Peter v Regina [2003] SBHC 82; HC-CRAC 312 of 2003 (5 December 2003)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case Number 312 of 2003

SIMON PETER

V.

REGINA

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

Date of Hearing: 5^th December 2003
Date of Judgment: 5^th December 2003

D. Evans for the Appellant
F. Mwanesalua (Director of Public Prosecutions) for the Respondent

PALMER J.: Both accuseds Simon Peter, the Appellant in this case and the co-accused Bill Wesley had been charged together for the offence of simple larceny contrary to section 261(1) of the Penal Code, the particulars of which read that on or about the 3^rd day of May 2003 they stole one Yamaha generator valued at $20,057.00 and one chain saw valued at $6,890.00 the property of Elite Company. They were arraigned before the Gizo Magistrates Court on 28^th May 2003, in which they entered pleas of guilty, were convicted and sentenced to prison terms of 2 years and 1 year respectively. I have called for the case of this co-accused to be brought up for review because in the process of dealing with the appeal of this Appellant it dawned on me that whatever orders this court is going to make in this appeal, especially if there was going to be a reduction in sentence that it could ultimately affect the sentence imposed against the co-accused.

The Appellant appeals against his sentence essentially on the grounds (i) that it was manifestly excessive and (ii) that as a result of his failure to understand his mitigation rights and what it entailed he was unable to present his mitigation in court and thereby the learned Magistrate failed to take into account his mitigating factors.

Learned Counsel Mr. Evans has proceeded with his submissions in respect of ground 1 under six headings, (i) circumstances of the offending, (ii) nature of the proceedings, (iii) personal circumstances of the accused, (iv) comparative sentences, and (v) parity in sentences.

Under the heading of “circumstances of offending”, learned Counsel has sought to present in more detail for the courts information, the background of the events leading up to the actual commission of the offence by the Appellant and his co-accused. I note these were not presented before the learned Magistrate as the Appellant was not represented and therefore did not have the benefit of a legal representative to put his case eloquently before the court as has now been done before me by Mr. Evans. It does assist to have legal representation when appearing before the courts. Unfortunately accuseds do not have such opportunities due to shortage of lawyers from the Public Solicitors Office, the problem being more acute out in the Provinces. Hopefully this need would be addressed as the nation begins the upward struggle in the process of restoration of law and order and the economy. I take note of those background facts for purposes of appreciating the circumstances under which the offence was committed and more so the simplicity of its commission which has landed this Appellant and the co-accused behind bars, though I merely point out that, being aggrieved is no justification or excuse for breaking the law; this Appellant should know that and he should not allow his simplicity to land him on the wrong side of the law.

Under the second heading “nature of proceedings”, it was highlighted that the Appellant was unrepresented, did not understand the nature of proceedings and therefore unable to present any mitigatory material and to express his remorse to the court below. However, that is no obstacle to the fair and just administration of justice as Magistrates are trained to deal with such situations and do take the time to properly explain to accuseds their rights in court and the nature of proceedings. Mitigation is a necessary requirement before passing sentence and all accuseds normally are given opportunity to say anything they wish in mitigation. I would presume where the accused does not understand the meaning of the word, that he would speak out and be told by the Magistrate. Perhaps there was some confusion in this instance, but the records did indicate that opportunity was given. I do appreciate nevertheless that a lawyer would do a better job on any day than the accused himself.

Under the heading of “personal circumstances” learned Counsel makes references to the age of the Appellant, 31, that he is married and has one child aged 4, that neither his parents nor his wife work and that at the time of sentencing he was the only bread winner for his family. Learned Counsel submits that insufficient weight was given to his personal circumstances.

Whilst I do concede that the personal circumstances of the accused are important matters to be taken into account, often that is provided to some extent by the antecedent provided to the court. That however will be dependent so much on what information the accused gives to the police. Apart from that, it would be more the responsibility of the accused during mitigation to bring out such matters that he would wish the court to take into account.

