Tepaika v Regina [2005] SBHC 17; HCSI-CRAC 201 of 2005 (27 October 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal No. 201 of 2005

JIMMY PUIA TEPAIKA

-v-

REGINA

Date of Hearing: 24^th October 2005.
Date of Judgment: 27^th October 2005.

P. Little for the Crown.
S. Lawrence for the Appellant.

JUDGMENT

(Kabui, J.): The appellant is the Crown. It has appealed against the leniency of sentences of fines the Magistrate, sitting in Honiara on 3^rd February 2005, imposed on Jimmy Puia Tepaika. The issue is therefore whether or not the sentences the Magistrate imposed were indeed inadequate in the circumstances of this case.

Tepaika had pleaded guilty to eleven counts, one count of being in possession of a firearm without a licence, four counts of going armed in the public, four counts of taking away without due authority election ballot boxes and two counts of preventing transmission of messages.

For being in possession of a firearm without a licence, the Magistrate imposed a fine of $50.00. For going armed in the public, the Magistrate imposed a fine of $600.00 for only one of the counts and imposed no penalties for the other remaining three counts. For preventing transmission of messages, the Magistrate imposed a fine of $50.00 on each count and for taking away election ballot boxes without due authority, the Magistrate imposed a fine of $50.00 on each count.

Grounds of appeal.

The general effect of the grounds of appeal is that the sentences imposed by the Magistrate are all inadequate for the reasons stated in the grounds of appeal. In addition, the fact that the Magistrate omitted to pass any sentence on counts 3, 4 and 5 was an error of law.

The penalties prescribed by law.

Section 5(2) (a) of the Firearms and Ammunition Act (Cap. 80), (the Act), does prohibit any person from possessing any firearm or ammunition without holding a valid licence issued under the same Act under the sanction of prescribed penalties. The facts do show that Tepaika was also in possession of a magazine of live rounds but he was not charged with this offence. Section 5(2)(b)(ii) of the Act prescribes the punishment for possessing a firearm without a licence as being a fine of three thousand dollars or imprisonment for five years or both.

Going armed in the public is a misdemeanour under the Penal Code and attracts a penalty of imprisonment for two years or a fine or both.

Preventing the transmission of a message under section 24 of the Telecommunications Act (Cap. 115), attracts a penalty of a fine of five hundred dollars or imprisonment for three years or both.

Taking away of election boxes without due authority under regulation 50 of the Provincial Election Regulations 1987 as read with section 68 (1)(e) of the National Parliament (Electoral Provisions) Act, (Cap. 87), attracts a penalty of a fine not exceeding two hundred dollars or imprisonment for a term not exceeding six months or both.

There is in each case, a wide discretion in deciding what punishment is appropriate in any particular case. That is, a sentence of imprisonment or a fine or both imprisonment and a fine may be imposed. It all depends upon the facts of the case before the court. In this respect, the Magistrate did say in no uncertain terms that any custodial sentence was out of the question for this case. The Magistrate was entitled to take that view on the facts of this case. That is not an error of law.

What the facts were in this case.

The facts were set out in my review judgment delivered on 14^th January 2005. Briefly, Tepaika was a special constable serving in the Rapid Response Unit in the Royal Solomon Islands Police Force. He set out on a Solair flight bound for Bellona on 5^th December 2002, the date fixed for the provincial elections in Bellona. His purpose for going there was to disturb the election process that was organised to take place in the ten Wards there on Bellona. He took with him a dismantled SR88 rifle and a magazine of live bullets. On his arrival, he assembled the SR88 rifle and slung it across his back and went to the Ward 7 where he entered the room, announced his purpose for being in that room and then removed the ballot box. He repeated the same behaviour in Wards 8, 9 and 10. He also removed the mouthpieces of the VHF radio situated in two villages. He went to his house with the ballot boxes and the two VHF mouthpieces and later returned them.

Politic was the underlying factor in the commission of the offences.

The voters from Honiara were not able to vote on the election date because of a shipping problem. When the ship departed on 4^th December 2002, it did so in the early hours of the morning but with only a few voters on board. Obviously, those few voters would not have had a chance to vote also because that ship would have arrived much later after the polling stations had closed. The small voting population of Bellona would have made it very necessary for every voter to vote there and a majority of one vote could have made a great difference to a winning candidate. Tepaika was then chosen by his community in Honiara to go Bellona to stop the election from proceeding as scheduled for 5^th December 2002. He succeeded in disrupting the election. That is an undisputed fact. The election was later rescheduled and took place on 19^th December 2002.

The disruption of the election by removing the ballot boxes.

The penalty of a $50.00 fine for each of the four counts for unauthorized removal of ballot boxes appears to be lenient on the face of it. The maximum penalty in terms of imposing a fine is $200.00 fine. The fine imposed is a quarter of the maximum fine prescribed by law. The Magistrate took into account the guilty plea, good character, family circumstances and the circumstances surrounding the commission of the offence. However, Tepaika committed the offence when he was armed with a SR88 rifle slung across his back. This was the aggravating factor. In spite of that he had fired no shots and he never did point the rifle at anyone. He used no threatening words when he removed the ballot boxes and the VHF mouthpieces. No one questioned him or opposed him. What he told those present was that he had come to boycott the election. He never damaged the ballot boxes or the VHF mouthpieces. He later returned them. There was no victim of the offence than his action had caused a delay of the election for two weeks. His action was a technical breach of the law of elections. I would not interfere with the fine of $50.00 imposed by the Magistrate.

