Maeke v Regina [2005] SBHC 47; HCSI-CRC 127 of 2005 (17 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number: 12705

SELWYN MAEKE

-V-

REGINA

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 17^th March 2005
Date of Judgment: 17^th March 2005

S. Lawrence for the Appellant
R.B. Talasasa for the Respondent

Palmer CJ: The Appellant was convicted in the Magistrates Court on one count of desertion contrary to section 33(4) of the Police Act, the particulars of which read that he being a police sergeant no. 583 of the Royal Solomon Islands Police Force had absented himself from duty without leave or reasonable cause for a period exceeding 28 days.

The facts disclosed he was absent from duty from 13^th July 2004 to sometime in November 2004 when he was accosted and dealt with.

A total of six grounds of appeal had been filed against his sentence. The Appellant says that:

(i) the learned Magistrate erred in treating the offence before the Court as a more serious example of this type of offence.

(ii) the learned Magistrate erred in not reducing the sentence from the maximum available on account of the objective nature of the offence.

(iii) the learned Magistrate erred in reducing the sentence from the maximum available only on account of the plea of guilty and prior good character.

(iv) the learned Magistrate erred in taking insufficient account of the mitigating factors advanced on behalf of the accused.

(v) the learned Magistrate erred in giving excessive weight to the need to deter other members of the Royal Solomon Islands Police Force from deserting.

(vi) the sentence was manifestly excessive.

The first three had been lumped together in his submissions by learned Counsel for the Appellant.

In his submission on these three appeal points, learned Counsel for the Appellant sought to point out differing situations under which various offences of desertion could occur and varying levels of seriousness which could have been attached to them. He sought to point out that the circumstances of this offence do not warrant a category of seriousness which the learned Magistrate had accorded it. He pointed out there could have been more or other serious cases. Under ground 4 he submitted that the learned Magistrate failed to take into sufficient account the mitigating factors advanced. Under ground 5 learned Counsel submits that too much weight was given to the element of deterrence and thereby resulting in a sentence that was weighted in excess of the normal range for such sentences.

On the other hand learned Counsel Mr. Talasasa for the Prosecution pointed out that this officer had been assigned specific tasks to perform but failed to do so; that he was a sworn officer and failed in adhering to his Oath of allegiance to her Majesty and the State. He also pointed out that the act of desertion was committed in 2004 at a time when the nation was undergoing rebuilding process. Learned Counsel pointed out that the presiding Magistrate was well within his range when imposing a sentence of 3 and a half months and that this court should not intervene.

Before an appellate court can interfere with a trial judge’s discretion in passing sentence it must be shown that the sentence imposed was manifestly excessive, or manifestly insufficient because, for instance a judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence ^[1]. In the circumstances of this case, it is for the Appellant to demonstrate that there had been an error in the sentencing discretion of the court below which would justify the intervention of this court.

In offences of this kind, there is provision for a fine of up to $200.00 or sentence of imprisonment of up to six months. The starting point in such situations would be to consider first whether a fine or a sentence of imprisonment would have better reflected the offence of desertion for which the Appellant had been charged with. In this case, the presiding Magistrate ruled out a fine as the appropriate form of penalty and decided a custodial sentence was appropriate. The next step he would have then have to consider is the appropriate term of imprisonment to be imposed.

It has been pointed out so many times that there is no mathematical or scientific method or formulae in arriving at the appropriate sentence. The court has to apply its mind inter alia to the mitigating factors, the circumstances of the offence, the personal circumstances of the defendant including whether he has any previous convictions or is a first offender, whether or not the offence is prevalent in the country and needed a harsher than normal sentence, any aggravating features present, whether a guilty plea had been entered and mitigating factors relied on.

In deciding to impose a custodial sentence, the first task of the learned Magistrate would have been to ask oneself, if there had been a plea of not guilty, and he had been convicted, what would have been the appropriate sentence – see Regina v. Boyd ^[2]. In the circumstances of this case, I do not think it could justifiably be anything more than 3 months, bearing in mind that the maximum is six months and that cases of a more serious nature should be reserved for anything above 3 months. To that extent, where a sentence of 14 weeks is imposed as the final sentence, after mitigating factors had been taken into account, the starting point would have around 21 weeks or 5 months. In my respectful view if that figure were to be calculated as the starting point for the offence of desertion in the circumstances of this case would have been rather on the heavy side.

The fact that the Appellant had been allowed to absent himself from duty for such a lengthy period of time cannot entirely be placed on his shoulders. Had he been charged much earlier, he would not have been allowed or had opportunity to simply flout authority in the way he had and continue to receive pay for doing nothing or very little. As much as his actions were inexcusable and unacceptable especially coming from a very senior or long serving officer (18 years in total) who should or ought to have demonstrated professionalism in his attitude and approach to work, it was equally incumbent upon his superiors to act timely and appropriately to curb or stop such sloven behaviour, especially when he was continuing to draw full salary for doing nothing or little.

If any deterrence message was intended to be conveyed to others it would be that such type of behaviour would attract an immediate custodial sentence, apart from any other disciplinary action including termination, which might be taken by the Commissioner of Police. In so far as any element of retribution might be contemplated in the sentence as well, bearing in mind that the Appellant will as a result of this conviction and his behaviour be terminated from the Public Service, a sentence of imprisonment is further punishment over and above that apart from the social stigma that will be attached to his name as a serving police officer that has been terminated for desertion.

I am satisfied the appeal should be allowed to that extent and the orders of the Magistrate quashed and substituted with a lesser sentence of 2 months.

Orders of the Court:

1. Allow appeal.

2. Quash orders of the Magistrates Court of 14 weeks and substitute sentence of 2 months.

The Court.

ENDNOTES

1. See Berekame v. DPP (1985/1986) SILR CA, applied the approach in Skinner v. The King (1913) 16 CLR 336 and also adopted in Saukoroa v. R. (1983) SILR 275.
2. (1980) 2 Cr. App. R. (S.) 234 per Cumming-Bruce L.J., Stocker and Smith JJ.