Ahi v Regina [2005] SBHC 53; HCSI-CRAC 124 of 2005 (29 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal No. 124 of 2005.

JIMMY AHI

–v-

REGINA

HIGH COURT OF SOLOMON ISLANDS.
(KABUI, J.).

Date of Hearing: 23^rd March 2005
Date of Judgment: 29^th March 2005

Mrs. K.L. Anderson for the Appellant
S. Cooper for the Crown

JUDGMENT

Kabui, J. The appellant pleaded guilty to the offence of demanding with menaces, contrary to section 295 of the Penal Code Act (Cap. 26) (the Code) in the Central Magistrate Court in Honiara on 3^rd February 2005. The learned Magistrate therefore convicted him of that offence on his own plea of guilty. The learned Magistrate then sentenced him to two years six months imprisonment to be served in prison. He filed a notice of appeal under his hand on 14^th February 2005 and later his Solicitor filed the grounds of appeal on 17^th March 2005. He appealed against sentence on two grounds, namely-

1. The learned Magistrate imposed a sentence which was manifestly excessive in the circumstances;

2. The learned Magistrate erred when failing to consider delay as a mitigating factor.

Facts on the record.

On 11^th October 2001, the appellant with two others went to the premises occupied by Patrick Alasia in Bokonavera Heights and spoke to Rodney Alasia and Aloisio Sikwa’ae. The appellant had a high powered rifle which he pointed at Aloisio Sikwa’ae demanding Aloisio Sikwa’ae to tell Patrick Alasia to come and see him. Aloisio Sikwa’ae told the appellant that Rodney Alasia was Patrick Alasia’s son. The appellant then pointed his rifle at Rodney Alasia, pressing the barrel hard against Rodney Alasi’s chest. The appellant then cocked his rifle and ordered that no one should move or else he would shoot anyone who dared to move against his order. The appellant then ordered Rodney Alasia to go and bring his father Patrick Alasia. Rodney Alasia then called for his father who was then inside the house to come out. Patrick Alasia did come out and went to the appellant. The appellant then ordered Patrick Alasia to give him the key to his vehicle. Patrick Alasia went back into his house and brought the key and went to his vehicle. He told Patrick Alasia that he was a police officer and he had come to confiscate the vehicle. The appellant then ordered Patrick Alasia to open the driver’s door and then ordered Patrick Alasia to move out of the way. Patrick Alasia told the appellant that he had no right to take his vehicle without a court order. The appellant then got into the vehicle through the driver’s seat, reversed and drove off with the other two persons who had come with him. As they left, shots were fired near Patrick Alasia’s residence. The appellant was a prison officer at that time.

Is the sentence imposed excessive in the circumstances?

This ground of appeal supposes that the circumstances or the facts of the case are such that the appropriate sentence should have been less than 2 years and six months imprisonment. The circumstances or the facts of the case must also mean any mitigating circumstances or facts in the case which were before the learned Magistrate for consideration for insufficient consideration of mitigating factors is the basis of this appeal. Counsel for the appellant based her argument on three grounds, namely, the facts of the offence, the mitigating factors and the comparison of the sentence with other previous sentences imposed for the same offence by the courts. The facts of the offence are stated above. The mitigating factors are a guilty plea, good character, and long delay in prosecuting the appellant, expression of remorse and family circumstances. The learned Magistrate did take into account these factors on page 2 of her judgment. So the case for the appellant is really that the learned Magistrate had failed to place enough weight on these factors so as to make her impose a lesser sentence. According to D.A. Smith in his book, Principles of Sentencing, 2^nd Edition, reprinted in 1982 at 4, a mitigating factor is not considered a right of the offender (See Regina v. Kennedy Bela, Criminal Case No. 100 of 2002). That then is the status of any mitigating factor. For example, in R. v. Inwood (1975) 60 Cr. Appeal R. at 70, Scarman, L.J. did not accept the mitigating factors standing in favour of the appellant as against the interest of the community to show disapproval by the community of the appellant’s conduct. The mitigating factor not being a right of the offender is clearly consistent with section 24(2) of the Code which allows the courts the discretion to impose custodial sentences less than the maximum sentence prescribed by the section under which the offender is charged. Any term of imprisonment imposed in sentencing is a matter for the discretion of the court. One of the grounds for attacking the term of any sentence passed is to allege that the sentence is manifestly excessive. The phrase “manifestly excessive”, always used by appellants in their appeals against sentence has very little meaning unless it is used to point to the sentencing Magistrate proceeding on the wrong principle of sentencing or that there is a glaring disparity between the facts and the sentence. Prentice, J. in a dissenting judgment, made this point, in Regina v. Roger Vincent McGrath, [1971-72] PNGLR 247. His Honour cited Barton, A.C.J. of the High Court of Australia in Skinner v. The King (1913) 16 CLR 336 at 340 where Barton, A.C.J. said-

