Kelesiwasi v The Queen [2005] SBHC 83; HCSI-CRC 326 of 2004 (15 July 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 326 of 2004

LAWRENCE KELESIWASI

-v-

THE QUEEN

Date of Hearing: 11^th and 13^th July, 2005.
Date of Sentence: 15^th July 2005.

S. Balea for the Crown.
K. Averre for the Accused.

SENTENCE

Kabui, J.: You pleaded guilty to all the charges brought against you by the DPP. I entered a guilty plea in respect of each charge and convicted you accordingly of each of the charges. It is now my duty to sentence you. The fact that you pleaded guilty is a factor to be taken into account in your favour. You co-operated with the police and showed remorse for your actions. You are of good character generally but this has to be weighed against the offences you had committed and for which you had been sentenced on 1^st October 2004 to serve five years imprisonment. You had a good work record as a police officer. You have previous convictions as shown by a copy of the relevant Magistrate Court decision in that regard but I think its weight must be assessed against the fact that the offences in respect of which you pleaded guilty would have been dealt with together with the offences for which you are now serving a sentence of five years had they not come to the High Court. In that regard, it could be argued that in reality, there are no previous convictions in the sense that you had re-offended this time. That is, you have not re-offended at all but due to the withdrawal of the previous offences of which you had been previously charged, convicted and sentenced, new charges had been substituted and you pleaded guilty to them at a later date. In fact, the offence of which you were charged in May, 2002 for which you had pleaded guilty, convicted and sentenced by the Magistrate Court was committed the same day and in the same year as the one of which you had been charged, pleaded guilty and convicted by this Court. It is unlikely that you will re-offend as you are no longer a police officer and the motive for your behaviour though personal was rather a reflection of the state of the Royal Solomon Islands Police Force at that time in 2002. So, I have taken into account the matters your Counsel, Mr. Averre, had urged upon me to consider and to act accordingly.

The circumstances of your case.

The penalty for the offence of intimidation is imprisonment for three years. This is the maximum penalty. You were a senior police officer at the time you committed the offence. Sergeant Laukasa, the victim of your intimidation was of your rank also. You uttered certain words to him and swung the butt of your rifle so that it struck the rear of the victim’s head. You pointed your rifle to his head, cocked it and placed your finger on the trigger. That was an act of great threat to the victim’s life. The maximum penalty for this offence is imprisonment for one year. You showed no regard for Saomae and you caused injury to his upper left cheek which caused bleeding, swelling and bruising. Two stitches had to be applied to the injury to close it. Mr. Saomae was a retired police officer and was your colleague at work I take it. The maximum penalty for assault causing actual bodily harm is imprisonment for five years. Both Sergeant Lausaka and Saomae had not directly provoked you in any way. Your attacks had been unprovoked. God knows what else you would have done if you had not been forcibly removed by other colleagues of yours. You must now have been grateful for what they did to save you from possible disaster that you would have created for yourself. The maximum penalty for discharging firearm within the town boundaries is a fine of two hundred dollars or to imprisonment for six months or both. Your Counsel, Mr. Averre, said that you had acted the way you did because you had been frustrated by the biased way in which the members of the Star Division had been selected of which you were a member and that you did not like your selection to be tarnished in that way. That may have been the case in your case but still your actions did not bear that description. There must have been another reason, perhaps an underlying one because there is no evidence to suggest that you had been drinking before you did what you did. Your Counsel, Mr. Averre, did point out that by 2002 the reputation of the Royal Solomon Islands Police Force had enormous problems in terms of criminal offences and difficult working conditions which might have resulted in your misguided attempt to resolve a personal problem within the Force. These present charges have been hanging over your head for three years and two months. The delay has been not your fault.

Sentences passed by the Court.

I sentence you for 18 months imprisonment for the offence of intimidation. For common assault, I sentence you for 6 months imprisonment. For discharging firearm within the town boundaries, I sentence you to 3 months imprisonment. For assault causing actual bodily harm, I sentence you to 2 years imprisonment. All these sentences are to run concurrently which means you will serve a total sentence of 2 years imprisonment effective from the date you went into detention. Your Counsel, Mr. Averre, however urged me to consider the totality principle in sentencing and to apply it to your case. I have done that by making all the sentences I have imposed on you concurrent. The next question now is to see whether this concurrent sentence should be made consecutive to or concurrent with the sentence of five years you are now serving in the Rove Prison. Your Counsel again urged me to make it concurrent with the five years sentence that you are currently serving for the same reason being applying the same totality principle. I have looked at the law on this point and Iam satisfied I can do that if Iam minded to do so in the circumstances of your case. Iam persuaded in that direction on the basis that you should have been charged in the Magistrate Court and pleaded guilty there and sentenced together with the other offences for which you are now serving a sentence of five years. Unfortunately, you pleaded guilty in this Court for offences that you committed in 2002, being offences committed with the offences for which you are now serving a sentence of five years, all of them during a period of three years, commencing in 2001 and ending in 2003. Looking at them in totality, all those offences belong to the same group of offences committed during that same period of time and the punishment for them should have been treated on that basis of their group sameness. I have therefore decided to order that your concurrent sentence imposed by this Court should be concurrent with the five years sentence you are now serving in Rove Prison. I order accordingly. The effect of this order is that the five years sentence imposed on you by the Magistrate Court in 2004 remains the effective sentence.

