Regina v Madeo [2005] SBHC 43; HCSI-CRC 492 of 2004 (8 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 492 of 2004

REGINA

-V-

ROBERT MADEO

Honiara: Brown PJ

Date of Hearing: 8^th March 2005
Date of Judgment: 8^th March 2005

DPP for the appellant
Public Solicitor for the respondent

Criminal Law – appeal against sentence appeal against inadequacy – assault occasioning actual bodily harm and common assault – on 1^st count sentenced to 12 months imprisonment wholly suspended for 2 years, on second count, no sentence imposed – principles applicable where offender senior police officer abusing his powers – consideration of the “general deterrence” principle; delay in hearing of appeal.

On an appeal by the Crown against the inadequacy of the sentence of 12 months suspended, on assault occasioning actual bodily harm, the Crown argued that the sentencing Magistrate had fallen into error in giving undue weight to mitigating factors on sentence when the nature of the offence called for a sentence of imprisonment. The facts appear from the judgment and the addendum. The respondent prisoner was a senior police officer at the time of the offences.

Held:

1. The public perception of its police force (as one above the law) called for the paramountcy of the “general deterrence” principle when dealing with a very senior police officer who abuses his position of authority in the fashion that he did.

2. The facts show that he kicked and punched a man illegally held in police custody, causing him serious lasting injury to his arm.

3. The sentencing Magistrate made a mistake in law in suspending the sentence of imprisonment awarded.

4. The lengthy delay in hearing the appeal, giving rise to a long period of uncertain suspense while a considerable part of the suspended sentence has passed, calls for some special reason to now incarcerate the man. (Particular circumstances amounting to special reasons illustrated).

5. The deciding factor in the courts discretion not to send the man to jail was the man’s voluntary move from Honiara to Auki. (Discussion on the benefits of such a move in the circumstances of this case).

Cases cited:

1. R -v- Radich (1954) NZLR86, at 87.
2. R -v- Todd (1982) 2 NSWLR 517

CROWN APPEAL ON INADEQUACY OF SENTENCE

Reasons for decision.

Brown J: This Crown appeal has been well argued and does raise very great difficulties as a result of the delay between the lodgment of the notice of appeal and the actual hearing. I proposed to deliver written reasons in due course for the factual situation and the arguments advanced deserve to be properly recorded. Nevertheless, I could not afford to delay this process any further I am without secretarial assistance and must deliver this decision ex tempore.

In my view the sentencing principles in this case must have proper regard to the “general deterrence” principle. The magistrate has been in error in taking all these mitigating factors into account to the virtual exclusion of that principle. This is a case of a police officer abusing his power to seriously injure a person, it seems, unlawfully in his custody and in the second charge, demanding money and assaulting a civilian female whilst so doing, fully aware of his position of power and authority as a policeman, at a time of civil unrest.

I recall standing at the wire at Henderson Airport, while the air contingent of RAMSI police landed. Some RSIP members were driving up and down the barrier while the very large crowd laughed and treated them with distain with comments, including one I well remember, shouted “Where will you be tomorrow”. That was the public perception of its police force. This man’s behaviour in these two instances reflects the public perception of the force as one above the law, and called for the paramountcy of the “general deterrence” principle when dealing with a very senior police officer who abuses his position of authority in the fashion that he did.

The facts are worthy of recounting again for in the rarified air of the court, robed as we are, acting in the air conditioned comfort of a court building removed from the happenings of this event, it is difficult to create the sense of fear and suffering of this victim Maxwell Polosovai, whilst he was punched and kicked by this officer.

He was seated at a desk and as an interview began the Defendant and others entered the room. The defendant began to abuse the victim and punched him on the face at the left jaw.

He then kicked the victim in the upper ribs. The victim stood up and ran towards a wall; a bottle was thrown at the victim by someone else not the defendant. A chair was thrown at him. Or swung at him. He fell to the floor and the defendant continued to punch him and to kick him while he was on the floor. Including a kick which landed on the victim’s forearm.

The victim was helped by other officers who washed blood off his face and gave him new clothes.

About 3 days later after complaining of pain in his arm he was transferred for medical examination. He had sustained a fracture to the ulna. The arm was fixed in a plaster cast. He had been charged but it is unclear what the charge was. The charges were subsequently withdrawn as there was no evidence.

As late as January 2004 a medical examination revealed the bone had still not knitted.

This was evidence on trial before this man changed his plea. This is the type of man the magistrate was faced with, one who was willing to use his power and authority contrary to his oath, yet he was given a suspended sentence in circumstances where actual body harm was occasioned. This was not isolated. He went out into the community and abused this civilian married woman, some six months later.

On the second charge the defendant admitted firstly approaching the victim to seek money because she had mentioned his name in public and the victim had told his wife he had been having an affair.

The victim asked him to return to her house later the same day. He did not return.

The next day the Defendant came to the victim’s shop. She got into an argument concerning the payment of compensation.

The defendant threatened to have her deported ‘back to India’. As she turned away the defendant slapped her on the face. The victim’s husband arrived on the scene and after a conversation handed him $50.

He pleaded guilty yet no sentence was passed.

To this charge of common assault he pleaded (which seemed to ignore the demand money with menaces aspect).

Yet the combination of these two convictions resulted in a suspended sentence. Much material by ways of mitigation was led. There was “character evidence” of a type which can have little effect where a police officer has been shown to have abused his authority in this fashion.

