Ghele v Reginam [2004] SBHC 38; HC-CRAC 169 of 2004 (6 May 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Appeal Case No. 169 of 2004

BOTI GHELE

-v-

REGINAM

HIGH COURT OF SOLOMON ISLANDS
(F.O. KABUI J.).

Date of Hearing: 5 May, 2004 at Gizo.
Date of Judgment: 6 May, 2004.

D. Tiqulu for the Appellant.
H. Kausimae for the Respondent.

JUDGMENT

Kabui, J.: This is an appeal by the appellant filed on 26^th April 2004 and later amended on 30^th April 2004 by his Counsel. This appeal is against sentence passed by the Principal Magistrate in Gizo on 18^th April 2004. The grounds of appeal are (1) that the total sentence of 12 months imprisonment for malicious damage and 3 months imprisonment for common assault were manifestly excessive and (2) that the Principal Magistrate failed to advise the appellant to seek legal advice from the Public Solicitor at Gizo before the appellant was arraigned in the Magistrate Court.

The Facts.

The facts were not in dispute. The appellant on 17^th April 2004 being angry with his uncle threw stones at a loader being a heavy machine owned by Delta Company Ltd. and caused damage to parts of that machine. The first stone went through the rear wind-screen and out through the front wind-screen. The second stone caused damage to the glass-screen on the side of the machine. When a Leong Junguan went towards him and spoke, the appellant turned around and hit him on his chest with his right hand. The damage caused to the loader machine is estimated to be $38,750.00 in total. That is to say, the value of the rear wind-screen is $11,625.00, the front wind-screen, $19,375.00 and the side glass screen $7,750.00. The appellant pleaded guilty to both charges of malicious damage, contrary to section 326(1) of the Penal Code Act (Cap. 26) “the Code” and common assault, contrary to section 244 of the Code. For the malicious damage charge, the appellant was sentenced to 12 months imprisonment and for the common assault charge, the appellant was sentenced to 3 months imprisonment both sentences to run concurrently. So, the effective sentence is 12 months imprisonment.

The Appellant’s Case.

Counsel for the appellant, Mr. Tiqulu, argued that the appellant being unrepresented at the hearing, the chance that all relevant mitigating factors should have been put to the court had been missed thus disadvantaging the appellant. Counsel pointed out that the appellant was a young person apart from being of good character and pleading guilty to both charges against him. Counsel also pointed out that the appellant co-operated with the Police well in the investigation of the offences alleged to have been committed. Counsel also argued that the Magistrate should have made adequate enquiry of the appellant so as to find out whether the appellant did have a viable defence in law. Counsel further argued that the facts of the case did warrant a short and sharp sentence and not the sentences passed in this case. On the second ground of appeal, Counsel argued that there was no evidence to suggest any urgency about the case so that it must be heard on a Sunday thus depriving the appellant of an opportunity to seek legal advice from the Public Solicitor in Gizo. At least, so argued Counsel, the appellant should have been reminded that he could see the Public Solicitor in Gizo and for that reason to adjourn the case to Monday morning the next day, 19^th April 2004.

The Crown’s case.

Counsel for the Crown, Mr Kausimae, said he had nothing to say although he was served with the appeal papers in good time. I was a little surprised but it was a matter for him to decide and I respected his decision to say nothing. I had no assistance from him as a result.

The Court Record.

The charges were read out and explained to the appellant by the Magistrate. The appellant was taken as having understood the charges by saying “Hem true” (It is true) to each charge. The facts were produced, read and explained to him and the appellant confirmed the correctness of the facts. On that basis, the Magistrate entered a guilty plea and convicted the appellant on his own plea of the two charges against him. In mitigation, the appellant said that he did what he did because his uncle swore at him and he got angry. With regards to the assault, he said the victim approached him aggressively and he turned around and hit him. The Magistrate did take into account the appellant’s guilty plea and his good character with no previous conviction. The Magistrate however said that the mitigating factors had shown that the appellant’s conduct had nothing to do with the loader machine and yet chose to damage an expensive piece of equipment as a result of getting angry with his uncle.

Decision of the Court.

