Regina v Sione [2001] SBHC 16; HC-CRC 139 of 2000 Consolidated with 138 of 2000, 164 of 2000 & 035 of 2001 (28 March 2001)

HIGH COURT OF SOLOMON ISLANDS

Cal Case No.139/2000
Consolidated with CRC 138/2000/2000, CRC 164/2000 And CRC 35/2001

REGINA

<1"> v

ass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> SOGOVARI S/span>

class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Date of Review: 28^th March, 2001

REVIEW JUDGMENT

(KABUI J): Criminal No. 139/2000 for the was merged with Criminal Case File No. 139/2000 for the sake of convenience. The result is that Criminal Case File No.139/2000 contains five criminal charges against the prisoner arising from independent circumstances. These changes were as follows:-

1. Store - breaking and Larceny contrary to section 300 (a) of the Penal Code; the particulars were that Sogovari Sinoe on or about 7^th July, 2000 broke and entered the Fisheries Co - operative at Gizo in the Western Province and stole therein the sum of $422.00, six bottles of beer valued at $27.00 one tin sunshine milk valued at $11.00 and one bottle of coffee valued at $8.00 being the properties of one Patrick Purcell

2. Office - breaking and Larceny contrary to section 300 (a) of the Penal Code; the particulars were that Sogavari Sione on or about 10^th July, 2000 broke and entered Paro Corporation at Gizo in the Western Province and Stole $3,500, 30 C.D. Cassettes valued at $500.00 being $4,000.00 in total, the properties of one Grant Griffith.

3. Simplcency, contrary to section 271 of the Penal Code; the; the particulars were that Songovare Sione on or about 18^th August, 2000 stole 1 camera valued at $200.00, 1 pair of hand gloves valued at $5.00 and 1 army bag valued at $50.00 from Yacht MENAGE A TROIS anchored at Gizo in the Western Province the total value being $255.00 being the properties of one Leslie Snow Hall.

4. Office - breaking and Larceny ary to section 300 (a) of t of the Penal Code; the particulars were that Sogovari Sione on or about 18^th September, 2000 broke and entered the Customs and Excise Office at Gizo in the Western Province with intent to steal therefrom.

class="Mss="MsoNormal" style="text-indent: .55pt; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> 5. Workshop - breaking and Larcency contrary to section 300 (a) of the Penal Code; the particulars were that Sogovari Sinoe or on about 25^th September, 2000 broke and entered Motu Trading and stole 1 electric hair dryer valued at $150.00 and 1 calculator valued at $75.00 at Gizo in the Western Province, the total value being $225.00, the properties of one Toma Tengasi.

The prisoner pleaded g to all these charges in the Gizo Magistrate Court on 16^th January, 2001. The prisoner was sentenced by the Gizo Magistrate Court on 18^th January 2001. The Gizo Magistrate Court treated these charges as Counts 1, 2 3, 4 and 5 respectively. The sentences handed down were in these terms -

Ct. 1 .O/B nbsp; &nnsp;&&nsp;;&nspp;nbsp;&nbp; ;&nspp;&nssp;  p; &nbp; &nbp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; ;&nbnnbsp;&nbssp &nbsp 3imp/p> poNorsal" sal" style="text-indent: 36.0pt; margin-top: 1; margin-bottom: 1">: 1"> <Ct2. Larceny from Yacht sp;&nnbsp;; nbsp;&nbsp &nbs; &nnbsp; p;&nsp; &nsp; &&nbp;; &nnsp;& &nbp; &nbp; &nnbp;& 3imp

b>Ct. 3 W/ &nnbsp;; &nsp; &bsp; nbsp; &nbbs; &nbp; &nbs; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; &nnbsp; &nbp; &nbp; &nbss;&nbnnbsp;; &nbsp &nbspp 1"> Ct. sp;&nnbsp; &nbsp &nbsp &nbsp  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp;& p; nbsp; &nbbsp;  p;&nsp; &nbp; &nbp;&nnsp; &&bsp;&nbsp &nbbsp; &nbbbsp;& p;bspp; nbsp; 3imp<: 1"> Ct. 5 O/B & p;&nbbsp;&nbp; &bsp;&nsp; ; &nbbsp; &nsp; &nbp; &nbbp;&nnbsp; &nbnbsp; &nsp; &nsp; &nbss;&nbbsp; &nsp; &&bsp;&nbp;;&nbpp; & &nbp; &nbp; &nbssp;&nnbspsp;nbbsp;&nbsp 3imp

poNorsoNorstyle="margin-top: 1gin-b: 1"> &nt">

"> All sentence to run concurrent with Ct. 4.

