Gerea v Regina [2005] SBHC 34; HCSI-CRAC 243 of 2004 (4 February 2005)

HCSI-CRC 243-04

HIGH COURT OF SOLOMON ISLANDS
Criminal Appeal Case Number 243-04

JOHN GEREA

-v-

REGINA

(Palmer CJ)

Date of Hearing: 24th January 2005
Date of Judgment: 4th February 2005

K. Averre (Public Solicitor) for the Appellant
S. Cooper for the Respondent

Palmer CJ: The Appellant was convicted by the Central Magistrates Court on 20 October 2003 on the following charges:

1. Common assault contrary to section 244 of the Penal Code.

2. Going armed in public contrary to section 83 of the Penal Code.

3. Threatening violence with a firearm contrary to section 42 of the Firearms and Ammunition Act.

4. Discharging firearm in a public place contrary to section 44 of the Firearms and Ammunitions Act.

The particulars of the offences read as follows:

1. On 16th May 2003, did unlawfully assault a person namely Mailin Dova.

2. On 16th May 2003, did go armed in public without lawful occasion in a manner that caused fear to persons namely Baddley Vaike and Belshazzar Kalamo and Patteson Mani.

3. On 16th May 2003, having possession of a firearm with intent to intimidate a person namely Belshazzar Kalamo to refrain from doing an act did threaten by word of mouth to harm the said person with the use of the said firearm.

4. On 16th May 2003, without reasonable excuse did discharge a firearm in a public place to wit the King Solomon Hotel.

Appellant pleaded guilty to all charges and sentenced as follows:

Common assault: 9 months.

Going armed in public: 18 months.

Threatening violence with a firearm: 18 months.

Discharging firearm in a public place: 6 months.

He appeals against sentence under four grounds:

1. The learned Magistrate failed to take proper account of the mitigation.

2. The sentences are manifestly excessive.

3. The sentences or some of them should have been made concurrent.

4. Proportionality.

1. Mitigating factors

What is allowable for mitigating factors is a matter within the discretion of the court, and may be withheld if there is a proper reason for doing so. I have perused records of proceedings of the lower court but cannot be satisfied the learned Magistrate failed to take into account relevant mitigating matters. The only critical issue raised under this ground relates to whether sufficient weight was given to the issue of discount on guilty pleas.

The relevant part of his sentence read as follows:

"I am asked to afford the defendant a "full discount" in relation to those guilty pleas. I am unable to do so. These are not timely or contrite pleas. The Defendant apparently made admissions in interview which he, by his earlier plea retracted. I accept that he may not have had benefit of legal advice at the time and I accept that the Defendant did not know full details of the offences at the Court hearing. I will take the guilty pleas into account but I cannot take them fully into account."

A number of useful sentencing guidelines have been pronounced by the English Courts and followed in this jurisdiction in similar circumstances. One of those guidelines provides, that a defendant who has pleaded guilty may be granted some reduction in what would otherwise have been the proper sentence for the offence – see R. v. Meade[1]. In that case a young man, 19 years of age with several previous convictions, with a group of other youths had taken part in a riot resulting in an attack on a Police Station, cars being overturned and a boarded hardware shop broken into. Various articles were stolen including some petrol from which a petrol bomb was made and the shop firebombed, completely destroying it. He pleaded guilty to arson and sentenced to imprisonment for 6 years. In his judgment Lord Lane C.J. said:

"A term of five to six years, whatever the age of the offender may be, is in many cases of using a petrol bomb a perfectly appropriate sentence, because these weapons are rightly called bombs. They can cause the most fearful injuries and this case demonstrates the sort of damage they can cause to property. But having said that, the help that he gave police and his plea of guilty earn him a discount, which does not appear to have been given by the judge."

The sentence was reduced to 4 years imprisonment.

In R. v. Skilton and Blackham[2] the Appellants pleaded guilty to a charge of robbery. They knew the victim a blind man of 61 and had lived in his house at sometime as well as having an affair with the daughter of the old man. They went to his house at a time when no one else was around and when they knew he had some money with him. They attacked him, stuffed tissues into his mouth and pinned him to a chair. They stole £28 and left. They were sentenced to a term of five years imprisonment each. On appeal, Taylor J. said:

"This was an outrageous offence, not merely because there were two of them attacking this one fairly elderly man, but because he was a blind man and because the attack took place in his own house – all aggravating features. Had these two men decided to try and brazen it out by contesting the case and had they been convicted after a trial, this court would, in all probability, have upheld the sentence of five year’s imprisonment.

