Regina v Randy [2005] SBHC 57; HCSI-CRC 001 of 2005 (13 April 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 00105

REGINA

-V-

JOHN LEVETI RANDY

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 11^th April 2005
Date of Sentence: 13^th April 2005

M. McColm for the State
Ms. L. Kershaw for the Defendant

Palmer CJ: The accused John Leveti Randy (“the Accused”) was charged in the Magistrates Court on two charges of arson and one charge of being a member of an unlawful society. The particulars of the charges for arson pertained to the burning down of the dwelling houses of Henry Langura and Leslie Sukadi between 16^th – 18^th June 2003 at Marasa Village, Guadalcanal Province. The third charge related to his involvement with the Guadalcanal Liberation Front (“GLF”) as a member.

The Accused pleaded not guilty to the charges on the grounds of compulsion; that he had been ordered and threatened to be shot if he did not comply. The matter went to trial and the presiding magistrate rejected the defence of duress and convicted the Accused of all three charges. The learned magistrate however decided to commit the Accused to the High Court for sentence.

Section 208(1) of the Criminal Procedure Code (“CPC”) provides that:

“Where any person, not being less than eighteen years of age, is tried by a Magistrate’s Court for an offence which is punishable either by that court or by the High Court and such person is convicted by the Magistrate’s Court of that offence, then, if on obtaining information as to the character and antecedents of such person the Magistrate’s Court is of the opinion that they are such that greater punishment should be inflicted in respect of the offence than such court has power to inflict, the Magistrate’s Court may, in lieu of dealing with such person in any manner in which it has power to deal with him, commit him in custody to the High Court for sentence in accordance with the following provisions of this section.”

It is important to bear in mind that the powers of the Magistrate’s Court to commit sentence to the High Court is where having regard to the character and antecedents of the defendant the Magistrate’s Court is of the opinion that they are such that greater punishment should be inflicted than that court has power to inflict, only then should a matter be committed to the High Court, bearing in mind that a Principal Magistrate has power to inflict punishment in each offence to a maximum of five years^[1] and 10 years^[2] where there are more than two charges in consecutive.

I have read the facts to this case as contained in the judgment and other relevant documents to acquaint myself with the circumstances of the offence.

Ms. Kershaw has provided a lengthy submission on mitigation for the Accused including details of family background, education and history. I take note of these. He has no previous convictions, which I give due credit for. I also take note of his future plans on completion of his sentence as well as what he has been doing whilst in prison.

There are suggestions that there are others who might be more culpable than the Accused in the commission of the offences. The evidence adduced however does not bear this out clearly. If anything this Accused was a willing participant throughout and played an active part in the operations resulting in the burning of those houses. He was seen according to the undisputed evidence of eye witnesses at the scene to carrying an SR88 rifle. It cannot be said therefore that he played a minimal role in the commission of the arson that day. The evidence as adduced did not bear this out.

It has been submitted that some mitigation should be given for his admission of the offences. The Accused however had entered a not guilty plea on the grounds of duress and the whole matter went to trial. The evidence at the end of the day simply did not support any such suggestions. I do not think such admission would have made much difference to his case. Had a guilty plea been entered at the outset then I would have definitely accepted that appropriate discount should be given; not in this case.

I note his personal and family circumstances, but which are not unusual; these like in many other cases, play an important role in his upbringing and actions. He has sought to rely on his religious activities, community ties and family responsibilities in his mitigation. Those commitments, convictions, family ties and responsibilities however had little influence or impact it seems when it really mattered, in preventing him from taking part in an illegal society whose activities were clearly unlawful and wrong. Those religious convictions and involvements, family ties and relationships should have been uppermost in his mind as a voice in his conscience telling him which way to go, what to do and what not to do. The true character of a person is revealed when trials, temptations, difficulties, hardships are confronted and overcome. The true value of all those religious activities, family and community ties and relationships are revealed when they are tested in the realities of life when he had an option to join up or to refuse and walk away. What happened to this Accused is not unique. There were many young and mature people who also could have joined up, but they deliberately chose to stay away. That same opportunity presented itself to this Accused; he could have declined any invitations and walked away from it all. Many other people refused to join. Many had to flee for their lives, some tragically paid for their lives through numerous killings done in execution style, many lost property and homes, many have been traumatised, especially young children and the elderly. This Accused declined to listen or pay heed to any of them and deliberately chose to take part in the operations of an unlawful society which had been involved not only in terrorising many innocent people but also in killings and other serious crimes. It has been a terrible time for many. The destructive actions of this Accused and others cannot be minimised. Those who participated knew what they were doing, that if caught they will have to answer for their actions.

I do not think it is correct to try and minimise their actions by saying that it occurred in abnormal times. Of-course it occurred at a time when law and order was at its lowest. But that should have provided opportunity for him to put into practice what he had learned in religious circles, as a teacher in Sunday School, what he had been taught by his parents, elders and others in his Community, and to stay away from trouble.

I note his remorse and that he is sorry for his actions. That is good, in fact he has no option but to change or to reform. That paves the way for rehabilitation for him in prison and eventually on his release. Refusing to acknowledge that what he has done is wrong is but a swift way to self-destruction.

I note some sort of reconciliation ceremony have been conducted within the community. That is also good and is noted. But again this is inevitable, for any community to survive and to rebuild there must be forgiveness, true forgiveness from the heart, for that is an essential ingredient to reconciliation. At least that opens the way forward for the Accused on his release to be able to be accepted back into the community as a changed reformed person.

I note the victims or occupants of those houses had vacated the buildings before they were burned down; some property had also been removed for safe keeping and to that extent, lives were not put to risk. At least that demonstrates some sense of responsibility and I take that into account in the sentencing process.

It has been submitted that a possible head sentence would be about 3 years. I do not agree. The circumstances in which the offences were committed are very different to other cases coming through the courts. Those offences were committed by a group of armed persons who were part of a very dangerous and bigger group under the leadership of a notorious and unstable person who ruled with an iron fist. They were committed at a time when law and order was non-existent and those who had power were those who had access to guns. They took advantage of the situation and terrorised many innocent villagers and people. A man’s hut whether it be made of thatched materials and timber or brick and mortar or steel represents his life, his existence. It is his castle and no man has any right to destroy it without his consent or by due process of law. What happened that day were totally without justification, callous and deliberate. A head sentence of seven years is not excessive.

That however must be balanced with prospects of rehabilitation of this Accused and all other relevant mitigating factors that have been put before me. I take all relevant mitigating factors into account and reduce sentence to one of five years for the arson counts. In view of the occurrence of the offences at the same time, they can be regarded as part of a single transaction and for the sentences to run concurrently. The maximum sentence for being a member of an unlawful society is three years. I note the involvement of the Accused with the GLF as a member/participant was for a short period of time. There is no evidence to suggest that he was an active member for any other period of time. Accordingly I impose sentence of two years. This is a separate offence and should be made to run consecutively, however bearing in mind the totality of the sentence and that any such sentence imposed should not be seen to have a crushing effect on the Accused, with opportunity to return and serve in the community, I order that it be made to run concurrently. The total sentence therefore is five years. The period spent in custody to be taken into account. The Accused has a right of appeal to the Court of Appeal if aggrieved by the sentence imposed.

The Court.

ENDNOTES:

1. section 27(1)(b)(i) of the Magistrates’ Courts
2. section 27(4) Magistrates’ Courts