Suspended on good behaviour for 2 years.

Criminal Case No 164/2000

The prisoner was charged the stealing of a 25 horse power engine propeller, contrary to Section 261 of of the Penal Code. The particulars were that Sogovari Sione on or about 23^rd September , 2000 stole a 25 HP marine propeller valued at $850.00 at Gizo in the Western Province being the property of one Andrew Duncan. The prisoner pleaded guilty to the charge in the Gizo Magistrate Court on 11^th December 2000. The prisoner was sentenced the next day 12^th December, 2000 to 6 months imprisonment but was suspended for 2 years. The Court took into account the guilty plea, the fact that the stolen item had been recovered and the fact that the prisoner expressed remorse for his conduct. A matter against the prisoner was a previous conviction for simple larceny in 1999 for which he was sent to prison for 6 months. The basis for the suspended sentence was not stated by the Magistrate although the Magistrate said a custodial sentence was necessary to keep the prisoner out of trouble. The prisoner had clearly re - offended in the same offence.

Cri Case No.35/2001

The prisoner was again charged for simple larceny, contrary to section 261 of the Penal Code. The particulars were that Sogovari Sione on or about 9^th February, 2001, stole 1 long pants valued at $40.00 and 2 shirts valued at $40.00 each, 4 small pants, valued at $40.00, and 2 singlets valued at $10.00 each at Gizo in the Western Province the total value of the goods being $325.00 the properties of one Nelson Tekotoko. The prisoner pleaded guilty in the Gizo Magistrate Court on 12^th February2001. The sentence was handed down on 20^th February 2001.

<

The sentence was 2 months imprisonment. The suspended sentences in Criminal Case No. 139/2000 and Criminal Case No. 164/2000 were activated accordingly with the result that the total term of imprisonment were 14 months to run concurrently.

The Incorrect Charge

Charge 4, being Count 1, involved the breaking and entering theoms and Excise Office at Giat Gizo but nothing was stolen from the Customs and Excise premises there. The correct charge would have been office breaking with intent to commit a felony, contrary to section 301 (b) of the Penal Code. There is a difference. Section 300 (a) of Penal Code attracts the penalty of 14 years imprisonment whilst the penalty under section 301(b) of the same Code attracts the penalty of 7 years of imprisonment. This difference was highlighted in R v Nicholls [1960] 1 W.L.R. 658 where the charge combining section 26(1) and 27(2) of the Larcency Act, 1916 being the equivalent of sections 300 (a) and 301 (b) of the Penal Code was rejected for duplicity. However, in view of the application of section 170 of the Criminal Procedure Code Act (Cap. 26) (the CPC), I would not disturb the conviction nor the sentence imposed by the Gizo Magistrate Court. Section 170 of the CPC states

“When a n is charged with any offence mentioned in Part XXXI XXXI of the Penal Code and the Court is of the opinion that he is not guilty of that offence but that he is guilty of any other offences mentioned in the said Part, he may be convicted of that other offence although he was not charged with it.”

I would take it that the Magistrate had recordguilty plea by the prisoner for an offence under sect section 301 of the Penal Code by virtue of section 170 of the CPC. To that extent, the recorded conviction is valid as well as the sentence imposed by the Gizo Magistrate Court. As I have said, I would not disturb the conviction and sentence recorded by the Gizo Magistrate Court. I make no Order.

As I have said, the charges brought against the prisoner were independent of each other though pres presented in the Gizo Magistrate Courts as five counts being 1, 2, 3, 4 and 5 respectively. In this case, the sentences imposed were to run concurrently so that the effective terms of imprisonment was 6 months but to be suspended for 2 years. Deciding whether more than one sentences to be consecutive to the others or concurrent with them can be a difficult task for the Court. Guidelines as rules of practice are however stated in Criminal Law Texts and in decided cases by the Courts. In this jurisdiction, Augustine Laui v Director of Public Prosecution (Criminal Case No. 11 of 1987) (unreported) is one such case. In his judgment, Ward, CJ. said at page 2

“When sentencing at the one time for two or more off, the court will alwa always ne considensider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were comd ined in the course of a single transaction. If they were, the sentences should be concurrent, if not then consecutive sentences are appropriate su to the overall total.