However,...they did admit their fault very soon afterwards, they pleaded guilty and thereby saved not only time and money, but they saved the victim the ordeal of having to attend court and go into the witness box and be cross examined, they have expressed remorse...."

The court reduced sentence to three and half years.

In both instances the court recognised acknowledged that the sentences imposed by the lower court were proper but yet decided to give further reduction for the guilty pleas.

A second useful sentencing guideline states that where a defendant is granted a reduction of sentence on account of a plea of guilty, the extent of the reduction may be between one quarter and one third of what would otherwise have been the sentence, at the discretion of the sentencer. In R. v. Boyd[3] the appellant pleaded guilty to a charge of burglary of a flat having entered with an accomplice and left without stealing anything. He was sentenced to 3 years imprisonment. On appeal Cumming-Bruce L.J. said:

"The policy of the courts is that where a man does plead guilty, which does give rise to public advantage and avoids the expense and nuisance of a trial, which may sometimes be a long one, the court encourages pleas of guilty by knocking something off the sentence which would have been imposed if there had not been a plea of not guilty. So one asks oneself, if there had been a plea of not guilty, and he had been convicted, what would have been the appropriate sentence? The answer to that is that the appropriate sentence in these circumstances would not have been more than three years. That points to the fact that this sentence was rather on the heavy side, because it did not give sufficient allowance for the plea of guilty."

The sentence was reduced to two years. See also R. v. Robertshaw[4] where a sentence on a rape charge of a girl of 13 years was reduced from 7 years to one of five years imprisonment. Balcombe J. pointed out that by pleading guilty, the appellant "...avoided the necessity for this child to have to go through her ordeal again in the witness box. This is something which this Court is prepared to take into account by way of mitigation and, for that reason and that reason alone, the sentence will be reduced to a period of five years’ imprisonment."

See also R. v. Quirke[5]. In R. v. Fraser[6] a sentence of ten years imposed on a charge of robbery of a bank on a guilty plea was reduced to one of 8 years on appeal. The Court reiterated the approach to be taken per May L.J.:

"We take the view that the principal basis on which a plea of guilty can be prayed in aid by way of mitigation is that it can be said to demonstrate, in at least some cases, true remorse on the part of the criminal concerned."

The court noted that the appellant had earlier written to the court intimating that he was going to plead guilty. His Lordship continued:

"It is also desirable in this type of trial, as indeed in any trial, be it criminal or a civil matter, that it should not be unnecessarily or unreasonably prolonged and made unnecessarily or unreasonably expensive either for the clients or for society in general. For these reasons we respectfully and fully agree with the passage in the judgement of Lawton L.J. to which we have referred, where he said that criminals should be encouraged, so far as it is possible, not to indulge in the sort of tactics which do result in the unnecessary and unreasonable prolongation of trials and consequent expenditure of public money."

The court made a clear distinction between the appellant and his co-accused who had pleaded not guilty to the same charges by giving a discount of two years for the guilty plea. The co-accused received a sentence of ten years after trial.

In this case the learned Magistrate held that the guilty pleas entered were not timely or contrite pleas. The facts however reveal that the not guilty pleas entered on 6th October 2003 were entered after legal advice had been received. Following further advice, guilty pleas were entered on 20th October 2003, two weeks later. It is not correct therefore to say that the not guilty plea entered earlier was made without benefit of legal advice. The evidence rather indicates that after disclosures of the prosecution case, a guilty plea was entered at the earliest possible time. This is quite evident if the history of proceedings is taken into account. He was arrested on 17th September 2003, makes first appearance in court on 30th September 2003 for bail, arraigned on 6th October 2003 but after disclosure of prosecution evidence 14 days later he was re-arraigned and guilty pleas entered. From time of arrest to time guilty plea was entered was only a gap of four weeks. That cannot be said to be not timely. The guilty pleas entered have saved the court and the public time and money. I re-echo the words of Lawton L.J.[7] referred to in R. v. Fraser above, that criminals should be encouraged, so far as it is possible, not to indulge in the sort of tactics which do result in the unnecessary and unreasonable prolongation of trials and consequent expenditure of public money. In this context where a culture had grown during the period of upheaval and lawlessness this country went through resulting in the commission of many offences through use of guns, violence, threats and intimidation with the consequent result in the courts being flooded with such cases as witnesses come forward, guilty pleas must be given due discounts. This will encourage criminals to avoid tactics which cause unnecessary delay and expense. Also not only does it save or avoid victims from having to relive such traumatic incidents in some cases but that it also can be said to demonstrate true remorse on the part of the criminals concerned.