Remarks by the Court.

The accused was originally charged with attempted murder, contrary to section 215 of the Penal Code Act, (Cap. 26), (the Code) and grievous harm, contrary to section 226 of the Code. Before the accused was arraigned on these charges, Mr. Balea for the Crown filed new charges, replacing the charges for attempted murder and grievous harm. The new charges are four in number, being intimidation, contrary to section 231, common assault, contrary to section 244 and assault causing actual bodily harm, contrary to section 245 of the Code. The fourth charge is discharging firearm within town boundaries, contrary to section 44 of the Firearms and Ammunition Act, (Cap. 79). The amendment by replacement came at the eleventh hour and the DPP obviously did not consider the application of section 159(2) of the Criminal Procedure Code Act (the CPC) which I discussed in David Filia v. Regina, Criminal Case No. 311 of 2003. The new charges as a matter of fact had not been formally filed in the High Court Registry. They were put forward suddenly and I was caught by the wrong foot in that regard, though Mr. Averre for the defence did say something about my consent being necessary. The matter is procedural in nature and does not affect the validity of the new charges, the guilty pleas entered in respect of each of them, the conviction entered and the sentences passed on each of the charges. However, though procedural it is, it is statutory in nature. This is the concern. I do not think anyone is entitled to rewrite section 159(2) of the CPC without the Parliament doing it under section 59 of the Constitution. As much as section 159(2) of the CPC may be at variance with the practice elsewhere, it is the law here and must be followed. It is not in dispute that the DPP does have the power to institute criminal proceedings and to discontinue them under section 91(4) of the Constitution. The CPC however sets out the rules of practice in the criminal law in this country and must be followed. Had the trial on the charges for attempted murder and grievous bodily harm commenced and I found after the conclusion of the trial that the evidence did not sustain those two counts, I would have acquitted the prisoner but found him guilty of intimidation, common assault and assault causing actual bodily harm on the evidence all the same at the end of the trial under section 159(2) of the CPC cited above. It is for the trial judge to decide whether there is evidence to sustain the offence of attempted murder and causing grievous bodily harm once the information has been filed unless it is defective which can be remedied under section 251 of the CPC. To take it away from the trial judge because of second thought or as a result of further plea bargaining does not seem right because of the restrictive application of section 251 of the CPC cited above. Any fear of a possible acquittal verdict at the end of the trial does not really arise because section 159(2) of the Code provides the safety net for conviction for lesser offences though without formal charges. The recent introduction of the practice of withdrawing information and substituting it with a lesser charge just before the accused is arraigned is contrary to section 159(2) of the CPC. As I said in R. v. David Filia cited above, because of section 159(2) of the Code, it is misleading to appeal to the consent of the Court to accept a lesser charge in place of the original charge. The other matter is the inability of the Prosecutor to prove any previous convictions in this case under section 125 of the CPC. The prisoner was convicted and sentenced in September, 2004 by the Magistrate Court and by now the record of his conviction would have reached the Criminal Records Office at Rove Police Headquarters. For the Prosecutor to tell the Court that there were no antecedents and that the relevant record had been misplaced is not good enough. I say this because in terms of section 125 of the CPC cited above, proof could have been achieved by complying with either (a) or (b) of that section if (c) was found to be lacking. Prosecutors must do their work properly and not show ignorance or carelessness in fulfilling their duty to the Court. Proving previous convictions is an important part of the sentencing process and that is why section 125 of the CPC is in place for that purpose. The Court must maintain a high standard of performance in the criminal justice system in this country. There is one school of thought which represents the idea that small and unsophisticated jurisdictions such as Solomon Islands do not really deserve equal treatment with big and sophisticated societies in terms of standards of performance in public offices in the public service etc. I do not agree. The legal profession has its standards of performance whether the station of work is in Australia or in Solomon Islands. The standards do behave like the death the leveller. The professional standards do level all in the legal profession in whatever and wherever work station one works as a professional lawyer.

F.O. Kabui
Puisne Judge