The test of a single tction is not just a matter of time but whether the offencesences really form part of a single attack on some other person’s right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously , would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time should probably be made concurrent.

In this case, the two offences were closely relateunsel for the respondent hant has sought to persuade the court that the assault came first and was a more personal offence followed by the demanding with manaces which, because of the abuse of the abuse of custom, was a more public one. Although the argument is ingenious, I find that distinction artificial and inappropriate to the facts of this case.”

class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> (See also R v Stanely [1988/89] SILR 121 at 125).

Again, in R v Peter John Kastercum (1972) 56 Cri. App. R. 298, the Loief Justice of England said at pages 299 - 30,

“Mr. Wilkinson cites the well - knorking principle of this Cous Court that where several offences are tried together and arise out of the same transaction, it is a good working rule that the sentences imposed for those offences should be made concurrent. The reason for that is because if a man is charged with several serious offences arising out of the situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question. That is only an ordinary working rule; it is perfectly open to a trial judge in a case such as the present to approach this in one of two ways. If he thinks that the assault on the police officer is really part and parcel of the original offence and is to be treated as aggravation of the original offence, he can reflect it in the sentence for the original offence. If he does that, it is logical and right any separate sentence for the assault concurrent. On the other hand, and, as this Court thinks, a better course, in cases where an offender assaults the police in an effort to escape, the sentence for the principal offence can be fixed independently of the assault on the constable, and the assault on the constable can be dealt with by a separate and consecutive sentence.

In terms of time sequence, the first offence committed by tisoner was store breaking aing and stealing from the Fisherman’s Co - operative at Gizo on 7^th July, 2000. the sum of $422.00 plus other items totalling $46.00 being the properties of one Patrick Purcell. The second offence was also store - breaking and stealing from the Paro Co-operative at Gizo of $3,500 and 30 CD Cassettes valued at $500.00, being the properties of one Grant Griffith. The third offence was simple larceny from a yacht of items valued at $255.00. The fourth offence was again office breaking with intent to teal from the Customs and Excise Office. Nothing was stolen from that Office. The fifth offence was workshop breaking and stealing from the Motu Trading properties valued at $225.00.

Although these offences were similar in nature, they were not offences committed in one single transaction and against the same person. Far from it. In my view, the sentences imposed by the Gizo Magistrate Court should have been made consecutive so that the total term of imprisonment is 15 months.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Should the sentences passed in Criminal Files 139, 164 and 35 of 2000 be suspended?

>

The term of imprisonment imposed for each offence did reflect the ncy attitude shown by the the Court towards the prisoner for having pleaded guilty, being a youth misguided by others and being unemployed despite having served a previous term of imprisonment for simple larceny. Suspending the terms of imprisonment imposed for two years was an act of further leniency. D. A. Thomas, in his article Current Developments in Sentencing - The Criminal Justice Act in Practice at page 211 in the Criminal Law Review, May, 1969, discusses some approaches by the Counts in the sentencing process in the criminal law. He says one approach to dealing with suspended sentences was as stated by Lord Parker, CJ. in R v O’Keefe [1969] 1 A.E.R. 426. At pages 427 - 428, His Lordship said

“This court would like to say as emphatically as they can that suspended sentences should not be given when, but for the power to give a suspended sentence, a probation order was the proper order to make. After all, a suspended sentence is a sentence of imprisonment. Further, whether the sentence comes into effect or not, it ranks as a conviction, unlike the case where a probation order is made, or a conditional discharge is given. Therefore, it seems to the court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible courses such as a solute discharge, conditional discharge, probation order, fines, and then say to itsel: this is a case for imprisonment, and the final question, it being a case for imprisonment, is immediate imprisonment required, or can I give a suspended sentence?”

The otheroach is that there can be no suspension until a custodial sentence has been imposed osed (See R v Wallance [1969] Cri Law Review at 211). In other words, the normal principles of sentencing applies as regards imprisonment for less than 2 years before the Court decides the suspension of the operation of the sentence. There are however limiting factors. First is where the offender has already served a sentence of imprisonment in the recent past. The Court would be reluctant to suspend the sentence for a subsequent offence on the basis that the offender has not learned from a previous prison experience. The absence of previous prison sentence matters most because suspended sentence have been imposed where previous convictions results were a fine or a conditional discharge. Second is where the offender has committed a serious of offences, or the offence involved an element of planning or it involve breach of trust or where substantial allowance has already been made for the basis for a suspended sentence. Third is where the offender is typically a person of good character with minor previous convictions. The Court would normally opt to suspend the prison sentence imposed. There are of course cases which fall in between these categories of cases. There were also cases which showed that the Courts have shifted to another basis for deciding the imposition of suspended sentences a opposed to the earlier position described above. That is to say, there have been cases where suspended sentences were ordered solely on the ground that the offender was of very good character and that offending again was a remote possibility.