But on close reflection of two, the mistake of referring to them as character references can be shown. When I read the Commissioner of Police’s reference dated 10^th January 2004 I see that the Commissioner says that this person is a man who drinks too much and cannot cope with his stress. His promotion to the rank of Inspector had not followed normal procedure. The Commissioner did not condone the acts complained of.

In the case of the Honorary Consul Dr. Trevor Garland, the consul had occasion to meet him some 12 years ago whilst he was in Sydney and found him to have a mild and respectful disposition. This is clearly at odds within more recent behaviour of violent disrespectful conduct whilst a police officer. I wonder whether Dr. Garland was apprised of the facts of the conviction before he advanced his reference.

So despite Mrs. Andersons cogent argument supporting the Magistrate approach based on the weight and impressive nature of these character references and the balancing act that is the role of the sentencing court, I am satisfied, that Court had made a mistake in law in discounting the seriousness of these two crimes committed by a member of the very authority charged with the protection of the community; which the public at the airport fence had lost faith in and under which it had begun to suffer as cogently shown by these charges.

The New Zealand Court of Appeal’s judgment is quoted with approval in Australia and I believe illustrates the point that I seek to make about this “general deterrence” principle.

"We should say at once that this last argument omits one of the main purposes of punishment, which is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilized countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences".

In R -v- Radich (1954) NZLR 86, at 87.

The various cases which have referred to it and followed it are set out on 915 of Ross on Crime – Law Book Co. 2002.

This sentence of imprisonment should not have been suspended. Where lesser mortals are sent to jail, a person who carries out 2 offences of this type, a person in authority and power clothed as a Police Inspector should suffer the opprobrium of the public disgust.

But despite that, the appeal has been pending since the 4^th August 2004.

Whilst not quite on point CJ Street’s comments in R -v- Todd (1982) 2 NSWLR 517 at 519-520 echo Ms Anderson’s argument on the issue of delay.

"... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence: at times that can require what might otherwise be a quite degree of leniency being extended to the prisoner."

Where a considerable part of the suspended sentence has passed while awaiting the appeal hearing, English Court of Appeal cases illustrate the need to find some special reason to now incarcerate this man. I agree that this long period of uncertain suspense over the outcome of this appeal must be taken into account in my deliberation.

Had he remained in Honiara in the face of his disgrace it could be argued that no contrition was apparent and he should go to jail. But there appears to be some contrition; there has been reconciliation with the victim whose arm is useless for life and he has paid the compensation ordered without delay.

The factor which moves me to allow the suspension of sentence to stand is his removal to Auki.

If I could I would direct that he remain in Auki for a period of years for I am of the view that these dishonourable police officers should not be allowed to mix about Honiara which affords them influence yet, by virtue of their previous status and rank. Time and distance is needed to rid the force of any such destabilizing influence.

I would suggest he remain away from Honiara for a period of at least 5 years. He should be of greater use and influence in his own civil community if he were to use his experience, education and knowledge for the betterment of his family and that community.

The appeal is dismissed.

BY THE COURT

Appendix

Appeal against sentence

1. On 19^th of July 2004 the Respondent was sentenced by the Central Magistrates Court in relation to an offence of Assault Occasioning Actual Bodily Harm (count 1) and an offence of Common Assault (count 2)

Addendum – Facts on Conviction and Grounds of Appeal

2. In relation to the charge of Assault Occasioning Actual Bodily Harm the Respondent was sentenced to 12 months imprisonment wholly suspended for a period of 2 years. In addition the Respondent was ordered to pay $250.00 compensation to the complainant. In relation to the chare of Common Assault the complainant was convicted but not further punished. However, the Respondent was ordered to pay $50.00 compensation to the complainant.

Grounds of Appeal

3. The Appellant complains that the sentence imposed upon the Respondent is manifestly inadequate. The grounds outlined by the Appellant are as follows:

a) The sentence of 12 months imprisonment wholly suspended in relation to the chare of Assault Occasioning Actual Bodily Harm is manifestly inadequate.

b) The learned sentencing magistrate erred in not ordering that the sentence in relation to the chare of Assault Occasioning Bodily Harm be served by way of an actual, immediate term of imprisonment.

c) The learned sentencing magistrate erred in not making any sentencing order in relation the charge of Common Assault.

d) The learned sentencing magistrate erred in giving too much weight to matters put in mitigation.

e) The learned sentencing magistrate, in relation to Charge 1, erred in giving insufficient weight to:

(i) the effect on the victim and

(ii) the nature of the offending

f) The learned sentencing magistrate erred in not taking into account or insufficiently taking into account the principle of general deterrence.

3. Personnel deterrence factor

Given the substantial mitigation presented to the court, the specific circumstances surrounding the offence and the fact that the respondent has no previous criminal history and is otherwise a person of very good character it cannot be said that the Respondent posed any real risk of re-offending. It also can be said that personal deterrence has been achieved.

4. Issue of Delay in hearing appeal

It is submitted that the imposition of an immediate term of imprisonment at this time would be harsh and oppressive given the following matters:

a. The time that has passed since the imposition of the original sentence has allowed a significant portion of the operational period to be completed.

b. The Respondent has a reasonable expectation as to some certainty in the resolution of this matter. He has existed within the confines of the original penalty and ordered his life accordingly. To vary that penalty now would be unfair to the Respondent and his family.

c. There has been no further allegation of criminal misconduct during the operational period of the suspended sentence. There is nothing in the actions of the respondent that would have precipitated a further consideration of the original penalty imposed and he has responded well to the original sentence imposed.

d. The delay in the hearing of the appeal was in no way attributable to the Respondent.

BY THE COURT