Eapa v Reginam [2001] SBHC 77; HC-CRC 248 of 2001 (2 November 2001)

ass="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGH COURT OF SOLOMON ISLANpan>

Criminal Case Number 248 of 2001

ROBERT EAPA

lass=lass="MsoNormal" align="center" style="text-align: center; margin-left: 3.0pt; margin-top: 1; margin-bottom: 1"> lang="EN-GB" style="font-size: 12.0pt">v

REGINAM

ass=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Before: Frank O. Kabui, J

Criminal Case Number 248 of 2001

Hearing: 30^th September 2001

Judgment: 2^nd November 2001

I. Kako for the Appellant

R. B. Talasasa for the Crown

JUDGMENT

(KABUI, J): By Petition filed on 17^th September 2001, the Appellant appealed to the High Court against the sentence imposed against him by the Central Magistrate Court in Honiara on 3^rd September 2001. The sentence imposed is a custodial one for the term of 9 months imprisonment. The offence with which the appellant was charged was simple larceny contrary to section 261 of the Penal Code Act (Cap 26). The appellant pleaded guilty to the charge and he was duly convicted on that charge on his own plea of guilty.

The Facts

On 24^th September 1, the appellant with others were drinking at the complaintlaint’s house at Panatina. The time was about 11:00 pm in the night. At about 2:00 am in the morning, the complainant retired to bed leaving the others and the appellant to continue drinking in his absence. When the complainant .woke up in the early morning he discovered that his CD player with two speakers were missing from his house. He did not know who removed them. Having been told by a member of the College security service where to find the appellant, the complainant went and confronted the appellant about his missing property. Thereupon, the appellant admitted that it was him who removed the CD player with its two speakers. The matter was reported to the Police at Naha Police who arrested the appellant and charged him with larceny. He was then released on bail to appear in Court at a later date.

p class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Sentence

The sentence imposed by the learned Magistrate obviously reflects the deterrent elemenlement of sentencing. It was imposed after the learned Magistrate had taken into consideration all the mitigation factors advanced by the appellant. Counsel for the appellant, Mr. Kako, argued that the sentence of 9 months imprisonment in view of the facts of the case was an over - reaction by the learned Magistrate. Mr. Kako placed emphasis upon the fact that the stolen items had been recovered and returned to the complainant and the fact that the appellant confessed immediately to his wrong - doing when confronted by the complainant. He also stressed the fact that the appellant had a family and a job as a security officer. He also pointed out that the appellant was a first offender. Counsel for the Crown, Mr. Talasasa conceded that the sentence of 9 months was on the high side and should be reduced after apposing the appeal. There is one aspect of this appeal which causes me concern. In the brief facts filed by the Prosecutor, no mention was made of the fact that the stolen items had been recovered. The facts only showed that only the CD deck has been recovered. The information that all items had been returned to the owner came from the appellant himself unconfirmed by the Prosecutor. The information should have been confirmed by the Prosecutor before sentence was passed to enable the learned Magistrate to act on true facts. However, it is too late now and the appellant must be given the benefit of that doubt in this appeal. When I read the facts filed in the Magistrate Court, they suggest to me that the appellant was an invitee. At least, he was not told to leave. Somehow, after the other person left, the complainant retired to bed leaving the appellant, John Bole and others drinking. The appellant did not say how he took the stolen items and how and why he did what he did nor did he say where he kept them. But obviously he had a guilty conscience for when he was confronted, he admitted the offence. The reason speaks for itself. He was a first offender. He must have felt that he was silly to have stolen the complainant's property because he had just been the guest of the complainant in the complainant's house. Stealing is an evil and a thief stinks in the eyes of the community. He is a threat to society and his neighbours. At the same time, no one is perfect but offenders must be punished all the same for offences they commit against society. When I read section 261(1) of the Penal Code Act, I see that it imposes a penalty of 5 years imprisonment for simple larceny. So simple larceny is a fairly serious offence. However, section 24(2) of the Penal Code Act does allow a term of imprisonment imposed by the Court to run for a shorter term than the maximum term of imprisonment prescribed by the Act. This is why the learned Magistrate imposed only 9 months imprisonment for an offence that carries a maximum term of imprisonment for 5 years. I will not disturb the 9 months imprisonment term imposed by the learned Magistrate. I will instead suspend it for 2 years under section 44(1) of the Penal Code Act. I think the appellant does have a chance to mend his ways and not to re-offend in the future. I order that the sentence of 9 months imposed by the learned Magistrate on 3^rd September 2001 be suspended with effect from today. The appellant will be released forthwith from prison as soon as is convenient to him. Since the appellant is not in the dock and is represented by Counsel, I would ask his Counsel to explain the effect of section 44 (6) of the Penal Code to the appellant.

F. O. KABUI

JUDGE