Regina v Pilly [2001] SBHC 64; HC-CRC 074 of 2001 (5 September 2001)

HIGH COURT OF SOLOMON ISLAND

Criminal Review Case No: 74 of 2001

lass="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> REGINA

v

CALROSE PILLY

REVIEW DATE: 5^th September 2001

REVIEW JUDGMENT

Kabui, J): The prisoner was charged for the offence of store-breaking and stealing contrary to section 300(a) of the Penal Code. He appeared before the Gizo Magistrate on 27^th March 2001 and pleaded guilty to the charge brought against him. He was sentenced on 6^th April 2001 by the Gizo Magistrate for 10 months imprisonment. The facts however do indicate that no breaking had occurred because the prisoner had ed the store together with his two friends through the open door to the store. Sectionction 297 of the Penal Code defines "breaking" and "entering" in respect of burglary, home breaking and similar offences. That is to say-

..."A person who breaks any partther external or internal, nal, 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 or any part of any instrument used by him is within the building.

A person who obtains entrance i building by means of any tany 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". ...

There being no evidence of breaking in this case, the prisoneuld not have been chan charged with store breaking and stealing, contrary to section 300(a) of the Penal Code. He should have been charged with the offence of simple larceny, contrary to section 261 of the Penal Code in the first place. The prisoner should therefore have been convicted of the offence of simple larceny under section 159(2) of the Criminal Procedure Code. That to say-

...&When a person is charged with an offence and facts arts are proved which . reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it"....

In case, the offence of simple larceny carried a maximum penalty of 5 years imprisonmenonment whereas the offence of store-breaking and stealing carries the maximum penalty of 14 years imprisonment. There is therefore evidence of a lesser offence in this case. In order to regularize the position, I would order that the conviction be set aside, and instead, conviction for the offence of simple larceny, contrary to section 261 of the Penal Code, be entered against the prisoner. I order accordingly.

Sentence

The Magistrate must have taken the prisoner as hapleaded guilty to the offence of store-breaking and s stealing the sum of $1,700.00 therein. The Magistrate also took into account the prisoner having pleaded guilty and the fact the prisoner had no previous conviction. The Magistrate also noted the sum of money stolen was never recovered from the prisoner. There are other features of mitigating factors which the Magistrate did not take into account such as the prisoner’s youth and his co-operation with the Police. The prisoner is clearly a first offender and a sentence of 10 months imprisonment is in my view rather excessive. I would set aside the sentence of 10 months imprisonment and substitute it with 6 months imprisonment. I order accordingly.

F.O. KABUI

JUDGE