Ha'arai v Regina [2005] SBHC 39; HCSI-CRAC 561 of 2004 (21 February 2005)

HCSI-CRAC 561-04

HIGH COURT OF SOLOMON ISLANDS
Criminal Case Number 561 of 2004

SIMON HA’ARAI

-v-

REGINA

(Palmer CJ)

Date of Hearing: 14th February 2005
Date of Judgment: 21st February 2005

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

Palmer CJ: The Appellant was convicted on a number of related charges, count 1 - unlawful assembly (6 months concurrent), count 2 - demanding money with menaces (1 year 1 month concurrent), count 3 - criminal trespass (2 months concurrent), count 4 - affray (3 months consecutive) and count 5 - unlawful assembly (6 months concurrent), and sentenced to a total of 1 year 4 months imprisonment. The offences were alleged to have been committed on the afternoon of 1st August 2004.

The facts reveal that the Appellant with four others went to Niu Island to demand compensation. They were drunk with kwaso (local drink) when they went. On arrival on the island they saw Mrs. Veronica Saumara and demanded that $500.00 be paid forthwith. When she tried to explain to them that she did not have money with her to spare and asked for time to give it, as well as explaining that her husband was not at home, they became abusive, loud and aggressive and started banging or hitting the wall of her house threatening to pull down the rafters of the house. This naturally caused fear in the minds of those around at that time. One of the Defendants, the ring leader was seen to have a knife at his side which made the incident extremely frightening for the victim and others. This conduct formed the basis for counts 1, 2 and 3 (unlawful assembly, demanding money with menaces and criminal trespass).

The learned Magistrate had correctly made counts 1 and 3 concurrent to the sentence imposed for count 2, being the substantive or principal offence.

As they left, a fight erupted with some boys from the island. This conduct formed the basis for the sentences imposed in counts 4 and 5.

The Appellant appeals against his sentence on the basis that the sentence on Count 4 should have been ordered to be served concurrently to the sentences on all other counts and the sentence was in all the circumstances manifestly excessive. The basis for this appeal ground is that the two sets of offences were inextricably linked; they occurred immediately adjacent to each other in time and involved all complainants from Niu Island. They occurred as a result of the demand for compensation.

Whilst that may be correct, I do not accept that they should be necessarily described as forming one single transaction. There was a time lapse though short, for which they had opportunity to walk away from the situation without having to enter into a fight with the boys from Niu Island, who naturally would have been provoked by their behaviour. The most sensible and reasonable thing to do in the circumstances would have been to get into their canoe and paddle away. I do not accept that they should be regarded as a single transaction, they were sufficiently disjointed to warrant separate treatment by the learned Magistrate.

It has also been submitted in this appeal that the sentences should have been made concurrent as they offend the totality principle, see Augustine Laui v. Director of Public Prosecutions¹: where the learned Chief Justice Ward said "... where consecutive sentences are passed for a number of offences, the Court must not just consider whether each sentence is appropriate for each offence but look also at the total to ensure it is not out of proportion to the overall circumstances. Where it does appear to be too great, the court should reduce the total term of imprisonment by making some or all the sentences concurrent."

In the alternative, the Appellant argues that the sentence on Count 4 should have been made concurrent on the basis that the totality principle is offended by the length of the total term of imprisonment to be served.

A number of cases have been submitted for my consideration. The first is that of R. v. Eric Tala, a case in the Magistrates Court involving a juvenile accused in the company of others. The accused held a gun and demanded $500.00 to be paid over. He was sentenced to 9 months imprisonment. Whilst this may appear to be fairly low, it must be borne in mind that there were other sentences for which this accused had been charged with resulting in a total of 22 months being served. A sentence of 1 year 1 month for demanding money with menaces in the circumstances cannot be described as being out of range for such sentences.

In R. v. Alick Sura and Others² which also involved a demanding with menaces, the accuseds were fined $250.00 each. The facts however were much different, as well as the delay factor which was a relevant consideration which the court took into account. That case is distinguishable on its facts and I need say no more.

Other cases³ were referred to with sentences ranging from a sentence of six months imprisonment suspended for 12 months to six months imprisonment, and three years, in another case. Compared in the light of those sentences, it cannot be seriously contended that this sentence was manifestly excessive in the circumstances. I note varying sentences were imposed for other accuseds but that was carefully done to reflect on the culpability of each accused as perceived by the presiding magistrate. I find nothing wrong about his sentencing approach, in fact this has been done with sensitivity to the varying needs of each accused such that I do not find occasion or fault to intervene.

The prevalence of this type of practice can only be explained by the period of lawlessness this country went through and the resurgence of such unlawful activities. Our local communities need to realise that with the resumption of the law and order through the assistance provided by the Regional Assistance Mission to Solomon Islands ("RAMSI") this type of behaviour will no longer be tolerated. People must realise that if they have any claims in custom including compensation, they must settle these by peaceful customary means through their local chiefs, elders or other leaders. Demanding money with menaces is a crime and those who refuse to heed the warning will expect to be punished by the law if convicted. The learned Magistrate correctly applied his mind to the appropriate sentencing principles bearing in mind the elements of deterrence and rehabilitation and tailored his sentence to suit each accused in this case. I find no error in his sentencing approach which would sufficiently warrant the intervention of this court.

I am not satisfied the sentences imposed were manifestly excessive and I dismiss the appeal.

Order of the Court:

Appeal dismissed.

The Court.

Endnote

1. Unrep. CRAC 11-87 per Ward CJ at pages 2-3
2. CRC 46-93 4th August 1993
3. R. v. Donsdale Lomo and Nicholas Naagi, R. v. John Limei, and Daniel Fa’afunua v. R.