Regina v Timo [2005] SBHC 51; HCSI-CRC 465 of 2004 (23 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 465 of 2004

REGINA

-v-

ROLAND TIMO

Honiara: Brown PJ

Date of Hearing: 15^th February 2005
Date of Judgment: 23rd March 2005

DPP for the Crown
Anderson for the appellant

APPEAL AGAINST SENTENCE

Reasons for decision

This appellant was convicted following trial, of two offences, demanding money with menaces (contra s.295 of the Penal Code) and attempting to interfere with a witness (contra s.121 of the Code). He was sentenced on the 7^th October 2004 in respect of the 1^st count, to 18 months imprisonment and in respect of the 2^nd, to 2 months, both sentences to be served cumulatively so that the total sentence was 20 months. The appellant says that in all the circumstances, the total sentence was manifestly excessive.

Before I deal with the grounds of appeal and I shortly reproduce the magistrate’s findings on the facts which led to these convictions:

A collision occurred between a vehicle driver by Mr. Timo and one owned by Mr. Konare. I accept that most likely the accident happened on 4/9/01.

The prosecution evidence is that the complainant and his wife then visited the defendant the day after the accident. The prosecution say that the defendant then made threats that unless was $5000 was paid then would arrange for the bus to be burnt out. The evidence of the complainant is that when this conversation took place Mr. Timo was cross.

Mrs. Konare says that the defendant said words to the effect that it’s good you come now Rasta will not burn your bus. The defendant denies this meeting.

The defendant says that there was only 1 meeting in his office when $3000 was handed over.

I do prefer the Prosecution evidence. I accept that a meeting took place the day after the accident. At that meeting were the defendant and Mr. & Mrs. Konare. I accept the contention by the Prosecution that a very good indication of the fact that a meeting took place is that at the 3^rd meeting (the 2^nd in Mr. Timo’s office) the complainant had $3000, why would he have had that money if no figures had already been mentioned. The evidence from both Prosecution and Defence is clear. No figure was mentioned of the 2^nd (Town Ground) meeting. It could only have been mentioned at on earlier meeting, one the defendant says did not occur.

I am satisfied beyond reasonable doubt that a meeting did occur between the defendant and Mr. & Mrs. Konare the day after the accident and that at that meeting the defendant demanded 5K backed up by threat. I therefore convict the defendant of demanding money with menaces on the day after the accident.

There is a great difference between a custom settlement and paying someone back on condition he withdraws his complaint. There is clear uncontroversial evidence that this was what the defendant intended. He intended to pay the complainant on condition that the complainant withdraws charges. He says he never intended to pervert course of justice merely to effect a custom settlement.

He clearly accepts that he paid Newton Konare the sum of $1500 only on condition the charge were withdrawn.

He must be bound by the natural consequences of his action. The natural result was he was trying to “bribe” the complainant by repaying him. He was absolutely clear on this but tried to hide it under guise of custom.

Defence argument on appeal

Ms Anderson’s argument goes to the appellant’s assertion that insufficient weight was given the matters in mitigation raised before the Magistrate. The aggravating factor mentioned in the Magistrates reasons; the senior position of the appellant in the Malaita Eagle Force; Ms. Anderson says plays no part in the sentencing process and she points to that issue as an error on the Magistrates part.

She further says, having due regard to comparative sentencing principles that the magistrate erred, for his sentence of 18 months has not been shown to accord with other cases. Those were:

• R v Alfred Fa’Aramoa, Magistrates Court 12 July 2004, Magistrate Hamilton-White
• R v John Limei, Central Magistrates Court, 25 May 2004, Magistrate Hamilton-White
• R v Donsdale Lomo and Nicholas Na’Agi, Central Magistrates Court, 14 July 2004, Magistrate Upwe.
  

The appellant also argued that, having regard to the Magistrates comments, it could be said that he had misdirected himself by the apparent emphasis on matters of which were in Ms. Anderson’s contention, irrelevant in the circumstances and gave insufficient weight to those matters in mitigation. Lastly, the appellant says the issue of delay in bringing these proceedings also was relevant yet the Magistrate failed to have any or sufficient regard to that, consequently that failure was, too, an error in law. The argument about delay is relevant only to the charge of demanding money with menaces. The offence occurred on the 4^th September 2001, and the complainant made complaint to police on 20 November 2003. The appellant was subsequently charged with the commission of the offence in March 2004, went to trial on the 30^th September and was sentenced on the 7^th October 2004. Delay (in the sense argued by Ms. Anderson) is a mitigating factor.

The Crown’s arguments

1. That the sentence was manifestly excessive

Mr. Cauchi, the Director of Public Prosecution made two points with which I agree:

a) the sentence must be excessive in the circumstances of this case (for all cases differ) and;

b) comparative sentences are but a very imprecise guide, for that the circumstances of each case fall to be determined on their own facts and should reflect the views of the community, not only previous judges sentence awards.

In support he quoted from these particular cases:

In Joel Likilua & Allen Kokolobu v R [1988 – 89] SILR 148 where Ward CJ commented at page 149:

‘Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide’

In Sau v R [1982] SILR 65 Daly CJ commented at page 69:

‘I must add one further observation on the sentencing process and on appeals against sentence. There is an increasing practice of reference being made to specific previous cases in court. This was done by the learned magistrate in this case and the dissimilarities give counsel a ready – made ground for argument which they understandably take. Sentencing is not an exact mathematical process; if it were it could be done by a computer. The human element both in the person before the court and the sentencer remains a vital part of the process. Previous sentences demonstrate principles or parameters of sentence; but they should not be used as binding precedents to reach a sentence in a particular case. All the judiciary have access to each others sentences and we must rely upon the good sense and experience of the judiciary to reach sentences which reflect not only their own views but also the views of the community’.