In my view, the appellant being 25 years old is an adult as found by the Magistrate. I do not think it is a factor of mitigation to be added in favour of the appellant. I think the Magistrate was right in being influenced by the conduct of the appellant in deliberately choosing to attack the loader machine and not his uncle who had made him angry. There has been a tendency in our communities these days for persons being made angry by someone else or being upset about something else taking that anger out on others’ properties who are totally unconnected with the source of anger or disappointment. Very often such properties damaged are expensive in value and those who own them are the victims of this sort of behaviour. For Solomon Islanders who do not often insure their properties or anyone else in that category such behaviour resulting in damage or even destruction of their properties, for some of them, such properties representing their life time savings, is most wicked and destructive indeed. The courts should therefore reflect this undesirable evil in their sentences. Those who think that they can damage other peoples’ properties at will must think again, because the courts will not tolerate that sort of behaviour. In this case, Delta Company Ltd may have insured their heavy equipment including the loader machine and so they will claim the cost of repair from their insurance company. But that is not the point because I only assume that there is sufficient insurance cover in Delta Company Ltd’s case. The point is that those who think they have the right to cause damage to the properties of innocent parties, such behaviour resulting from their own domestic disputes or simply being stupid must face the full force of the law. I am not suggesting however that the victim suffering such damage should be the other party to any dispute that arises but taking out ones anger on someone else’s property is not right and illogical behaviour. I believe the Magistrate took the same stand in this case on the basis of deterrence sentencing policy. The appellant on being confronted by a company representative for damaging their property, instead of apologising, turned around and hit Leong Junguan on his chest. The appellant was most uncompromising in his attitude towards the owner of the loader machine. He gave no thought to the value of the loader machine and I believe that if I order him to pay the damage he caused he would not have the means to do so. He disputes the valuation of the damage as being too much without the slightest idea of knowing the true replacement value in the open market to replace the screens damaged by him. The Magistrate was right in rejecting his explanation in mitigation for damaging the screens of the loader machine. I am aware of the cases of Fanasia v. DPP, Yaneo v. DPP [1985/86] SILR 84 and 199 respectively and John Solo v. Regina, Criminal Appeal No. 089 of 2000. In those cases cited, the appellants appealed against both conviction and sentence despite guilty pleas having been entered followed by convictions. This is not the case here where the appeal is against sentence only so that the question of making further inquiry by the Magistrate to reveal any possible defences does not arise for consideration. As a matter of fact, any possible defence in this case would have been mere speculation on the facts of the case.

As to the second ground of appeal, section 10 (2) (c) of the Constitution is very clear as to the need to give an accused person adequate time and facilities for the preparation of his defence. This is a fundamental right of every person who is charged with a criminal offence. I find it rather odd for the Magistrate Court to sit on a Sunday to hear this case without any evidence of urgency for hearing. Having said that, I do not think the non-compliance with section 10 (2) (c) of the Constitution would have an effect on the legality of the sentences passed by the Magistrate because the relief for contravention of any fundamental rights is to be obtained under section 18 of the Constitution. The legality of the sentences is therefore beyond question. Whilst 12 months imprisonment for malicious damage is regarded by the appellant as excessive, I think otherwise in this case in terms of its deterrence purpose to bring the message home that property ought to be respected by all of us. In terms of section 293 (2) (a) of the Criminal Procedure Code Act (Cap. 7) “the CPC”, this Court can quash the sentence passed by the Magistrate and replace it by either reducing it or increasing it with the sentence this court thinks appropriate in the circumstances of this case. Section 293 (2)(a) states-

“...At the hearing of an appeal the High Court may-

(a) if it thinks that a different sentence should have been passed, quash the sentence passed by the Magistrate’s Court and pass such other sentence warranted in law( whether more or less severe) in substitution therefore as it thinks ought to have been passed...”

In the exercise of my power under section 293 (2) (a) of the CPC cited above, I quash the sentence of 12 months imprisonment on the count of malicious damage and substitute for it a sentence of 18 months imprisonment effective from 18^th April 2004. I do nothing to the 3 months imprisonment the Magistrate imposed on the count of common assault so that both sentences are to run concurrently. As I said in sentencing in R v. Kennedy Bela, Criminal Case No. 174 of 2002, mitigating factors are not considered as rights of offenders. They are matters to be considered only in favour of the prisoner in order to influence the trial judge or magistrate to pass a lesser sentence in a particular set of facts in a particular case. It is time Solomon Islanders do respect the property rights of others. Your appeal is dismissed. You are entitled to appeal the sentence I impose on you.

F.O. Kabui
Puisne Judge