Zale v Regina [2005] SBHC 54; HCSI-CRC 495 of 2004 (30 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 495 of 2004

JACOB HUDSON ZALE

-v-

REGINA

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)

Hearing: 21^st March 2005
Judgment: 30^th March 2005

S. Lawrence for the Appellant
J. Cauchi, DPP for the Respondent

JUDGMENT

Mwanesalua, J: The Appellant was convicted on his own plea of guilty by the Central Magistrates Court on 1^st October 2004 for three counts of defilement contrary to section 143(1)(a) of the Penal Code. He was sentenced to nine months imprisonment on each count to be served consecutively.

He appealed to this court against sentence on the following grounds:

1. The Learned Magistrate erred in ordering the sentences of imprisonment to be served consecutively.

2. The Learned Magistrate erred in not considering totality in deciding whether the sentences of imprisonment should be served consecutively.

3. The Learned Magistrate erred in law in not taking into account as a mitigating factor that over two years had passed between the date of the offence and the date of sentence.

4. The Learned Magistrate failed to give adequate reasons.

5. The sentence was manifestly excessive.

FACTS: The victim was born on 3^rd July, 1989. She lived in a house with her parents at Magalau village in August, 2002. On the night of 23^rd August 2002, the victim was asleep in her bedroom. The Appellant entered her room and woke her up. He told her that he wanted to converse with her. He was then under the influence of liquor.

They left the bedroom and went into a kitchen house owned by another man. They conversed for a short while and then the Appellant told the victim that he wanted to have sex with her. The Appellant succeeded in having sex with the victim on a bed after several attempts to penetrate her vagina.

On the afternoon of 25^th August 2002, the Appellant met the victim at a spot in land some distance away from Magalau village. The Appellant had sex with the victim there. They then returned home after that sexual counter.

At about 8pm. On 27^th August 2002, the victim left her house for a choir practice in the church. The Appellant met the victim on the way and pulled her to the kitchen where he first had sex with her on 23^rd August, 2002. An unknown person flashed a touch light on them. They escaped from the kitchen to a spot some distance away under some trees. The Appellant had sex with the victim there for the third and last time in August, 2002.

The Appellant had sex with the victim when she was 13 years 1 month and 3 days old. She was seen by a doctor on 29^th August, 2002. The vaginal examination revealed a fresh and reddened introitus with a ruptured hymen.

The Appellant’s Case.

The case for the Appellant is that the total consecutive sentence of 27 months’ imprisonment imposed on him by the Learned Magistrate was too high. He seeks to reduce the sentence on 5 grounds. First, that the three individual sentences should have been ordered to be served concurrently in accordance with the single transaction principle; second, that the consecutive sentence offended the totality principle and accordingly the three individual sentences should have all been made concurrent; third, that the delay of 25 months from the date of the offences and the date of sentence was not taken into account as a mitigating factor before passing sentence on him; fourth, that there had been an error of law in that inadequate reasons were given on the decision regarding the sentence imposed on him and fifth, that the sentence was manifestly excessive.

The Respondents’ Case.

The Respondent supports the consecutive sentences imposed upon the Appellant by making the following submissions. First, That the single transaction principle does not apply as each of the offences was committed on three different days; secondly, the totality principle does not apply as each individual sentence was appropriate for each of the three offences and that the total was not too high; third, the sentence imposed was proper as a measure of deterrence to others; fourth, that it was not established law in this jurisdiction that failure to give full reasons for decisions on sentence constitutes an error of law and fifth, the sentence imposed was not manifestly excessive. The Respondent however conceded that there was no mention of the delay in the court transcript when the Appellant was sentenced.

Where a person is convicted of more than one offence, the Court must consider whether the sentences should run concurrently or consecutively. Two principles arise in relation to the exercise of this discretion.

First, where the offences arise out of the same transaction, the sentences should normally be concurrent. The decision whether a series of offences constitutes a single transaction is a decision for the court depending on the facts of each case. The test for a single transaction is set out by Ward C.J. in Augustine Laui -v- D.P.P ^[1]

Secondly, where the offences do not arise out the same transaction it is at the discretion of the court whether the sentences should be consecutive or concurrent.

In this case, the Appellant committed three offences against the victim at three different days and locations. The court below treated these offences as not arising from a single transaction. The court therefore exercised its discretion to order the sentences to be served consecutively.

The Appellant was drunk when he first had sex with the victim. He had ruptured the victim’s hymen when he had sex with her. The court below had imposed a sentence of 9 months’ imprisonment on each offence. The total sentence to be served by the Appellant is 27 months. The court imposed this sentence as a deterrent to others from having sex with under aged girls. On these grounds, 9 months could not be an inappropriately high sentence in this case for any one count.

The Appellant disputed certain matters on the prosecution facts. The first is that he said that it was not true that he removed the victim’s clothes before he had sex with her.

He said that the victim removed her own clothes before they had sex on all three occasions.

He also disputed hat he went into the victim’s room on 23^rd August 2002 to wake her up. He said that the victim came out from the house by herself to meet him outside where he waited for her.

The court below made no reference to these conflicting stories, and did not indicate which version of events was accepted for the basis for sentence.

In the absence of any explanation, this court would proceed upon the Appellant’s version of these events.

The lower courts are required to give reasons when passing judgments and sentences. In Nick Pitamama-v-Regina,^[2] his Lordship Palmer CJ said:

“The requirement for reasons by lower courts when passing judgments and sentences is an essential feature of a Court of record. It assists the presiding magistrate as well as an appellate Court in the formulation of judgment and sentence. Whilst recognizing that much of the work which gets processed through the lower Courts does not necessarily entail complicated issues of law, a sentencing court is obliged to record reasons for arriving at a particular sentence especially where the sentence imposed is longer than a commensurate sentence.”

In this case, the Learned Magistrate gave adequate reasons for sentence. He stated that the Appellant was drunk during the night he first had sex with the victim, that this type of offence continued to be on the rise in the country, that it is a serious offence, that there was aggravating factor in that the Appellant repeated the offence and that the sentence was aimed at reflecting the element of deterrence.

The maximum sentence prescribed by law for defilement under section 143(1)(a) of the Penal Code is 5 years’ imprisonment. The Appellant has committed serious offences. But the Appellant had cooperated with the police during the investigation of his case. He pleaded guilty. He was of previous good character with no previous conviction, he has shown remorse for his conduct.

There was a long delay of more than two years between the date of the offences and the date when he was sentenced. That delay was not attributed to any fault of the Appellant. He fully cooperated with the police investigation.

Between the period he was charged on 5^th February 2003 and his sentence on 1^st October 2004, he had been married, settled down and raised a child. He had to wait for the disposal of his case for 19 months.

The best way to deal with the Appellant is to deal with him as he was today and not as he had been 19 months’ previously.

I consider that the total sentence of 27 months was excessive in view of the long delay in the disposal of the Appellants case in the court below. The total sentence should therefore be reduced to a lesser sentence of 3 months on each count to be served consecutively.

Orders of the Court:

1. Allowed appeal

2. Quash orders of the court and substitute sentences as follows:-

(i)Count 1 – 3 months

(ii)Count 2 – 3 months

(iii)Count 3 – 3 months

Sentences to be served consecutively.

F. Mwanesalua
Puisne Judge

ENDNOTES

[1] Augustin Laui -v- DPP (Unrep. Cr. App Case No. 11 1987) Ward CJ at page 2.
[2] (Unrep. HCSI-CRC 005) Palmer CJ at page 3