Foli v Reginam [2004] SBHC 34; HC-CRAC 051 of 2004 (3 May 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Appeal Case No. 51 of 2004

BILLY EMILIO FOLI

-V-

REGINA

High Court of Solomon Islands
(Palmer CJ.)

Hearing: 30^th April 2004
Judgement: 3^rd May 2004

K. Fairburn (Ms) for the Appellant
R.B. Talasasa for the Respondent

Palmer C.J.: The Appellant Billy Emilio Foli was charged on or about 22^nd December 2003 with the offence of fraudulent conversion contrary to section 278(1)(c)(i) of the Penal Code Act (Cap. 26). He was arraigned at the Central Magistrates Courts on or about 6^th February 2004 and a guilty plea entered. On or about 10^th February 2004, he was sentenced to 12 months imprisonment by the presiding Magistrate. He appeals against sentence on the following grounds:

(1) The learned Magistrate erred in failing to give sufficient weight to the Petitioner’s mitigating circumstances such as being of prior good character and entering an early plea of guilty;

(2) The learned Magistrate erred in failing to give consideration to the mitigatory effect of substantial delay in the prosecution of the charge; and

(3) The sentence imposed was manifestly excessive in all the circumstances.

Submissions of the Appellant: Ms. Fairburn for the Appellant submits basically that inadequate consideration had been given by the presiding Magistrate to the previous good character of the Appellant, his guilty plea and delay, which would have resulted in a much lesser sentence being imposed. She referred to a number of case authorities which she submitted indicated that the sentence imposed was manifestly excessive. An appropriate sentence could range from a suspended sentence of imprisonment to one of six months.

Submissions of the Respondent: Mr. Talasasa for the Respondent submits to the contrary that the learned Magistrate did consider all those relevant matters and imposed a sentence that was within range. Learned Counsel relied on a number of cases which he submits confirmed that the sentence of 12 months was not excessive.

Sentences for fraudulent conversion: A number of cases which had been previously dealt with by this court had been referred to by Mr. Talasasa in his submissions. I thank him for the research and amount of time put in conveniently providing these materials for my consideration, saving me unnecessary research time. I also thank Ms. Fairburn for the authorities provided on aspects of delay and personal circumstances of an accused. These have all been very useful.

The first case referred to was Regina v. John Foreman Sukina^[1]. The accused had entered a guilty plea from the beginning. Although he had previous convictions these were ignored by the court as they were over 9 years ago. He was a member of Parliament at the time of commission of offence and thus in a position of trust. The amount of money converted was $8,852.00. His Lordship Lungole-Awich J. imposed a custodial sentence of five months.

Second Case referred to was Suiga v. Reginam^[2]. Accused had been sentenced to two and a half years in prison by the Magistrates Court. Appellant operated a bank agency for the National Bank of Solomon Islands Limited in South Malaita since 1985. In 1989 investigations revealed that a sum of $6,683.21 had been converted. When interviewed, he admitted offence. He was not charged however until late August 1990, some 10 months later. It was revealed in court that the Bank had been reimbursed by an insurance company and that he had entered into an agreement with the insurers to pay back the sum at a rate of $150 per month. He had no previous convictions and had entered a guilty plea. His sentence was reduced to 18 months.

Third Case, Regina v. Nelson Ta’au^[3]: Accused had an earlier conviction for false pretence in 1992 and had served a prison sentence of four months. The amount converted was $3,054.87; he had however before conviction repaid the amount in full and had entered a guilty plea. Sentenced to two years, but 15 months suspended for 3 years. He served only 5 months.