“...It follows that a Court of Criminal Appeal is not prone to interfere with the Judge’s exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overstated ,or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not...”.

So, for the sentence to be regarded as being manifestly excessive, it must be obvious on the record in that regard and not just be a matter of argument. Prentice, J. also referred to the principles as stated by the High Court of Australia in House v. The King (1936) 55 CLR 499 where the Court said at 504-505-

“...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course...”.

This statement clearly shows the danger of the temptation for any appellate court for that matter to act too easily on the argument that the trial judge or the Magistrate for that matter did not place enough weight on the mitigating factors before passing sentence. The Court then stated the circumstances in which the trial judge might have made errors. The Court continued-

“...It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so...”.

The above statement clearly extends beyond acting on the wrong principle in sentencing as referred to by His Honour, Prentice J. cited above as a ground for saying that a sentence is manifestly excessive. There are other grounds as well like in the Skinner’s case cited above provided there is some material to sustain them. If after a proper analysis of the facts, the court is of the view that injustice has occurred, then it is entitled to review the discretion being challenged and rule accordingly. Again, the Court continued-

“...It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable, or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...”.

Applying these principles to the facts of this appeal, clearly, I cannot substitute my discretion for that of the learned Magistrate on the ground that if I had been the learned Magistrate, I would have acted differently on the same facts. The mitigating factors put forward for reconsideration had in fact been taken into account by the learned Magistrate. I do not think I can improve on them from the facts of the case. This was clearly a case of robbery than simply demanding with menaces. It was like robbery on the highway where a vehicle is stopped and the key is demanded of the driver with the use of a rifle being pointed at him who having handed over the key to he robber is forced out of his vehicle and driven away by the robber. But the appellant was not charged with robbery but with demanding with menaces. The facts however do not change following negotiation to drop other charges against the appellant. If the tactic of the defence was to plead to a lesser charge in the hope of getting a lesser sentence, then that tactic did not work for the defence as expected. The learned Magistrate regarded as aggravating factors the use of a rifle to cause fear, the fact that the appellant pretended to be a police officer, the fact he was a serving prison officer and the benefit he derived from using the stolen vehicle. In this respect, the learned Magistrate concluded-

“...The court takes into account his guilty plea, delay, family circumstances, remorse and previous good character. But the community demands that those who terrorized innocent and law abiding members of the public and removed their property from them at gun point be severely punished...”.

That is, the interest of the community at large far outweighs the mitigating factors and the sentence reflects the abhorrence of the community in that respect. I think the learned Magistrate was entitled to hold that view on the facts of the case. The appellant however does not stop here. He takes one step further and says that the sentence imposed is inconsistent with the range of sentences passed for the same offence in the past years. In Paulus Mandatititip v. The State [1978] PNGLR 128, Prentice, C.J. and Pritchard, J. at 130 said-

“...It has been pointed out on numerous occasions that citation of other individual cases is of little assistance on appeal, each case being decided on its own merits...”.

