Ha'arai v Regina [2005] SBHC 32; HCSI-CRC 561 of 2004 (28 January 2005)

HCSI-CRC 561-04

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 561 of 2004

SIMON HA'ARAI

-v-

REGINA

(Palmer CJ)

Date of Hearing: 26th January 2005
Date of Judgment: 28th January 2005

S. Lawrence for the Applicant
J. Caulchi (Director of Public Prosecutions) for the Crown

Palmer CJ: The Applicant was convicted by the Central Magistrates Court sitting at Marau, Guadalcanal Province on 11th November 2004 and sentenced to imprisonment. According to the affidavit of Stephen Lawrence filed in support of the Application for Bail lodged 24th November 2004, the total sentence imposed was given as 1 year 7 months as follows:

1. Six months imprisonment for unlawful assembly (concurrent with sentences in counts 2 and 3);

2. One year and one month imprisonment for demanding money with menaces (concurrent with sentences in counts 1 and 3);

3. Two months imprisonment for criminal trespass (concurrent with sentences in counts 1 and 2);

4. Three months imprisonment for unlawful assembly (consecutive with sentences imposed on counts 1, 2 and 3 but concurrent with sentence on count 5); and

5. Six months imprisonment for affray (consecutive with sentences on counts 1, 2 and 3 but concurrent with sentence on count 4).

According to what was deposed to in that affidavit, if counts 4 and 5 are made consecutive with counts 1, 2 and 3, the total sentence arrived at should be 1 year 10 months, and not 1 year 7 months as stated. After calling for the file from the Magistrates Court and on perusing the court records, it revealed that only the sentences in counts 2 and 4 were made consecutive to each other resulting in an overall sentence of 1 year and four months only. Learned Counsel should be more careful when lodging urgent applications to avoid misleading the court about the facts of a case.

The sentences imposed by the learned Magistrate as extracted from the records were as follows:

1. Count 1 unlawful assembly: 2. Count 2 demanding money with menaces: 4. Count 6 Affray: 5. Count 7 Unlawful Assembly: 3. Count 3 Criminal trespass: Total to serve:

6 months concurrent 1 year 1 month 2 months concurrent 3 months consecutive 6 months concurrent 1 year 4 months

I have had opportunity to peruse facts of this case which revealed that the Applicant was but one of five accuseds that had gone to the house of one of the Complainants, and demanded compensation with menaces. The learned Magistrate found they went as a group, one of them was armed with a knife, they were loud, rough and aggressive, they actually threatened to do harm and damage. The victim, a woman was terrified by their behaviour, she feared for her life. They were unreasonable and refused to listen. They did not even bother to enlist the assistance of any chief or elder in their community. The learned Magistrate took into account their different roles or part played, identifying this Applicant and another, Amos Ikipaere as the ring leaders and main instigators of what transpired that day. The facts also disclosed they were under influence of kwaso, an illegally brewed drink. The learned Magistrate also found that a fight occurred thereafter.

He also pointed out in his judgement that as the offence of demanding was prevalent he intended to impose a deterrent sentence. He also took into account the differences in the age groups of the accuseds and passed sentences reflecting that as well.

The sentences imposed ranged as follows:

1. Amos Ikipaere – (19 years) 1 year 9 months.

2. Stewart Paere – (18 years) 9 months but 6 months suspended for two years.

3. Ramo Houma – (17 years) 9 months but 6 months suspended for two years.

The Applicant lodged appeal against conviction and sentence on 24th November 2004. The substantive appeal is being listed for hearing on 14th February 2005 at 11.00 a.m. In the meantime Applicant appeals for bail pending hearing of his appeal.

It is very rare for bail to be granted pending hearing of an appeal especially where a conviction has been entered after a guilty plea. I made this very clear at the bail hearing itself. Unless it can be shown there is a manifest error on the face of the record which would have warranted the intervention of this court or that sentence is manifestly excessive on its face, no reasonable tribunal would allow bail more so where the substantive appeal is already listed for hearing in a couple of weeks time and it hasn’t been shown that no real prejudice will occur in so far as the rights of this Applicant are concerned.

I have outlined in brief the facts and sentences imposed. I have listened carefully to grounds for appeal bail sought to be relied on in this case. I am not satisfied it has been shown to my satisfaction that this Applicant should be granted bail pending determination of his substantive appeal. The fact disclose this was a serious case, there were aggravating features present and that the sentences imposed cannot be said at this point of time without hearing substantive argument, to demonstrate a prima facie case of being manifestly excessive. Even if convictions in respect of the charges in counts 1, 3, and 7 should be set aside it would not have made difference to the overall sentence imposed. The two sentences made consecutive relate to two separate offences, one for demanding the other for affray. Whether court would reduce sentence further is a matter which will best wait for the substantive hearing of appeal. The major concern seems to be that there is possibility of delay in listing. That has been taken care of. In the circumstances I am not satisfied bail should be granted and application is dismissed.

THE COURT