Regina v Buga [2004] SBHC 28; HC-CRAC 105 of 2004 (26 March 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Appeal Case No. 105 of 2004

REGINA

-v-

BUGA

HIGH COURT OF SOLOMON ISLANDS
(KABUI, J).

Date of Hearing: 25^th March 2004
Date of Judgment: 26^th March 2004

N. Goodenough for the Crown.
K. Averre for the Applicant.

JUDGMENT

Kabui, J. This is an appeal against a sentence of 3 months imprisonment each on two counts of simple larceny, contrary to section 261 of the Penal Code Act “the Code” imposed by the Magistrate Court in Honiara on the appellant on 24^th March 2004 to run concurrently. The appellant is said to be a juvenile between 13 and 14 years of age.

Grounds of appeal.

The grounds of appeal are as follow-

1. The learned magistrate erred in not taking into account all relevant factors pertaining to the defendant, primarily the fact that he is only 13 years of age;
   
2. The sentence is manifestly excessive due to the age, seriousness of the offence and other circumstances surrounding the defendant and the offence;
   
3. The learned magistrate clearly failed to take into account the Juvenile Offenders Act and the provisions of the Penal Code and comparative sentencing in imposing so excessive a sentence on such a child.
   

The orders sought by the appellant were that the appellant be granted bail pending the determination of the appeal and that the sentence be set aside and substituted with a lesser sentence.

The bail application.

I granted bail with conditions on the rising of the Court. The conditions are-

(a) The applicant reside at Gilbert Camp with his sister and brother in-law;

(b) The applicant attend all court hearings;

(c) The applicant does not commit further offences whilst on bail.

The following are the reasons for my granting bail. The bail application was brought under section 290 of the Criminal Procedure Code Act (Cap. 7) “the CPC” which entitles a convicted person to apply for bail pending an appeal. The appellant being a person who filed an appeal against his sentence after pleading guilty was therefore entitled to be heard and so was heard through his Counsel, Mr. Averre. Mr. Averre told me from the bar table without objection from the other side that the appellant had been sent to prison only the day before. He was put in the Left Wing of the Rove Prison in a separate cell but eventually would obviously come into contact with adult persons in the Rove Prison there being no place of detention for young persons in Solomon Islands. He said he would not like the appellant who is a child to spend one night longer in Rove Prison. He suggested that the appellant be granted bail and that he should stay with his sister and his brother-in-law at Gilbert Camp. He however pointed out that the appellant was facing two other criminal charges in the magistrate court and to be put on trial later on a date to be fixed. Nevertheless, he said the other charges were yet to be determined by the magistrate court. Counsel for the Prosecution, Mr. Goodenough, did not oppose bail but did point out that the appellant had jumped bail previously in the magistrate court. I have seen the magistrate court files relating to the appellant. The appellant is charged with larceny in a dwelling house, contrary to section 269 of the Penal Code Act (Cap. 26) “the Code”. This offence was committed in May 2003 in Honiara. He was to appear in the magistrate court on 30^th May 2003 but did not show up in court. He was subsequently arrested on 9^th June 2003 and appeared in court on 10^th June 2003. When he was asked why he had failed to appear in court on 30^th May 2003, he said did come to court but his name was not on the court list and so Nelson Meke told him to go away. He was released in his own recognisance in the sum of $50 to appear again in court on 16^th June 2003. He failed to appear and a warrant of arrest was issued for his arrest. He is due to appear again on 20^th April 2004. The appellant is also charged with criminal trespass, contrary to section 189 of the Code. This offence was committed in March, 2004. He appeared in court on 5^th March 2004 having been arrested following a warrant of arrest. When asked why he failed to attend court he said he was afraid to attend court. He was released to appear in court again on 19^th March 2004. Again, he did not appear in court. A warrant of arrest was again issued for his arrest. Asked why he failed to appear in court, he said he was afraid in case he was put into cell. The case was then adjourned to 20^th April 2004. In the meantime, he appeared in court on 23^rd March 2004 on two counts of simple larceny to which he pleaded guilty and sentenced to 3 months imprisonment on each count to run concurrently. All along the appellant was not represented by any Solicitor; he was alone. The hearing dates were a little confusing and obviously he was afraid of going to jail. Although he was advised by the magistrate at one stage to see a Solicitor, he did not do so. He lives at Gilbert Camp with his sister. His parents are alive and live on Malaita. It may well be the case that his sister did not know he had been sent to prison or even if she did know about his recent behaviour but did not care much, the appellant being a child ought to have been dealt with under section 16 of the Juvenile Act (Cap. 14) “the Act”. I note that the learned magistrate was expecting the appellant’s relatives in court but none was there. There is no conclusive evidence upon which I can conclude that the appellant was 13 years but he could well from his appearance be 13 years thus qualifying for being legally a child under the definition of a child under section 2 of the Act.

Deciding the grounds of appeal.

The common denominator of the grounds of appeal is that the appellant is a child or in the least a young person and therefore is entitled to be treated under the provisions of the Juvenile Act. Section 16 of the Act is pertinent to this point. So what does that provision say? Well, that section states-

“...Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt the court shall take into consideration the manner in which, under the provisions of this or any other Act or law enabling the court to deal with the case, the case should be dealt with, and, subject to such provisions, may deal with the case in any of the following manners, or combination thereof, namely-

(a) by dismissing the case; or

(b) by discharging the offender on his entering into a recognizance, with or without sureties; or

(c) by dealing with the offender under the provisions of the Probation of Offenders Act; or

(d) by committing the offender to the care of a relative or other fit person; or

(e) by ordering the offender to pay a fine, damages or costs; or

(f) by ordering the parent or the guardian of the offender to pay a fine, damages or costs; or

(g) by ordering the parent or guardian of the offender to give security for his good behaviour; or

(h) by directing that he be released on his entering into a bond to appear and receive sentence when called upon; or

(i) by committing the offender to custody in a place of detention; or

(j) where the offender is a young person, by sentencing him to prison; or

(k) by dealing with the case in any other manner in which it may be legally dealt with:

Provided that nothing in this section shall be construed as authorizing the court to deal with any case in any manner in which it could not deal with the case apart from this section.

Based on the understanding that the appellant is 13 years of age, giving him a custodial sentence as in this case is unlawful in terms of section 16 (j) of the Act. Even if the appellant is 14 years, he is a first offender with no previous conviction. He was not represented by a lawyer at his trial in the magistrate court to enable his case to be effectively presented in court. Whilst the social welfare report is relevant, it must be assessed against the background of section 16 of the Act because of the age factor. In the result, the sentence of 3 months imprisonment for each count of simple larceny for a child was unlawful in that the appellant is a child under 14 years and cannot be imprisoned and therefore must be quashed accordingly. Whilst I am entitled to quash the sentence passed by the learned magistrate and replace it with the warranted sentence under section 293 of the CPC, I do hesitate to do so until I see a supplementary social welfare report on the appellant. I want to know a little more about the background of his family at home on Malaita and his circumstances in Honiara. Are his parents not divorced or separated? Are they healthy parents? How many persons are living in his sister’s house at Gilbert Camp? What does his sister say about him in terms of supervision and meeting his needs in town? Was his sister aware of his activities, and if so, had she spoken to him? Does he have close relatives living with his parents at home on Malaita? I would adjourn this case to a date to be fixed to consider the appropriate sentence upon receipt of a supplementary social welfare report covering the matters raised above. The report should be forwarded to the Court as soon as it is completed. The order of the Court is that sentencing be adjourned to a date to be fixed. I order accordingly.

F.O. Kabui
Puisne Judge