The same has been echoed in this jurisdiction as pointed out by Brown, J. in Regina v. Timo, Criminal Case No. 465 of 2004 where His Lordship reviewed previous judicial statements on the same matter. This appeal may however differ if there is statistical evidence to suggest a range of sentences for the same offence over a period of time but even then in my view would not necessarily fetter the discretion of the court to pass an appropriate sentence on the facts of the case before it. In any case, Counsel does not provide any statistical evidence in this appeal to confirm any sentencing range for the offence of demanding with menaces, apart from citing four cases of demanding with menaces in which the court passed sentences reflecting the facts in each case. Counsel cited Daniel Fa’afunua v. Regina, Criminal Appeal No. 296 of 2004. In that case, the same learned Magistrate sentenced the prisoner to three years imprisonment for demanding with menaces. That sentence of three years imprisonment was confirmed on appeal by Palmer, C.J. of the High Court. Counsel argued that that sentence represented the top end of the range of sentences for the offence of demanding with menaces. The presence of a group of armed men accompanying the demand for payment of compensation in that case was the aggravating factor in addition to the prisoner being a member of Parliament and a member of the Cabinet. R. v. Alfred Fa’aramoa was a Magistrate Court case in which the same learned Magistrate imposed a sentence of two years imprisonment for demanding money with menaces. In that case, the prisoner who was a serving police officer fired two shots in the air and one into the ground on his last visit to the business premises but no compensation was paid. The prisoner had however received the sum of $4,000.00 and four red shell-moneys (tafuliae) on an earlier occasion when he threatened to burn down the business premises. In R. v. Donsdale Lomo and Nicholas Na’Agi, the learned Magistrate sentenced the prisoner to six months imprisonment for demanding with menaces. No direct threat had been used against the complainant in that case. In Regina v. Alick Sura & Others, Criminal Case No. 46 of 1993, the prisoner was sentenced by Palmer J. (as he then was) to pay a fine of $250.00 in default of which he was to serve 125 days in detention. The citation of these cases as showing a sentencing range or pattern on comparative basis can be misleading and thus the warning against the folly of relying on that argument on any appeal. The facts of each of the cases cited are different from the facts of this appeal. In the Fa’afunua case, a group of armed men was used to accompany the demand for payment of compensation. Likewise, the possession of firearm accompanied the demand for payment of compensation in the Fa’aramoa case. There was no use of firearm in the Lomo and Na’Agi case and the Sura case and I disregard them for that reason. The facts of this appeal are different in that the appellant actually pressed the barrel of his rifle against the chest of Rodney Alasia and cocked the weapon. The only thing left was to pull the trigger. The appellant used his weapon to command obedience to his unlawful orders until he drove away in the stolen vehicle. These are the facts which make this appeal different from the facts in the cases cited by Counsel. As far as Rodney Alasia was concerned, death to him was imminent. It does not matter whether the appellant’s weapon was loaded or not. A rifle is a lethal weapon and when it is pressed against one’s chest and cocked, death is assured unless the trigger is not activated. When that happens, it sends a chill through one’s spine. The law and the community will not sit back and allow a lenient sentence to be passed and send the wrong signal to the community at large. Again, the appellant goes further and says that the learned Magistrate should have given enough weight to the delay factor in this appeal. The fact is that the learned Magistrate did take into account this factor like other mitigating factors taken into account. The general break down of law and order since 1998 until the arrival of RAMSI in 2003 is the reason for a lot of offences committed not being reported to the Police. I take judicial notice of this fact. No time limit should run against criminals. I do not think RAMSI can be blamed for any delay because they have so much on their hands within a short space of time and the appellant’s case might not have been in the forefront of things. That is understandable. That should not be, in my view, an issue. Delay is of course a mitigating factor but is not a right of the appellant. In that regard, it can be disregarded completely by the court in the interest of the community. The learned Magistrate as indicated above did have regard for it but at the end of the day, the community at large must take the front seat for the sake of the community and maintenance of law and order in Solomon Islands. That was the learned Magistrate’s position on that issue of delay together with other mitigating factors. For the reasons stated above, this appeal will not stand. I dismiss this appeal accordingly. I so order.

F.O. Kabui
Puisne Judge