowds would have formed and followed him around the field to the grandstand and damaged the boxes there and the goal posts at the eastern end. This ground must be dismissed.

The third ground raised is that the mitigating factors in each matter are distinct but the sentences the same. This ground raises two issues which need to be addressed. First, that the learned Magistrate did not take sufficient account of the mitigating factors raised on behalf of the Appellant. Had he done so, he would have imposed a lesser sentence. With respect, I am not satisfied that it can be shown that the learned Magistrate did not take this Appellant's mitigating factors into proper account. In sentence, the learned Magistrate clearly referred to those mitigating factors. I am not satisfied that it can be safely argued that the sentence imposed was harsh or excessive in the circumstances.

The second issue raised is that there is disparity in the sentences imposed. Again with respect, I am not satisfied that it has been shown that there is objectionable disparity in the sentences imposed. The learned Magistrate was entitled to impose a more severe penalty in the circumstances where he found that this Appellant was one of the leaders and instigator in the riot. This was reflected by a sentence which was a mere 6 months more severe than those in similar circumstances. That cannot be said to be harsh and excessive and objectionable.

His appeals against conviction and sentence must be dismissed.

The appeal grounds raised on behalf of the remaining Appellants are the same and therefore can be dealt with together. These are:

(1) That the extent of the damage was done by several other hundreds of people who had never been identified.

(2) The mitigating factors in each matter are distinct but the sentences are the same.

These grounds are also similar to the two last grounds of appeal raised by the First Appellant above.

As to the first ground, I have already dealt with that in detail. I am satisfied there was sufficient evidence before the learned Magistrate to find that each of these Appellants did take an active part in the riot and in causing damage to the properties and buildings at Lawson Tama and or the Kukum Police Station. The fact that there may have been hundreds others who have never been arrested and charged does not alter the fact that that these Appellants had taken part in a grave criminal offence. Lord Justice Sachs in R. v. Caird (ibid) describes this ground as the "Why pick on me?" argument. He states:

"It has been suggested that there is something wrong in giving an appropriate sentence to one convicted of an offence because there are considerable numbers of others who were at the same time committing the same offence, some of whom indeed, if identified and arrested and established as having taken a more serious part, could have received heavier sentences. This is a plea which is almost invariably put forward where the offence is one of those classed as disturbances of the public peace-such as riots, unlawful assemblies and affrays. It indicates a failure to appreciate that on these confused and tumultuous occasions each individual who takes an active part by deed or encouragement is guilty of a really grave offence by being one of the number engaged in a crime against the peace. It is, moreover, impracticable for a small number of police when sought to be overwhelmed by a crowd to make a large number of arrests. It is indeed all the more difficult when, as in the present case, any attempt at arrest is followed by violent efforts of surrounding rioters to rescue the person being arrested.

. . . If this plea were acceded to, it would reinforce that feeling which may undoubtedly exist that if an offender is but one of a number he is unlikely to be picked on, and even if he is so picked upon, can escape proper punishment because others were not arrested at the same time. Those who choose to take part in such unlawful occasions must do so at their own peril."

I am satisfied this ground must be dismissed in respect of all the Appellants.

On the second ground raised, I am also satisfied the learned Magistrate did take into account all the mitigating factors raised in respect of these Appellants before passing sentence. I have reviewed all the individual mitigating factors raised on behalf of these Appellants but cannot come to the conclusion that the sentences imposed were excessive or harsh in any manner and warranted the intervention of this Court.

On the question whether there is disparity in the sentences imposed, I am also not satisfied that this is so. To the contrary, what the learned Magistrate had sought to do is to ensure that there is consistency and fairness in the sentences imposed bearing in mind the various mitigating factors raised on behalf of each Appellant. For this Court to intervene it must be clearly shown that a particular mitigating factor should warrant a lesser sentence than the normal range of sentences imposed by the learned Magistrate. With respect, none has been demonstrated. The sentences imposed in my respectful view correctly reflected the balance of justice that needed to be applied in cases of this nature with each individual mitigating factor taken into proper account. I am satisfied the sentences imposed fell within the range which the learned Magistrate could impose in the peculiar circumstances of each Appellant taking all the relevant facts of the case into account. I see no reason to interfere with the learned Magistrates sentences in any way.

Appeals against sentence by Appellants, Baddley Taloa, Oscar Wane, Andrew Wate, Ezekiel Kokesanau, and Carlos Galofia dismissed.

ORDERS OF THE COURT

1. Dismiss appeal of Jack Igi against conviction and sentence.

2. Dismiss appeals of Baddley Taloa, Oscar Wane, Andrew Wate, Ezekiel Kokesanau, and Carlos Galofia against sentence.

THE COURT.