Fa'aramoa v The Crown [2005] SBHC 19; HCSI-CRC 185 of 2004 (8 November 2005)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case 185 of 2004

In the matter of: an appeal against conviction and sentence

BETWEEN:

ALFRED FA'ARAMOA
Appellant

AND:

THE CROWN
Respondent

Date of hearing: 18, 19 and 22 August 2005
Date of judgment: 8 September 2005

JUDGMENT

1 This is an appeal against conviction and sentence in respect of a decision of the Magistrates' Court on 21 April 2004 and an appeal against sentence in respect of a decision of the Magistrates' Court on 8 July 2004. The matters are separate, except in the sense that the custodial sentence of 8 July 2004 was expressed to run at the expiration of the custodial sentence imposed on 21 April 2004.

2. The conviction of 21 April 2004 concerned multiple counts of obtaining a valuable security by deception. The listing of the matter has been delayed whilst efforts have been made to produce the reasons given by the magistrate for his decision. It has proved impossible to locate those reasons and with the consent of the respondent, the convictions are, for that reason, quashed.

3. The only remaining question for this court to decide is whether to remit the matter to the magistrates' court for a rehearing, or to enter an acquittal in this court. On that question this court was told by the respondent that in the event of a remittal to the magistrates' court it is their intention to discontinue the proceedings on the grounds that no purpose would be served in pursuing the matter. This is a public policy decision that the respondent is entitled to make and is essential a matter for the respondent and not for this court. Taking that into account, however, it appears to this court that there would be little to be achieved by remitting the matter to the magistrates' court, as everyone now knows what will happen there.

4. For that reason this court hereby enters and acquittal in respect of all those charges the subject of the conviction of 21 April 2004.

5. Turning to the appeal against sentence imposed on 8 July 2004, which sentence was expressed to be consecutive to the term imposed in the proceedings hereby quashed, it must be that that sentence shall be deemed to run from an earlier date. That date, the court has been informed, is 5 February 2004. This court makes that order, that any sentence imposed by the magistrates’ court on 8 July 2004 shall be deemed to have commenced on 5 February 2004.

6. As to the substance of the second appeal against sentence, it is brought on four grounds. The first ground on which the appellant seeks the intervention of this court in the sentencing process is based on the suggestion that the sentencing court failed to consider certain factors said to be mitigating. These factors include the guilty plea, the loss of a career, prior good character and family commitments. There is also a suggestion that the two year delay in prosecution should be considered as capable of providing mitigation.

7. In the brief reasons given for the imposition of the sentence the sentencer makes reference in summation to the lack of previous convictions, to the guilty plea, to the remorse expressed and to references put forward on his behalf. It would be difficult if not plainly wrong of this court to therefore conclude that the magistrate did not take these matters into account. They were in the mind of the sentencer as the sentence was formulated. It is correct to say that the particular effect that each individual factor had on the mind of the magistrate and in particular in the length of the appropriate sentence is not specified. But this is not to be expected. Sentencing is not a mechanical or electronic process.

8. At most this ground of appeal draws the attention of this court to the point that a magistrate might be well advised to state that the court has reduced a particular sentence to acknowledge an early indication of a guilty plea. That is to be encouraged as a matter of public policy. But the only other way that this court can determine whether a particular piece of mitigation referred to by the magistrate was given any or sufficient weight is if the magistrate declares the same or by looking at the end result, that is the actual sentence, and considering whether in the circumstances the sentence itself suggests that those matter must have been taken into account.

9. Delay in prosecution in the circumstances of Solomon Islands at the time of these offences should, in my view, never amount to a substantial mitigating factor.

10. The second ground of appeal relates to the suggestion that the magistrate sentenced the appellant on the wrong factual basis. This goes to whether the magistrate rejected the suggestion that there was a basis in custom for the demand made. It is clear that the magistrate was aware of the basis in custom for the claim, and it is equally clear that the magistrate found that this conduct fell outside the bounds of custom and into the criminal law. It is also said in the reasons for judgment that the magistrate took into account the agreed facts laid before the court and the mitigation put forwards. No doubt if the magistrate was not prepared to accept that mitigation she would have said so, and the factual basis on which the appellant was to be sentenced further explored. Whilst more precise language could have been selected to express the notion that this demand was not warranted even in custom – it being in substance more than one might reasonably have expected given the circumstances (no more than one red shell money, I believe) and coupled with threats to burn down a service station, the end result does not seem to support this ground of appeal.

11. Ground three of the appeal relies on 'manifestly excessive'. The sentence imposed for these offences of demanding with menaces, going armed in public and theft was two years imprisonment. Most of that which is set out in the appellant’s head of argument is supposition. All that this court believes that it can do in an objective way is to consider the actual sentence, take into account the circumstances of the offences as they have been described during this appeal and before the court below and determine whether the sentence imposed falls within the range of acceptable sentences for such offences. In particular this court, for this ground of appeal to succeed must find that the sentence imposed was outside reasonable bounds.

12. Ground four of the appeal is of little significance now that the first conviction has been quashed. It concerned the question of the total sentence to which the defendant became subject when all sentence were considered. I do not propose in this appeal to embark on the hypothetical exercise as to whether the two years in addition to the other sentence was appropriate.

13. It is not for this court to determine that it may not have sentenced in exactly this way, or to substitute its own view of the offences for an otherwise quite proper view formed elsewhere. What the appellant must demonstrate is that this sentence was quite unwarranted in the circumstances. That has not been done in this appeal. This sentence is well within the acceptable range of sentences for offences as grave as indeed these offences are. The appeal against the length of sentence is dismissed. As already said, the appeal is successful to the extent that the sentence is deemed to have begun at an earlier date following the quashing of the earlier conviction.

Goldsbrough J