Going armed in the public.

A fine of $600.00 imposed by the Magistrate is also said to be on the side of leniency. The purpose of carrying the rifle was the idea that to do so would provide a sense of personal security. He was a special constable and he thought perhaps it was legitimate for him to carry a rifle although he knew he was not on government business. He was not sent by election officials to provide security for the election.

He had not gone there specifically to threaten or to fight anyone or that he was drunk and had used the rifle in a manner so as to cause fear in the community. Fear had arisen in the minds of election officials who saw him disrupting the election and felt helpless to challenge or question him. As a police officer, he knew he was not sent there by his commanding officer and went outside of his duties as a police officer to do what he did. For that he must be punished. I do not think, a fine of $600.00 is a too lenient a punishment to impose on him. It is an option legally open to the Magistrate to consider as a sentencing option than imposing a custodial sentence in the circumstances of the case.

Really, there should have been one count only for going armed in the public. . I say this because there is no evidence that fear that had been caused in the minds of election officials had occurred each time he called at each Ward being a separate place from each other though on the same date. It is not right to multiply one incident into several counts.

The fact that he had caused fear in the minds of a number of persons is no basis for laying separate counts without separate facts to sustain each count on the basis that the fear had been caused to persons living in specific identified places and at specific times. In this case, the persons complaining of being in fear have not been identified as belonging to any specific places so as to warrant laying separate counts. Instead, as things stood, their complaints are only evidence of the fear caused by his going armed generally in the public. This must be the reason why the Magistrate did not see fit to impose separate punishments on counts 3, 4 and 5. Double jeopardy might have been at play in the mind of the Magistrate in this case. The Magistrate should have amended the charges by striking out counts 3, 4 and 5 in the first place before the plea was taken. In any case, this omission does not cause any concern to the Crown in terms of safeguarding the public interest. The Crown did contribute to the problem of one count being multiplied into four counts.

Magistrate Courts exercising summary jurisdiction must be vigilant in seeing that accused persons are pleading guilty to correct charges to avoid elements of duplicity and double jeopardy arising in the heat of last minute plea negotiation by lawyers.

Possession of firearm without a valid licence.

There is evidence to suggest that Tepaika surrendered the rifle on 8^th December 2002. SR88 type of firearm could only be found in the Police Armoury at that time. This means that the rifle was the property of the Government. Did he have to have a licence to be in possession of the SR88 rifle being the property of the Government? Tepaika was not one of the categories of persons exempted from licences under section 7 of the Act. Being a special constable at that time, he was able to have access to Police weapons without the strict rules of practice on the carrying and handling of weapons. At that time, police officers who had police firearms in their possessions kept them although some had been persuaded to return them and did return them to the Police Armoury at Rove Police Headquarters.

It would appear that section 53 of the Act by necessary implication does not bind the Crown. That is, the Government does not need an import licence to import firearms for the use of its Police Force. Such firearms are the property of the Government. A police constable being an officer of the Government would need no licence to carry a police firearm under the Act and therefore as such would not commit an offence for that reason under section 5(2)(a) of the Act. But for any police officer to carry any firearm, approval of the Commissioner of Police after consultation with the Prime Minister is necessary under section 5 of the Police Act (Cap. 110). I very much doubt that due approval by the Commissioner of Police had been given to Tepaika to carry any firearm to Bellona for the purpose of disrupting an election to be held there on 5^th December 2002.

For that reason, he should have been disciplined under the Police Regulations which I doubt did happen in this case. In any case a fine of $50.00 is negligible and I will leave the matter to rest. The risk of Tepaika re-offending is but remote indeed.

Again, vigilance on the part of the Magistrate would have revealed the doubt about the correctness of the charge against Tepaika for possessing a firearm without a valid licence under section 5(2)(a) of the Act cited above.

Preventing transmission of messages.

A fine of $50.00 on each count imposed by the Magistrate is again said to be excessively lenient. I do not think the sentence is too lenient in this case. The removals of the VHF mouthpieces were temporary only and caused no injury of any kind at all. In fact, Tepaika returned them with the ballot boxes. He did wrong but the circumstances do not call for any heavier penalty than the one imposed by the Magistrate. I am satisfied that I should not disturb the sentence of a fine as imposed by the Magistrate.

Conclusion.

This case had featured in the Solomon Star and the Magistrate did come under some form of criticism in terms of community service performed by Tepaika. As the court records show, the Magistrate did properly sentence Tepaika on 3^rd February 2005. This appeal arose out of that sentencing decision on the above date. The Magistrate did the right thing on the facts of the case. I will not reverse the sentences she imposed. The appeal is therefore dismissed.

Frank O. Kabui
Puisne Judge