Regina v Gwali [1999] SBHC 10; HC-CRC 021 of 1997 (12 February 1999)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 21 of 1997

REGINA

v

FRED GWALI & JOHN MORRISON

High Court of Solomon Islands

Before: Frank Kabui J

Criminal Case No. 21 of 1997 & 1 of 1998

class="MsoNoMsoNormal" style="margin-right: 0pt; margin-top: 1; margin-bottom: 1"> Hearing: 8^th February 1999

lass="MsoNormal" style="mar="margin-right: 0pt; margin-top: 1; margin-bottom: 1"> Sentence: 12^th February 1999

Jean Gordon for the Accuseds

DPP for the Crown

SENTENCE

(Frank Kabui J): This case concerns you, namely, Fred Gwali and John Morrison. You are from Koaa Village, West Kwara’ae in the Malaita Province. You were charged by the Director of Public Prosecutions for the stealing of postal packets in Honiara on 10th February, 1995. You both pleaded guilty before me and I convicted you accordingly on your own pleas. You are now before me for sentence in the usual way.

The admitted facts are these. You Fred Gwali was a driver for the General Post Office in 1995 being employed by the then Ministry of Posts & Communications. On or about the 10th of February, 1995, you Fred Gwali and John Morrison were drinking beer in front of the General Post Office Compound after work. You were doing so until dark. You then went into the mail room of the General Post Office and broke open mail bags No. 16 and 28 which were to be sent to Kira Kira and Gizo the next day. You removed eleven (11) registered letters containing money from mail bag No. 16 which was to be sent to Kira Kira. You also removed six (6) registered letters from mail bag No. 28 which was to be sent to Gizo. You were subsequently arrested and charged by the Police. Each of you was interviewed by the Police and admitted the offence committed. According to Fred Gwali's caution statement recorded on 8th March, 1995 by Detective Sergeant Mamu, No. 591 the amount of money taken was about $1,000. All this money went towards the purchase of beer. The stolen money has never been recovered.

The maximum penalty fo stealing of postal packets under the law is imprisonmentnment for ten (10) years. Section 266 (b) of the Penal Code states:

"Any person rson who steals from a mail bag, post office, post office letter box, officer of the post office, or mail, any postal packet in course of transmission by post; is guilty of a felony, and shall be liable to imprisonment for ten years."

So, this is a serious offence. It is nll matter. The duty of this this Court is to punish you for this. However, what punishment should be given and how heavy it is to be would depend upon the facts of your case and seriousness of the offence you committed. You Fred Gwali being an inside man, as it were, knew where the mail bags were kept and their contents. You used to carry mail bags as a driver so you knew about them. You knew registered mail would contain money and must be protected by those who were trusted to handle, transport and deliver them safely at all times. Although you were not a postal officer at the time you committed the offence, you, as a mail driver, were expected by your employer to observe all the safety rules about the handling of mail generally one of which must be that you were not supposed to steal mail in the General Post Office. It is like a Bank driver stealing money from the Bank that employs him although he is not a bank officer as such. The money you stole belong to other citizens of Solomon Islands. You knew it was not your property. Being drunk is not an excuse. It is an easy and convenient excuse to make. Do not drink alcohol if doing so would cause you to steal another person's property. You, John Morrison also participated in the stealing of the two mail bags. You must have obviously known that to gain access into the room where the two mail bags were kept and to remove their contents together with Fred Gwali was wrong. Again, being drunk is not an excuse. Fortunately, there is no evidence to show that you were the prime mover in the commission of the offence. You simply went along with what Fred Gwali was saying and doing. Both of you benefited from the proceeds of the offence you both committed.

The stealing of p packets is not a prevalent offence in Solomon Islandslands. I believe however it happened before in this country. One such case is R v Aldrin Maepaine (Criminal Case No. 6 of 1982 unreported). In that case, the accused was a junior and young postal officer who stole money in registered mail over a long period of time. The accused pleaded guilty to three (3) counts of stealing postal packets but asked the court to take into account nine (9) other similar offences. The accused also co - operated with the Police. The High Court sentenced the accused to eighteen (18) months imprisonment on each count to run concurrently. The High Court also imposed a fine of $50.00 on each count to be paid within one (1) month in default of which the accused would go to prison for six months.

