Susuta v Regina [2006] SBHC 45; HCSI-CRAC 176 of 2006 (16 October 2006)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 176 of 2006

SARAH SUSUTA

-v-

REGINA

(Commissioner J Lewis)

Hearing: 13 October 2006
Judgment: 16 October 2006

Mr. Ronald Talasasa for the Respondent
Mr. Stephen Lawrence for the Appellant

Susuta, Sarah - Appeal against sentence

1. PRELIMINARY

Commissioner Lewis: This is an appeal from orders of conviction and sentence.

Mr. Lawrence of Counsel appears on behalf of the Appellant. The DPP, Mr. Talasasa of Counsel appears for the Respondent.

On 14 March 2006 the appellant pleaded guilty in the Magistrates court at Honiara to one count of Larceny as a servant. The Magistrate accepted the plea and recorded a conviction.

Following her submissions in mitigation of penalty, Ms. Susuta was sentenced to imprisonment for a period of three years and 6 months. The sentence was not suspended.

The Appellant lodged her Appeal Notice on 22 March 2006. Service of the Appeal Notice was effected on 9 May 2006. She has been in custody since the date of her conviction. She did not apply for Bail.

This matter began as an Appeal against conviction and sentence. It appears that the Appellant drew her handwritten notice of appeal personally or had someone draw it for her. She does not appear to have had legal advice, at least as to the form of the Notice.

The grounds as first drawn were:

"that the sentence is too harsh and 3½ is too high. That ANZ Bank was the complainant not ICRC" (sic).

By the time the Appeal was ready for hearing, the Appellant had become represented by Counsel and her grounds of Appeal amended to read as follows:

1. The Learned Magistrate erred in accepting the plea of guilty and convicting the Appellant as the evidence presented on the plea indicated that the money appropriated by the Appellant was legally the property of the ANZ Bank not the Red Cross.

2. The Learned Magistrate erred in accepting the plea of guilty and convicting the Appellant as the evidence presented upon the plea indicated that the offence charge(sic) was duplicitous.

The Petitioner now seeks an Order that the conviction be quashed and a verdict of acquittal be entered; or

In the alternative

That the conviction and sentence be quashed and be replaced by a conviction for an alternative offence or offences and a lesser sentence.

2. THE FACTS

The facts upon which the Magistrate fond the charge of larceny as a servant proved are as follows:

The Appellant was the Administrative Secretary of ICRC. She was originally charged with 3 counts of forgery and 3 counts of uttering certain cheques with which she was entrusted in the course of her duties in order to pay accounts for her principal, the ICRC.

At some point after she received the cheques, someone, (it is not clear who), added the words to each cheques "please pay cash". By that means she obtained cash for the cheques in the amounts charged.

Instead of paying the accounts the defendant, on three different dates, presented four endorsed cheques at a Branch of the ANZ albeit on 4 different occasions, took the cash payments - a total of $59,722.93 and retained them for her own use or benefit.

By endorsing and then forging and uttering the cheques the Appellant probably would have committed a number of offences but both the Appellant and Respondent appearing before the Magistrate were content to allow the prosecution case to proceed on the basis that the Defendant would there plead to the offence of larceny as a servant of the total sum obtained by the Appellant. And she did so.

All four cheques presented by the Appellant were cashed by the same Teller at the ANZ Bank. All three beneficiaries confirmed the non-payment of the cheques into their respective accounts.

As a consequence of the actions of the Appellant, the ANZ Bank was caused to reimburse the ICRC and remains out of funds to that extent. The Teller was dismissed from the employ of the Bank on the basis of negligent misconduct.

The Appellant was arrested cautioned and interviewed on 28 April 2005. She admitted cashing the cheques and using the money for her own purposes.

3. THE APPEAL AGAINST CONVICTION

Argument initially centred around the Grounds of Appeal.

Counsel agree that the conviction recorded for the offence of larceny as a servant on the facts before the Magistrates Court cannot be sustained.

The thrust of the submissions for the Respondent were it is always open to the High Court to receive and enter an alternative verdict on the facts available on the plea and that the proper charge given the facts before the Magistrate is one of False Pretences (four counts).

Mr. Lawrence of Counsel for the Appellant submitted transactions which occurred on 16 July 2004 should represent only one conviction. I disagree - there were 2 separate offences committed.

