Qoloni v Regina [2005] SBHC 73; HCSI-CRC 076 of 2005 (21 June 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case Number 76 of 2005

JONATHAN QOLONI

-v-

REGINA

Date of Hearing: 17th June 2005
Date of Judgement: 21st June 2005

M. Swift for the Appellant
S. Balea for the Respondent

Palmer CJ.: The Appellant was convicted on a charge of going armed in public on 27th January 2005 after a guilty plea and sent to prison for 12 months. He appeals against sentence on the following grounds:

(i) that the sentence imposed was manifestly excessive in all the circumstances of the case; and

(ii) that the learned Magistrate erred in failing to give sufficient weight to the Petitioner’s mitigating circumstances, in particular the entry of a guilty plea and the absence of any previous convictions.

The brief facts of the case

It was alleged on the 26th August 2004, that the accused went to the place where Enock Polo and Ben Tana were cooking copra and confronted them. He had a bush knife in his hand and threatened to chop off the neck of Enock Polo. When they ran away he chased them.

The learned Magistrate gave credit for a guilty plea and no previous convictions. His Worship also took into account the circumstances of the case and the public interest and imposed sentence of 12 months imprisonment.

In her submissions, Ms. Swift pointed out that the Appellant was unrepresented in the lower court on arraignment and so was not able to provide detailed mitigation to assist the learned Magistrate in the appropriate sentence that ought to have been imposed. She pointed out that the incident arose at a time when the Appellant was actually working brushing at his coconut plantation with his bush knife when he saw the victim stealing his copra. The offence arose when he went to chase them away from his plantation.

Effect of a guilty plea.

In such a case as this, when deciding to impose a custodial sentence, the first task of a Magistrate would have been to ask oneself, if there had been a plea of not guilty, and the accused had been convicted, what would have been the appropriate sentence - see Regina v. Boyd¹. It is important to bear in mind that a plea of not guilty would not necessarily incur a penalty more severe than would otherwise have been imposed. Where a guilty plea however has been entered it is ordinarily a matter to be taken into account in mitigation. In Siganto v. The Queen² Gleeson CJ, Gummow, Hayne and Callinan JJ said at 663-664; 99; 189; that mitigation is

"... usually evidence of some remorse on the part of the offender, and secondly, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also something relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence."

A plea of guilty carries its own weight. In R .v Hall³, Crockett and Southwell JJ said at 470:

"A court may (although such a case would be rare) elect to give no weight to such a plea. For instance a plea which is no evidence of remorse, is entered at the ‘eleventh hour’ and is made in a case of overwhelming strength may attract no reduction in sentence. But it will not fail to do so because it is cancelled or outweighed by other considerations of an aggravating nature. A plea of guilty is a mitigating factor. It cannot cease to be so because there are aggravating features. A court’s attitude towards the fact of a plea of guilty is expected to act as an encouragement to enter such a plea. The issue with which the court is concerned is what weight should be given to it in the circumstances. It is not a question as to whether the weight it has is to be cancelled out by other factors."

In R. v. Thompson⁴ Spigelman CJ, with whom the other judges agreed, said at 419; 138:

"(i) A sentencing judge should explicitly state that a guilty plea has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to the authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases, a plea will not lead to any discount."

A sentence of 12 months would have meant that the starting point in this case was in the range of 16-18 months. In my respectful view that would have been too long. When the circumstances of this offence are taken into account, bearing in mind that this offence is classed as a misdemeanour, with a maximum penalty of two years, that there was initially a trespass by the victim (now alleged in his mitigation before this court and not objected to by Prosecution - this was not disclosed in the lower court), that the Appellant had confronted the victim with the view to chasing them from his plantation, and that he had the bush knife in his hand as he was brushing his coconut plantation at that time, that he was a first offender with no previous convictions, a more appropriate starting point where a not guilty plea had been entered would have been much less, within the range of 12-14 months. There were no other aggravating features present in this case apart from the use of the knife and the threat issued. I note the learned Magistrate did not have the full benefit of those mitigating factors or details which would have enabled him to reach an appropriate sentence in this case; the Appellant being un-represented in his first appearance in court.

The Appellant pleaded guilty at the first instance which is consistent with remorse or contrition being shown. In his mitigation the Appellant did express remorse for what he had done. I accept as well that whilst witnesses were available if a not guilty plea had been taken, his plea had saved the court time and money and witnesses from having to go into the witness box and be cross-examined. I accept submission of learned Counsel that insufficient discount has been given for the guilty plea and other mitigating circumstances mentioned.

I accept also submission that the sentence was manifestly excessive to that extent. A more appropriate range in the circumstances would have been around 6 - 9 months. The unlawful use of the bush knife in the circumstances of this case warranted the imposition of an immediate custodial sentence which was long enough to mark the gravity of the offence. The sentence of 12 months imposed however in my respectful view was too long and that a sentence of 8 months would have been long enough.

The order of the learned Magistrate dated 27th January 2005 imposing sentence of 12 months is hereby quashed and substituted with a sentence of 8 months. The period spent in custody ought also to have been taken into account. I note that in her submissions raised before me, Ms. Swift pointed out that the wife of the Appellant was due to deliver their child on 26th June 2005 but that there were indications that complications may arise which may require emergency operation and that the presence of the Appellant and or other close relatives was recommended by medical authorities. A letter written to that effect submitted for my consideration dated 12th June 2005 was filed in court by consent. But for that letter coupled with the fact that a substantial part of the sentence in any event had been served, and invoking the discretion of the court to temper this sentence with mercy, I accordingly order that the Appellant be released at the rising of the court.

Order of the Court:

Quash sentence of 12 months imposed by the Magistrates Court, Gizo on 27th January 2005.

Substitute sentence of 8 months.

Period spent in custody to be taken into account.

Having been satisfied that a substantial part of the sentence had been served and invoking the discretion of the court to temper the sentence with mercy in view of the peculiar circumstances of his case, order that the Appellant be released at the rising of the Court.

THE COURT.

END NOTES:

1. (1980) 2 Cr. App. R. (S.) 234 per Cumming-Bruce L.J., Stocker and Smith JJ.
2. [1998] HCA 74; (1998) 194 CLR 656; 159 ALR 94; 105 A Crim R 184
3. (1994) 76 A Crim R 454 (Vic CCA)
4. [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 A Crim R 104 (CCA - a full bench).