In the circumstances I accept submission that not sufficient consideration was given to the guilty plea in count 1. Had a not guilty plea been entered and the Appellant convicted for the offence I would have expected a sentence of 9 months to be imposed. I reduce sentence to six months.

A third sentencing guideline is that a sentencer may make no allowance for a plea of guilty, or a lesser allowance than would be usual, if there are reasons for departing from the normal course. In R. v. McLoughlin and Simpson[8] two appellants with substantial records, who had raped a young woman at knifepoint, had their appeal against sentence of 15 years dismissed. The Court of Appeal refused to give any further allowances for their guilty pleas on the basis that they were satisfied the sentences were appropriate in their circumstances for the protection of the public. The Court concluded that the two appellants were beyond reform or rehabilitation; that they had taken to crime as a way of life.

In R. v. Davis and Others[9], six appellants pleaded guilty to robbery. They were armed with various weapons and had attacked a bank but were confronted by Police and arrested after some resistance. The court reiterated the position that criminals should be encouraged as far as is possible not to indulge in tactics which could only result in unnecessary or unreasonable prolonged and expensive trials at public expense. Lawton L.J. said:

"It is a principle of sentencing that whenever possible the court should take into account as a mitigating factor the fact that the accused have pleaded guilty. The extent to which it is a mitigating factor must depend on the facts of each case. In this case it cannot be a very powerful mitigating factor because, with the exception of George Davis, it is difficult to see how any of them could have run a defence, although it is easy to see that by commenting and giving evidence about the informer, who was alleged to have been with them, they might have wasted a great deal of court time and made some members of a jury think that they had been treated unfairly.

The problem, therefore arises as to what sort of allowance, if any, should be made for that fact that they all pleaded guilty and the whole case was dealt with within one day."

The court reduced sentences of 16 years to 14 years and a sentence of 14 years to 11.

The facts in this case reveal that the Appellant was already in an agitated and angry mood when he took down the rifle from his room at the King Solomon Hotel and discharged a few rounds before threatening the security with it. The circumstances in which these offences were committed should be kept in mind. They were deliberate and intentional acts, committed at a time when he was under influence of liquor. They were committed at a time when law and order was at its lowest. He knew he had in charge a very dangerous weapon and that members of the Public would be terrified by such actions. It was totally unwarranted and unprofessional behaviour from a member of the Royal Solomon Islands Police Force. I fail to see any error in what the learned Magistrate did by imposing a sentence of 18 months each for both offences and six months for the offence of discharging a firearm in public. I am satisfied he took the guilty pleas into proper account in those circumstances and gave appropriate discounts. A not guilty plea could easily have landed the maximum of two years or sentences attracting not less than 20 months.

2. The sentences are manifestly excessive.

I have carefully considered submissions on this but cannot be satisfied that the sentences imposed are manifestly excessive. If comparison is made with similar offences involving firearms, the totality of the sentence imposed was well within range. For instance, in the case of Regina v. James Kili, the defendant was sentenced to a total of 5 years on various charges involving assault causing actual bodily harm, malicious damage, intimidation, common assault, and threatening violence with a firearm. R. v. Lawrence Kelesiwasi, the defendant also received a total of 5 years for similar related offences. In R. v. Thompson Kilatu, the defendant received 5 years six months for offences involving actual bodily harm, intimidation and grievous harm. These defendants were former members of the Royal Solomon Islands Police Force when the offences were committed.

But even when the individual sentences in this case are considered separately, I am not satisfied they can be regarded as manifestly excessive taking the circumstances into account.