Accordingly after an adjournment, Counsel have agreed that it is open to this Court to make a finding of a lesser, or to put it more accurately, an alternative verdict of false pretences on the facts comprising the prosecution allegations before the Magistrate.

4. IMPOSING ALTERNATIVE VERDICTS IN LIEU OF THE OFFENCE CHARGED

I asked Counsel to make submissions concerning the validity of the conviction having regard to the framing of the information.

The power to enter an alternative verdict is to be found in the Criminal Procedure Code section 171(c). The Appellant was charged with larceny as a servant and it is now proved (by a plea on her own confession) that she obtained cash in the sum totalling $59,722.93 in such a way so as to amount to an offence of false pretences she may be convicted of the offence of false pretences although she was not charged with obtaining by false pretences.

The conviction for larceny as a servant will be set aside. Four alternative verdicts of false pretences contrary to the Penal Code section 308 will be entered.

The facts support an alternative verdict alternative to that of Larceny as a Servant in the following ways, that is to say:

False Pretences, contrary to section 308(b)(i), Penal Code

Particulars of Offence

1. that Sarah Susuta of Warokai Village, West Areare, Malaita Province, on 17 June 2004 at the ANZ Bank in Honiara with intent to defraud obtained from the ANZ Bank cash the sum of $20,817.62, by fraudulently pretending that a negotiable crossed cheque No. 419774 for the sum of $20,817.62 payable to Solomon Kitano Mendana Hotel was a good and valid order for payment of the said sum to herself for her own use or benefit.

2. that Sarah Susuta of Warokai Village, West Areare, Malaita Province, on 16 July 2004 at the ANZ Bank Honiara with intent to defraud obtained fro the ANZ Bank the sum of $14,995.40, by fraudulently pretending that a negotiable crossed cheque No. 419790 for an amount of $14,995.40 payable to Guadalcanal Travel Service(GTS) was a good and valid order for payment to herself the sum of $14,995.40 for her own use or benefit

3. that Sarah Susuta of Warokai Village, West Areare, Malaita Province, on 16 July 2004 at the ANZ Bank Honiara with intent to defraud obtained from the ANZ Bank the sum of $15,879.80, by falsely pretending that a negotiable crossed cheque No. 419792 in the sum of $15,879.80 payable to Guadalcanal Travel Service (GTS) was a good and valid order for payment to herself for her own use or benefit.

4. that Sarah Susuta of Warokai Village, West Areare, Malaita Province, on 19 August 2004 at the ANZ Bank Honiara with intent to defraud obtained from the ANZ Bank the sum of $8,070.11 by falsely pretending that a negotiable crossed cheque No. 419798 in the sum of $8,070.11 payable to the Solomon Islands Electric Authority(SIEA) was a good and valid order for payment to herself for her own use or benefit.

I find each of the four counts proved beyond reasonable doubt. A conviction is recorded in respect of each of them.

I record a conviction in respect of each of the transactions for the offence of false pretences pursuant to the Penal Code Act. Section 308 which is punishable by a maximum penalty of imprisonment for 'five years'.

5. SENTENCE

The Appellant was wrongly convicted of larceny as a servant. She was sentenced to imprisonment in respect of larceny on 14 March 2006. The sentence was a lengthy one. The Learned Magistrate properly took the view that the offence involved a breach of trust and called for a sentence of imprisonment. It is clear law that such offending calls for actual imprisonment but of course it must be a sentence of imprisonment which attaches to a properly charged offence. R v Litani 45 of 1987 (unreported) Ward CJ at page 1.

She is a relatively young woman with substantial obligations. Her health is not good. I have considered the material placed before me by Mr. Lawrence and while her recent complications as a consequence of an hysterectomy is not directly related to her sentence, the factor of her mental health arising as it apparently does from depression associated welfare of her children is a matter for concern.

It is hereby Ordered:

Appeal against conviction allowed. Appeal against sentence allowed. Orders of the Magistrate quashed.

The Appellant is found guilty and convicted of 4 counts false pretences (section 308(1)(b) of the Criminal Code) and sentenced to 18 months imprisonment on each count concurrent and the sentences are backdated to commence on the 24 February 2006.

J.W. Lewis
Commissioner