Fourth Case, Director of Public Prosecutions v. Jones^[4]. The accused was a man of previous good character and had been convicted on his plea of guilty for two offences of fraudulent conversion committed when he was Deputy General Manager of the Home Finance Corporation. The offences pertained to the payment of two cheques belonging to Home Finance, one to Coopers and Lybrand for $503 being fees owed by him personally and the other to himself for $8,913.89, although it was accepted in mitigation that this was the same amount he would have been entitled to as a 25% gratuity at completion of his contract. The Magistrates Court sentenced him to 3 months in the first offence and 12 months in the second offence. The whole of the second offence was suspended; he had to serve only 3 months. The Director of Public Prosecutions appealed and the sentence was increased to 7 months with 8 months only suspended. His Lordship Ward CJ accepted that the sentence of 15 months was correct in principle but that the personal circumstances of the accused being his health and the fact that he was a foreigner warranted suspension of part of the sentence.

The sentences imposed for fraudulent conversion in those four cases ranged from 5 months to two years. What this meant was that the sentence of 12 months imposed in this case was not out of touch with the possible range of sentences that could have been imposed for such offences. That however does not necessarily imply that the sentence imposed in this case was appropriate. Each case has to be dealt with on its own facts and merits.

The facts in this case: The Appellant was a teller in the International Section of the Australia and New Zealand Bank, Honiara and had received a certain sum of money for telegraphic transfer to an overseas destination on or about 28^th April 1998. It seemed that part of the money transacted never got sent and the client became suspicious. The client raised queries with the Appellant on or about 31^st July 1998 and later reported the matter to the General Manager on 13^th August 1998. An investigation was conducted and the Appellant admitted to having appropriated the amount of $2,500.00. He was dismissed from service thereafter but nothing was done until five years later, on 22^nd December 2003 he was arrested and charged for the offence. By then he had obtained a teaching job in a school and had gotten married with three children.

Analysis: When the facts of this case are compared with the facts of the cases on fraudulent conversion referred to by Mr. Talasasa, it is my respectful view that the sentence of 12 months imposed was slightly on the higher scale. Apart from the breach of trust, there were no other aggravating features present which could have justified the sentence of 12 months or even more in this instance. The Appellant had admitted to the offence at quite an early stage soon after an internal investigation had been conducted. Why he was not arrested and dealt with by the Police immediately is not known. There is no explanation either provided for the delay. The Appellant entered a guilty plea at his first appearance and has no previous convictions. It appears the Appellant had offered to make repayments for the loss consistent with his feelings of remorse. The amount converted compared to the cases cited above is quite low. The nearest amount is that of $3,054.87 in the case of Regina v. Nelson Ta’au (ibid). The sentence imposed in that case was 15 months. The accused had a previous conviction on a similar offence which was taken into account and may have been taken into account as an aggravating feature in the case. Part of the sentence however was suspended. Apart from a guilty plea, he had repaid the sum in full before conviction. He therefore only had to serve 5 months.

Taking all factors into account, the sentence of 12 months imposed by the learned Magistrate in the peculiar facts of this case unfortunately is clearly excessive. An appropriate sentence would have been more on the figure of 6-9 months. Had a not guilty plea had been entered, and the Appellant convicted after trial, a possible sentence of 9 months may have been imposed. In the circumstances of this case however, where a guilty plea had been entered from the beginning, where there is no previous convictions and the amount converted was $2,500.00, an appropriate sentence would have been around six/seven months.

The court could then consider whether there were other mitigating circumstances it could take into account in favour of him. In this case, the fact of unreasonable and excessive delay coupled with the fact that the Appellant had undertaken positive changes in his circumstances (being involved in charity work, and holding a steady job as a school teacher, staying out of trouble, not to mention that he is now married with three children) since commission of the offence were relevant factors which should have been taken into account. Whilst I note these were taken into account by the learned Magistrate, I must accept submission of learned Counsel Ms. Fairburn that these were not adequately considered and thereby giving rise to a sentence which was not in line with the circumstances of this case.

There is no formula to sentencing. It always entails a balancing exercising by a Magistrate or Judge and so Prosecuting and Defence Counsels should assist as much as possible in the sentencing process by providing such details and case authorities as is appropriate to each case. Circumstances of the case and offender vary from case to case and although useful guidelines can be obtained in the process each case has to be considered on its merits (see Joel Likilua and Allen Kokolobu v. Reginam^[5] at page 149, his Lordship Ward CJ states: “Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide”).