In R v Ben Tugale, Brown Beu, Nelson Oma, James Sala, Loius Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997) Lungole – Awich J commented at page 21:

‘[P]unishment in one case usually cannot be matched exactly with punishment in another. Circumstances usually differ even if only in details. Public view about how serious an offence is regarded also changes. Prevalence or otherwise of an offence during particular period also counts.’

There was an argument by Ms. Anderson that in view of the absence by the sentencing Magistrate, of any reference to “those comparatives” in his sentencing remarks, the Magistrate had “failed properly to consider the appropriate sentencing range when sentencing the appellant.

That is a presumption which this court should be wary of accepting for the sentencing of this offender followed shortly upon addresses of counsel, including Ms. Anderson who would have referred the Magistrate to what she saw, as appropriate guide lines with supporting authorities. It is not for a sentencing Magistrate to seek to justify a disparity from whatever cases had been cited in support of an appropriate sentence rather he must attempt to reach an award, or sentence on the facts and material before him and cannot be coerced into a narrow channel by particular previous sentences for they are not precedents in the strict legal sense and should not be put forward to this court as such, when I read her submission. To argue that other cited cases are more serious or less serious than this and impliedly inhibit the sentencing court in its discretion, presumes a particular understanding in the sentencing court of the circumstances peculiar to and community perceptions at that earlier time of the case cited. That is not an argument which finds favour, for the phraseology “manifestly excessive” can only relate to the particular offence before the sentencing court. It is for the appellant to show in this particular case that it is so.

“...the sole criterion relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence”.

Baumer –v- The Queen (1988) 166 CLR 51, 58 HC of A.

To hedge a sentencing courts’ discretion by reference to and insistence on an attachment to, as it were, previous sentences is plainly wrong.

Reference of the maximum sentence as a guideline

Mr. Cauchi points to the maximum sentence of 5 years available under the Code for demanding money with menaces. The sentence in this case was one of 18 months. At one stage in Ms. Anderson’s argument, I had to remind myself that this sentence followed a trial and was not one given after a plea of guilty. I am not satisfied on the facts having regard to the matters allowed by the Magistrate in mitigation, that the appellant has shown in any way, that the sentence could be said to be manifestly excessive.

It follows that I am not satisfied that Magistrate took into account irrelevant matters in the sentencing process, matters which effectively skewered that process to the extent that matters in mitigation were not afforded their due weight.

The “irrelevant” matters were pointed to by Ms. Anderson in the Magistrates comments;

“He would have known of the incidents which were, ironically in this case, known as panel beatings. People were being physically beaten by MEF members. Vehicles had been burn by MEF. Others had been removed from owners by means of threats”.

“....the operating capabilities of the RSIP were severely hampered by both senior and junior officers who were members of or associated with the MEF. They made it difficult for loyal officers (and there were many of those) to carry out their duties. They did so by means of threat or inactively all motivated by self interest”.

For Ms. Anderson to suggest that the Magistrate erred in taking these factors into account (for it was never part of the Crown case that the appellant had direct connection with the RSIP) overlooks the Magistrates obligation to place this offence in the context of the community situation and more particularly Honiara life at the time. A sentencing court should not excise from its mind the very factors which give rise to the need for the general deterrence principle. It is tantamount to saying “Nero played the fiddle while Rome burned” and ignoring the significance of the fire, in the circumstance of Nero’s position as Emperor.

Delay

So far as delay is concerned, Mr. Cauchi says:

“The complainant in this case waited until after the RAMSI had arrived in July 2003. The only delay of significance is 4 months until the report of the offence in November 2003. I dare say this matter was not a high priority for RAMSI personnel between July and November of 2003. It is clear because of other investigations into this appellant why there was a period of time between report and charging. Presently he is committed and remanded in custody to await his trial on other charges”.

Clearly the DPP presupposes the very public perception of the breakdown in the usefulness or loyalty of the RSIP and consequently the pointlessness of complaint, as evidenced by the sentencing Magistrates remarks:

“Whilst I have said law and order had not been broken down completely there is ample evidence and I know this to be so from my own experiences, that the operating capabilities of RSIP were severely hampered by both senior and junior officers who were members of or associated with the MEF. They made it difficult for loyal officers (and there were many) to carry out their duties. I therefore find it hard to accept an argument that I should take delay into account. Can that person who contributed to the delay now seek to rely on it to mitigate sentence? I do not think this is equitable.

Ms. Anderson’s argument has no merit in the circumstances appertaining in Honiara over this period. It is disingenuous to criticize the Magistrates comments as affording contradictory statements of the law and order situation about Honiara, yet to suggest that the Magistrate erred in his sentencing discretion by not referring to delay as a mitigating factor. The Magistrate had clearly faced the issue and found it inappropriate for the reasons that he gave, reasons that are set out above.

This matter is clearly one where the issue of general deterrence was in the forefront of the sentencing courts mind. I adopt the reasoning of the NZ Court of Appeal as illustrating this principle clearly:

“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 sever 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. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment.

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

For these reasons the appeal should be dismissed.

Order: Appeal dismissed

BY THE COURT