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Bearing thesnciples in mind, the first case to be considered is Criminal Case File No. 164/2000 000 above. I feel that a suspended sentence was not called for in this case. The Court placed no weight on the fact that the prisoner had re - offended and obviously had not learnt from the fact that he had just come out from prison as a result of committing the same offence in 1999. The Court however did say it had a duty to help and keep the prisoner out of trouble. This is clearly a subjective view rather than being a recognised sentencing practice. It was obvious that the Court was heavily influenced by the prisoner’s guilty plea and the fact that the stolen property had been recovered. To impose a suspended sentence is an act of double leniency on the part of the Court. I would revoke the 6 months suspended sentence and reinstate 6 months imprisonment with immediate effect. I Order accordingly.

The second case is Criminal Case File No.139/200 this case, the Gizo Magistrates Court though was awa aware of one previous conviction on simple larceny against the prisoner, gave it no weight. Weight was however given to the guilty pleas and the fact that the prisoner was 21 years old but nevertheless due to the serious nature of the offences, custodial sentence should act as a measure of deterrence. However, the bad state of the Gizo prison facilities was given the most weight in favour of the prisoner. In terms of section 2 of the Juvenile Offenders Act (Cap. 14), a young person is a person of the age of 14 years or upwards and under the age of 18 years. The prisoner being of the age of 21 years cannot be regarded as a young person for the purposes of the Act. The Gizo Magistrate Court should not have given any credit for youth. The only basis then for leniency was the guilty pleas and the mitigating factors which are already reflected in the short term sentences imposed by the Magistrates. There can be, it seems, no basis for suspending the sentences imposed in view of this. As I have said there seems to be double leniency in this case. (Public Prosecutor v Thomas Vela (1981) N.G.L.R. 412). If there is any basis at all for suspending the sentences for 2 years, it must obviously be the fact that the prisoner could not, as a human being, be detained in the Gizo Prison due to its very bad condition. The only practical solution was to suspend the sentences so that the prisoner would not be detained there. Although the Magistrate did not set out the from lamenting the conditions of the Gizo Prison, this conclusion would seem to be unavoidable. Whilst D. A. Thomas in his article above admits that the practice of suspended sentence is still evolving, any deviation must be within the provisions of the law. The implication is that any deviations outside the law must be sanctioned by Parliament. In my view, the suspended sentence imposed was done for the wrong reasons. I would revoke it and reinstate the terms of imprisonment for each count.

The third case is Criminal Case File No. 35/2001. This was the third time the prisoner re – offended in committing the offence of simple larcency. 2 months in imprisonment was in fact a reduction of sentence as compared with the previous imprisonment each one of which had been served in detention by the prisoner in 1999. The sentence imposed should really have been to the extent that it did reflect the Court’s dislike of the prisoner’s re - offending attitude to bring home to the prisoner the message that re - offending would not be tolerated by the Courts of Solomon Islands.

I order that the 2 months imprisonment be enhanced to 9 months imprisonment. In the result, I order that -

1. the suspended sentence of 6 months in respect of Criminal Case File No. 164/2000 be revoked and be substituted with, 6 months imprisonment;

2. tspended sentences of Criminal Case File 139/2000 be r be revoked and substituted with the sentences originally imposed by the Gizo Magistrate Court to run consecutively to each other;

3. the sentence of 2 months imprisonment in respect of Criminal Cnal Case File No. 135/2000 and the activation order therein to be revoked and be substituted with 9 months imprisonment;

4. Sentences in 1, 2 and 3 be consecutive.

<

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The effect of my order is that the prisonuld serve a total term of imprisonment for 2¹/2 p>/2 years. I do not think I have gone outside the principles of sentencing enunciated R v Stanley Bade [1988/89] SILR 121, R v Bati [1985/86] SILR 268, R v Lililua and Kololobu 148 and R v Ben Deresa (CC 26/89 – unreported).

Judge