Ironimo v Reginam [1998] SBHC 88; HCSI-CRC 3 of 1998 (29 May 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 3 of 1998

DAVID IRONIMO

-v-

REGINAM

High Court of Solomon Islands
(KABUI, J.)
Criminal Case No.3 of 1998

Hearing: 27 May 1998
Judgment: 29 May 1998

DPP for Crown
Defendant in person

KABUI J: The appellant was convicted by the Principal Magistrate Court at Auki on 22nd August, 1997 for committing the offence of store-breaking, contrary to section 293(a) of the Penal Code and for committing simple Larceny, contrary to section 254(1) of the Penal Code. A charge for malicious damage, contrary to section 319(1) of the Penal Code was later withdrawn under section 189 of the Criminal Procedure Code. The Principal Magistrate Court imposed upon the appellant a sentence of two years imprisonment for store-breaking and six months imprisonment for simple larceny being counts one and two respectively on the charge sheet. The appellant has appealed against both sentences as being two excessive. The sentences are to run concurrently which in effect means the total sum of sentence is two years imprisonment.

The facts as they appear on the Court record are these. The appellant had been drinking beer with others near the Auki Market on 10th July, 1997 until late into the evening. Then in the early hours of the morning of 11th July, 1997, the appellant was seen breaking into the store owned and operated by one Stephen Sivaburi in Auki situated below Francis Sawane’s Motel. The appellant was seen by one Melody Enoramo, a market vendor, at the Auki Market. It was still dark but there is a security light in front of the store being broken into by the appellant. The appellant was alone. The said Melody Enoramo saw the appellant touching the window of the store and could hear the noise caused by the appellant. The appellant then disengaged himself from the window and went towards the sea-side. Later, the appellant appeared at the Market and bought three rolls of cigarettes. Then the appellant returned to the store and entered it through the window that he had broken open. The Police were alerted and the appellant was arrested as he was coming out of the store. Seven sleeves of Winfield red cigarette were recovered at the scene of the crime. The appellant was then wearing only a pair of trousers with his shirt tucked in the back pocket of his trousers. At the trial, the evidence of identification was accepted and conviction was accordingly entered in respect of the two counts on the charge sheet (see Reid & Others v R 90 Cri. App. R, at 121). The appellant stated in his Notice of Appeal dated 1st September, 1997 that he had not benefitted from the proceeds of his crime and therefore two years imprisonment was too much. At the date of the hearing of the appeal the appellant tendered to the Court a note containing the matters that the Court should consider in his favour. These were his submissions. Firstly, the store that he had broken into and stolen goods therein is not a dwelling-house. Secondly, the goods stolen were all recovered. Thirdly, he was now a converted Christian whilst in prison. In sentencing the appellant, Principal Magistrate did take into account-

(a) two prior convictions of similar nature;

(b) the fact that the appellant did not benefit from the goods as they were recovered immediately;

(c) the fact that the appellant had been in custody for four weeks prior to his trial date; and

(d) the appellant’s remorse for what happened and the plight of his family in his home village.

However, the Principal Magistrate was of the firm view that the offences committed were very serious and that a custodial sentence was appropriate I do not think a custodial sentence was wrong in principle. The question is whether or not two years imprisonment is far too excessive on the facts of this case. There are no hard and fast rules about the process of sentencing. There are many relevant factors involved. The position was nicely put by Ward C.J. in Joel Likilua and Allen Kokolabu v. R [S.I. L. R], 1998/89 at page 149 and I quote, “Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide.” This position was also taken by Ronald Talasasa on behalf of the Crown in his submission to the Court in that comparisons could be made but in the final analysis, each case had to be taken on its own merit. It is on this basis that this appeal would be decided. I have studied a number of authorities in this jurisdiction none of which is on all fours with the facts of this case. As High Court judgments in the early days up to 1980 and after 1989 are unreported, I may have missed out a relevant authority. Be that as it may, I must decide this appeal on its own merit. The offence of store- breaking, contrary to section 293(a) of the Penal Code is a single offence in that there should have been one count only. The alternative count of simple larceny, contrary to section 254(1) of the Penal Code was unnecessary (see Archbold, Criminal Pleading Evidence and Practice, Thirty-Sixth Edition at 670).

There was however no miscarriage of justice in this case. In this appeal, the appellant simply repeats the mitigation factors already taken into account by the Principal Magistrate following his conviction. The appellant however makes the point that the store that he had broken into, entered and stolen goods therein is not a dwelling- house. That is to say that the offence he had committed would not have caused any risks to life as the store was not occupied at time of the offence. This is a wrong attitude I must say. The law does not allow this. It must stop. Two previous convictions recorded against the name of the appellant were all in respect of store- breaking. The recent one was only in February, 1996. The appellant was sentenced to eighteen months imprisonment. That term of imprisonment would have expired in July 1997. With one-third remission, the appellant must have been discharged in January 1997. Within five months of his release from prison, the appellant offended again and was sent to prison for two years. I therefore do not think two years imprisonment in this case can be said to excessive in the case of the appellant. This appeal is dismissed.

(F.O. Kabui,)
JUDGE