3. The sentences, or some of them, should have been made concurrent.

Under section 9(1) of the Criminal Procedure Code [Cap. 7] ("CPC"), where convictions have been entered for several offences in a trial, the court may order that they be served consecutively or to run concurrently.

The general rule on this has been well stated by Ward CJ in Stanley Bade v. Reginam[10] that separate and consecutive sentences should be passed for the separate offences. There are two situations however where this rule may be modified. The first is where a number of offences arise out of the same single transaction and cause harm to the same person. In such situations the sentences should be made concurrent. The second situation is where the aggregate sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case. His Lordship Ward CJ said: "Thus, once the court has decided what is the appropriate sentence for each offence, it should stand back and look at the total. If that is substantially over the normal level of sentence appropriate to the most serious offence for which accused is being sentenced, the total should be reduced to a level that is "just and appropriate" to use the test suggested in Smith v. R. [1972] Crim. L. R. 124."[11]

When the single transaction test and totality principle are considered together, it is clear the common assault charge (count 1) must be treated separately as it entailed an offence against a separate victim. The discharging of a firearm in a public place must also be treated separately as it was clearly a separate and distinct offence to what transpired thereafter although it can be argued and so argued by Defence that it was but part of the same transaction which occurred regarding the unlawful use of that weapon. The effect of the Appellant's action however must be borne in mind in that it caused fear and terror to the public at large. Also he could have desisted from discharging that firearm and not be charged for such offence. It was rightly determined therefore by the learned Magistrate as a separate offence and made consecutive to the other sentences.

The same argument applies to the offences of going armed in public and for threatening with violence. Whilst the two offences are connected, the latter was specific to Belshazzar Kalamo in that a cocked rifle was pointed directly at him. No worse or more frightening example of such conduct of threatening violence with firearm can be imagined. They were deliberate and intentional acts and the Appellant could have desisted from pointing a cocked rifle at Kalamo. The learned Magistrate again correctly decided to make those sentences consecutive.

Having said that, the totality of the circumstances need be borne in mind. Having imposed the appropriate sentence, the court should stand back and look at the total. The facts do reveal that the Appellant had returned to his room and collected his rifle after an angry confrontation with the security staff of the Hotel. The rifle had been brought down intentionally with that in mind. The offence of threatening flowed directly from the offence of going armed. They were directly connected to each other. The totality principle therefore should be applied with the view to determining what is "just and appropriate". In the circumstances, I am satisfied there should be reduction in the total of 36 months to 30 months resulting in the term of 18 months imposed for each offence to be reduced to 15 months each.

Conclusion

On the ground of proportionality I have considered submissions of the Appellant but fail to find any error of law sufficient to warrant further intervention.

Orders of the Court:

1. Allow appeal against sentences imposed in respect of counts 1, 2 and 3.

2. Dismiss appeal against sentence imposed in respect of count 4.

3. Quash sentences imposed in counts 1, 2 and 3 and substitute sentences as follows:

(i) count 1: 6 months.

(ii) count 2: 15 months.

(iii) count 3: 15 months.

4. Total sentence of imprisonment to be served therefore is 42 months or 3 years and 6 months.

The Court

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^[1] (1982) 4 Cr. App. R. (S.) 193 per Lord Lane C.J. and Skinner J.
^[2] (1982) 4 Cr. App. R. (S.) 339 per Griffiths L.J. and Taylor J.
^[3] (1980) 2 Cr. App. R. (S.) 234 per Cumming-Bruce L.J., Stocker and Smith JJ.
^[4] (1981) 3 Cr. App. R. (S.) 77 per Griffiths L.J. Lawson and Balcombe J.
^[5] (1982) 4 Cr. App. R. (S.) 187
^[6] (1982) 4 Cr. App. R. (S.) 254 per May L.J. and Robert J.
^[7] (ibid)
^[8] (1979) 1 Cr. App. R. (S.) 298 per Lawton L.J., Tudor Evans and McNeill JJ
^[9] (1980) 2 Cr. App. R. 168 per Lawton L.J., Michael Davies and Balcombe JJ.
^[10] 1988/1989 SILR 121 at page 125
^[11] (ibid) at 125.