In your case, Fred Gwali, you pleaded guilty and cooperated with the Policeolice. I have also taken into account everything that is said in your favour by your lawyer. That is to say, I have taken into account the fact that you are married with three children (3) with the fourth one being expected. I have also taken into account the fact that your mother is diabetic and the fact that you are paying school fees for members of your family. I have further noted that you are sorry for what you did. I place no weight on the submission by your lawyer that you are now a changed person - now a Christian as there is no independent character evidence by your. pastor to confirm that submission. If however, you are a changed man then it is good for you. Your lawyer also urged me to consider the fact that your trial had been hanging over head for more than three (3) years through no fault of yours. This is not disputed by the Director of Public Prosecutions. The fact that you are now employed as a driver for Hot Bread Kitchen earning a salary for yourself and your family is bound to be jeopardised if you went to prison. I note that it is unfair and most inconvenient for you to have waited for your trial for over three (3) years without knowing the date of your trial and your fate. As the famous saying goes "justice delayed is justice denied".

In your case, Jorrison, you also pleaded guilty and co - operated weld well with the Police. I have also taken into account everything said in your favour by your lawyer. I note that you are sorry for what you did and ask me for leniency. Both you and Fred Gwali are of good characters.

For my part, this is not an easy case to de In my view, the offence boce both of you committed is a serious offence indeed. You stole money sent by post to other persons in Kira Kira and Gizo. Those persons had lost their money. You caused them unhappiness and anger. You were selfish and inconsiderate. You were bad citizens. You were thieves. You ought to be punished by the law. That is their expectation of the Courts in this country. I am sure you will well appreciate this.

R v Dalo [1987] SILR 43 at 44, C.J. Ward, said,

"It is perfectly clear that the sentence is correct in law and hend he was right to consider including a deterrent element in cases where violence has erupted from a land dispute. On that basis I would have dismissed the appeal.

Howevee offence occurred on 2nd February 1984 and was firstfirst before the court on 3rd February 1987 - three years later. Counsel for the respondent could give no reason for this delay.

In this case, the appellant has, since the offence, committed no other offence and has obtained a good job. The sentence of imprisonment will lose him that job.

Although the learned magistrate refers to the fact that the appellant has been out of trouble since February 1984 and was clearly aware of delay, I feel he may not have made due allowance for the hardship caused by the delay.

i>I may well be failing to give credit tdit to the magistrate, for his sentencing judgment was well written and showed a sensible and careful approach to the case.

>However, in perhaps an over - abundabundance of caution, I shall allow the appeal and reduce the sentence to one of twelve months imprisonment.”

In case, the sentence was reduced from eighteen (18) months to twelve (12) months. It w It was a case of unlawful wounding quite unlike this case. However, the point here as I have said is that long delay in prosecuting criminal cases may have the effect of reducing a custodial sentence imposed by the Court. Having considered the facts of your case, the nature of the offence you committed and the penalty prescribed therefore and all that is said in your favour by your lawyers, I am of the view that a custodial sentence is inevitable in this case. I therefore sentence you Fred Gwali to eighteen months imprisonment and you John Morrison to 9 months imprisonment. Although I am tempted to order payment of compensation under section 27 of the Penal Code, I would not be doing so as the facts presented by the Director of Public Prosecutions do not disclose the exact amount of money stolen and the owners of the stolen money.

However, this is not the end of the matter. Your lawyers in their submissions urged me to consider suspending any custodial sentence that I may impose on you in this case. They both referred me to the case of R v John Mark Tau & Others (Criminal Case No. 58 of 1993) where Palmer, J. suspended the sentences His Lordship imposed in that case. I have read the hand written Judgment on sentence by Palmer, J. in that case. One significant factor is that there were character witnesses in that case quite unlike this case. However, my view is that you both are first offenders. That fact is demonstrated by co - operating with the Police and pleading guilty to the offence you committed. You now regret what you did. Also, you have not committed any offence for the last four (4) years since the commission of that offence. This shows that you must have learnt from your mistake and wish to live a straight life. It would seem to me that the offence you committed was an isolated incident of misbehaviour on your part very much influenced by the consumption of alcohol. I will give you a chance to enjoy your freedom from detention by suspending the sentence of eighteen (18) months imprisonment in your case, John Gwali for two years. Likewise, the sentence of nine (9) months imprisonment in your case John Morrison is also suspended but for twelve (12) months. This suspension of sentence takes effect today. I am empowered to do this under section 44 of the Penal Code.

Section 44(6) of the Penal Code has been complied with.

Dated this 12^th day of Febru999

F. O. Kabui

Judge