The learned Magistrate did take into account the element of trust placed on the accused as a bank teller and that a betrayal of such trust warranted a custodial sentence. I agree that a custodial sentence was warranted in this case. See Patteson Runikera v. Director of Public Prosecutions^[6] where his Lordship Ward CJ states: “In cases of breach of trust by an employee, an immediate custodial sentence would always be a proper sentence.” Also Edward Fiuadi v. Reginam^[7]:

“The principle involved here is that the appellant, as an employee of the Marine Department, was in a position of trust. Any offence of dishonesty is serious but, when it is committed by a person in a position of trust in breach of the trust placed in him, it is serious.

An employee, by the nature, of his employment always has opportunity to steal his employers' property. The public service and all commercial undertakings can only function properly if they can rely on the loyalty and honesty of the people they employ.

It must be clearly understood that, in any offence where a breach of trust is involved, a sentence of imprisonment will always be appropriate.”

The level of responsibility and trust imposed upon the Appellant also needs to be borne in mind during the sentencing process. It is not the same as the level of responsibility and trust that would have been placed upon say a Member of Parliament or upon someone like an Assistant General Manager where one expects a higher level of accountability. It is important to keep this distinction in mind. The higher the level of responsibility, the higher the level of trust and so where there is a breach of that trust, one would expect a more severe penalty to be imposed. In Patteson Runikera (ibid) Ward CJ made reference to this when he said “In a case such as this where the appellant was in a position of special trust, a sentence of 6 months imprisonment would suggest substantial allowance has been made for the mitigating factors.” The accused in that case had been charged with a number of forgery and related offences and sentenced in the Magistrates Court to a total of six months imprisonment with three months suspended.

The learned Magistrate also took into account that the Appellant was a first offender and his plea of guilty. In Simon Peter v. Regina^[8] the court reiterated that the personal circumstances of an accused were relevant factors to be taken into account. In Joel Kikilua and Allen Kokolobu (ibid), the Court gave credit for the guilty plea and that the accused was a first offender by suspending part (six months) of the sentence of 12 months.

In the circumstances of this case, I agree with submissions of Ms. Fairburn that insufficient weight was given to the circumstances of the Appellant.

The learned Magistrate also took into account delay. Delay has always been a relevant matter in mitigation. In Patteson Runikera v. Director of Public Prosecutions (ibid) at page 2, Ward CJ was quite critical about the delay of five years that had occurred in that case:

“The delay was a very serious factor in the case. The offences were committed in November 1982 and were noticed and reported by the auditors in 1984. It was only reported to the police for prosecution in January 1986 and came before the court in February, 1987. Such delay is scandalous and is likely to cause injustice. The learned magistrate was right to comment on it and to allow for it in his sentence.”

His Lordship felt delay was not sufficiently given credit for and allowed three months of the six months custodial sentence imposed to be suspended.

See also Dalo v. Reginam^[9] at page 44 his Lordship Ward CJ states:

“Where magistrates find that there has been serious delay and no reasonable explanation is given, they should consider reducing the sentence very substantially because of the aggravating effect of a sentence imposed long after the offence.”

In Richard Selwyn v. Reginam^[10] a sentence of six months for simple larceny was partly suspended on account of substantial delay. The accused served only 1 month of his sentence. (See also Regina v. Alick Sura and Others^[11] and Regina v. Fred Gwali and John Morrison^[12]).