The fourth ground of “comparative sentences” raises a significant issue for consideration in this appeal. The first case relied on Richard Selwyn v. Reginam^[1] entailed a similar count of simple larceny of a chainsaw by the defendant from his employer a logging company. This also was done in retaliation for his dismissal. The defendant was sent to prison for six months. Defendant had three similar previous convictions and there was a delay of two years. On appeal the sentence was quashed by his Lordship and imposed a sentence of six months imprisonment with 5 months being wholly suspended for one year. In reducing sentence his Lordship took particular account of the guilty plea of the defendant, that an arrangement was in place for the return of the chainsaw and the fact of delay.

Learned Counsel also relied on another case R v. Christopher Kobi^[2] which entailed an offence of larceny by a servant in the sum of $65,519.66 from an employer. The offending occurred over a period of some two and a half years when the defendant occupied the position of a salesman or counter clerk. The money were used for his personal benefit and it seems that little recovery was made of any of those funds. The court took into account his age, guilty plea and previous good character when passing sentence.

In his submissions on this subject matter, the learned Director of Public Prosecutions (“Director”) sought to distinguish the first case on the grounds that the defendant in that case stole the chainsaw after he had been dismissed whereas in this case the Appellant was still an employee of the company and that his actions were done in breach of a trust placed on him as an employee of the company. The learned Director also referred to the fact that in this case the accuseds did not voluntarily return the goods stolen, that they did so only after being arrested. The learned Director also pointed to the retaliatory nature of the commission of the offence in this case.

The first case Richard Selwyn v. Reginam (ibid) relied on does provide some guidance as to the sort of sentence that the courts should in such instances impose. Whilst the above case is not on all fours to this case, there are some features about this case which could bring its factual circumstances to a similar range for purposes of passing sentence. I note that the items stolen were recovered immediately after the arrest of the accuseds, that they entered guilty pleas, were cooperative with the police and were first offenders. On the other hand, it was obvious that the offence was planned and organized by the Appellant, that as an employee he was able to take advantage of his knowledge and understanding of the location and whereabouts of those items, the movements of people in the camp and to be able to carry out the theft in such a way that they were not detected. That singles the Appellant out as the leader or the principal in the commission of the offence and perhaps was the reason why a stiffer sentence had been imposed on him.

Unfortunately, the sentence of 2 years imposed against him for the leading part and role in the commission of this offence is manifestly excessive. Whilst the matters placed before the learned Magistrate do warrant the imposition of a custodial sentence, there were clear mitigating factors which would have lowered the period to be served considerably. In particular the fact that the goods stolen were recovered must reflect on a cooperative attitude towards the police during investigation, also his guilty plea and the fact that he had no previous circumstances.

An appropriate sentence in such circumstances would have been around 6-12 months. The learned Magistrate should have considered what would have been an appropriate sentence in his case before deciding whether he should differentiate any sentence for the co-accused. Apart from the fact that Appellant was an employee of the company at the time of the commission of the offence, there is very little difference between the manner of commission of the offence by the co-accused. The co-accused participated throughout with the Appellant. In terms of the parity in sentences imposed, the difference should only be slight.

With regards to the misunderstanding of the opportunity of presenting mitigation in court, whilst it is possible that that might have occurred, nevertheless the basic factors necessary for the learned Magistrate to consider in relation to the appropriate sentence to be imposed were before him at that appropriate time.

This appeal must succeed as being manifestly excessive on comparative grounds and on parity in sentence. The order of the Magistrates Court is quashed and I substitute the sentence of 8 months for the Appellant. The sentence imposed against the co-accused of 12 months is also quashed on the same grounds. However, a slight distinction needs only be made by virtue of the fact that he may have been more of a follower in the commission of the offence, in that the Appellant would have used his inside knowledge to facilitate how the theft was to be done. I impose in lieu thereof a period of 7 months. These orders will be certified to the court below.

I note these two prisoners have served a substantial part of their sentences and may be entitled to be released with immediate effect. That is a matter for the Officer Commanding Rove Prison to determine whether that is so or not and to act accordingly.

ORDERS OF THE COURT:

1. Quash the sentences of 2 years and 1 year imposed by the Magistrate Court in respect of the Appellant, Simon Peter and co-accused Billy Wesley.
   
2. Substitute sentences of 8 months and 7 months respectively.
   

The Court.

---

^[1] HCSI-CRC No. 25 of 1991, 23^rd October 1991 per Muria J.
^[2] HCSI-CRC No. 6 of 1995, 23^rd March 1995 per Palmer J.