In this instance, the learned Magistrate sought to distinguish delay by suggesting that it had been caused by the ethnic troubles. Unfortunately it is not clear if this was the explanation put forward by Prosecution or something he took judicial notice of. Whilst the ethnic troubles this nation had gone through, might have contributed, there is no evidence to suggest that that was the actual cause of delay especially in the initial stages. The offence came to light in August 1998. Although the first signs of ethnic troubles commenced around October 1998, the Police Force continued to carry out its work throughout 1999. In view of the admission by the Appellant from the outset, I would have expected that the Appellant’s case could have been dealt with within a period of six months. Secondly, the delay which resulted from the ethnic troubles had nothing to do with this Appellant; it was not his fault. The criminal process failed because of the insurmountable problems it seems the Police Force was subjected to during that period. The fact of delay therefore should not be taken out against him. It is a very relevant factor in this Appellant’s case. In Patteson Runikera (ibid) Ward CJ pointed out the effects of delay on sentence:

“Delay generally affects the sentence in three ways. It increases the anxiety of the accused man who has it “hanging over him” for that time. This will obviously only apply from the time of discovery of the offence – any delay before that is entirely in the hands of the offender. The second factor relates to the plea because any person must realize that, the greater the delay, the more chance the prosecution will be unable to prove their case. Thus, a plea of guilty entered with that knowledge becomes a strong mitigating factor. Finally, it only gives the offender a chance, denied to many accused, of showing that he really does intend to reform and stop offending.”

The Appellant had admitted the offence well back in August 1998. Since then he has gotten married, and has held a steady job as a teacher in a High School. He has not been involved in any similar offences and has demonstrated remorse and a genuine desire to reform and move on in life. A long custodial sentence is bound to have a severe effect on his new life and a crushing effect on him. I am satisfied insufficient weight was given for delay.

Decision: I am satisfied in the circumstances the sentence of 12 months was excessive and should be reduced to six months. In giving credit for delay, I am satisfied part of the sentence should be suspended. In my respectful view 3 months should be suspended for one year on condition he does not re-offend on any similar and/or related offences. This recognizes that he is remorseful and has sought to change and re-direct his life and move on. The suspended sentence should not only prevent him from re-offending but gives him further opportunity to prove to himself and the Community he lives in that he is a changed person. The sentence of 3 months is punishment for the serious breach of trust placed on him and a clear warning to others that they are also likely to face custodial sentence if a similar offence is committed.

Finally it needs only be pointed out to correct any misconceptions in the submission of Mr. Talasasa made earlier in his submissions when he complained that he had not been served with certified copies of the records of proceedings. Where the appeal is against sentence only, it is not a requirement for the Registrar of High Court to provide a copy of the proceedings let alone certified copies (see section 289(d) of the Criminal Procedure Code). There is no requirement for certified copies to be provided and especially where copies provided are Photostat copies, unless there are concerns about the accuracy of those copies of proceedings provided.

Orders of the Court:

1. Quash sentence of 12 months.
   
2. Substitute sentence of six months with three months to be suspended for one year on condition Appellant does not re-offend on any similar offence.
   
3. Appellant is to serve only three months in prison.
   
4. This order is to be certified to the Magistrates Court.
   

THE COURT

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^[1] HCSI-CRC 31/96 27^th August 1996 Lungole-Awich J. (unreported)
^[2] HCSI-CRC 38/91 23^rd January 1991 Ward CJ (unreported)
^[3] HCSI-CRC 95 of 1993 31^st October 1996 Lungole-Awich J. (unreported)
^[4] HCSI-CRC 37 of 1990 2^nd November 1990 Ward CJ (unreported)
^[5] (1988/89) SILR 10^th November 1989 per Ward CJ
^[6] HCSI-CRAC 14-87, 23^rd March 1987, per Ward CJ at page 2
^[7] HCSI-CRAC 24-89, 12 December 1989, per Ward CJ at page 3
^[8] HCSI-CRAC 312-03, 5^th December 2003 at page 2
^[9] HCSI-CRAC 20-87, 23^rd June 1987 per Ward CJ.
^[10] HCSI-CRAC 25-91, 23^rd October 1991 per Muria J.
^[11] HCSI-CRC 46-93, 4^th August 1993, per Palmer J.
^[12] HCSI-CRC 21-97 & 1-98, 12^th February 1999, per Kabui J.