Dobu v Regina [2006] SBHC 65; HCSI-CRAC 69 of 2006 (24 March 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 69 of 2006

TOM DOBU

-v-

REGINA

(Naqiolevu, J)

Date of Hearing: 9/03/06
Date of Judgment: 24/03/06

For Appellant: Mr. Patrick Southey
For Respondent: Mr. Simon Cooper

JUDGMENT

Naqiolevu J. The appellant appeals against the decision of the Magistrates Court of the 27th of February 2006 on his own plea of guilty and sentenced to 3 months imprisonment.

The charge is one of Giving Dangerous Drug to another contrary to section 8(b) & 39 2(b) of the Dangerous Drugs Act.

DANGEROUS DRUGS ACT

1. SECTION 8(b)

EVERY PERSON:-

Found in possession of or selling, or who shall have given or sold, to any person any substance to which this Part of this Act applies, shall be guilty of an offence against this Act.

2. SECTION 39 (2)(b)

EVERY PERSON guilty of an offence against this Act shall, in respect of each offence for which no penalty is otherwise prescribed, be liable –

(b) on summary conviction, to a fine of five hundred dollars, or to imprisonment for six months, or to both such fine and imprisonment.

GROUNDS OF APPEAL

1. That the Learned Sentencing Magistrate placed too much emphasis on general deterrence and breach of trust.

2. That the Learned Sentencing Magistrate placed too little emphasis on the mitigating circumstances personal to the Appellant, namely:

(a) his youth

(b) his previous good character

(c) his guilty plea

(d) the loss of his career and livelihood

3. That the Learned Sentencing Magistrate had insufficient regard to the maximum penalty for the offence (a fine of $500 or six months imprisonment, or both), and that he erred in imposing half the maximum period of imprisonment, notwithstanding the mitigating factors referred to in paragraph 2, and the fact that the Appellant was charged with giving rather than selling the drug, which is a less serious form of the offence.
   

APPELLANT SUBMISSION

1. Counsel for the appellant in his submission argued in relation to ground 3 that the Learned Magistrate had insufficient regard to the maximum penalty. The maximum penalty for this offence upon summary conviction is a fine of $500 or six months imprisonment or both. Section 39 2(b) Dangerous Drug Act. In imposing a sentence of 3 months imprisonment the Learned Magistrate imposed half the maximum imprisonment permissible notwithstanding the mitigating factors. The Learned Magistrate furthermore was dealing with a charge of Giving a substance to Another, not a charge of selling a substance to Another which is a more serious form of the offence. The quantity of the drug (Indian Hemp) was not large. Counsel submit that it is totally disproportionate to the maximum penalty prescribed to impose half that maximum sentence on a young first offender. Pleading guilty to a less serious example of the offence.

2. In relation to ground 1 the Learned Magistrate gave insufficient weight to the mitigating circumstances. The mitigating circumstance personal to the Appellant are some of the most powerful known to law, and they deserved more than the passing reference made to them by the Learned Magistrate. These are, the Appellant guilty plea, his previous good character, his youth, loss of livelihood, his remorsefulness, the positive things said about the Appellant by his Former Superior Staff Sergeant, and the general circumstance of the offending, an act of a naive young man, only 4 months into his time as a Probationary young constable who gave some Indian Hemp to a wantok.

3. The Learned Magistrate gave too much weight to general deterrence and breach of trust. Counsel whilst acknowledging that general deterrence and breach of trust are significant sentencing factors. The Learned Magistrate allowed these matters to obscure and outweigh all sentencing considerations. The Learned Magistrate made reference, to the effect, "to reform the RSIP and regain public confidence", the risk of this approach is that the appellant is effectively being punished additionally for sins of the other officers. The act is not of an experienced cynical experience officer, but a foolish young probationary constable with little experience of life, let alone experience police officer. He should not be denied the mercy properly owing to him as a young first offender just for the sake of improving the image of the RSIP.

Counsel note that in the lower Court although the prosecution urged a short term of imprisonment they also acknowledge that a wholly suspended sentence was within proper sentencing range. The seriousness of the offence can be balanced against the Appellant personal circumstances by imposing a custodial sentence and wholly suspending that sentence.

CROWNS RESPONSE

Counsel for the Crown in response argued that -

1. The prosecutor’s submission in the Magistrates Court was that whilst the sentence sought by the appellant’s barrister (that of a suspended prison sentence) was within the range of sentences that could be imposed, the more appropriate sentence was that of an effective prison sentence.

2. As indicated the maximum sentence for this offence is 6 months imprisonment. It is the prosecutions submission that the sentence imposed was within the range of appropriate sentences and that the Magistrate took into account the matters raised, and relied on, in mitigation by the appellants counsel. This was of course to be counterbalanced with the aggravating features of the offending. The legislature has provided that in appropriate cases of this sort the sentence may be one of imprisonment. His Worship determined that this was an appropriate case and it is submitted that giving weight to the appropriate matters that were urged upon him, both by the Prosecution and the defence, that this was a case where his sentencing discretion in this regard did not miscarry.

3. Mr. Southey in his submissions in both this court and in the Magistrates Court, places considerable store on what he indicates to be mitigating factors. His submissions in Ground 1 assert that the learned sentencing magistrate gave insufficient weight to the mitigating circumstances personal to the Appellant. It is conceded that the matters alluded to and relied on are able to be taken into account by the court as matters that should be accorded weight in the sentencing process. As ever it is a question for the court below and this case to measure the competing matters before sentencing. His Worship in his findings made specific reference to these factors. (See judgment Page)

4. The aspect of this case which increased the seriousness of the offending, were the circumstances relating to the breach of trust and the position of the Appellant at the time that the offence occurred. He obtained the drugs whilst performing his police duties, concealed them and kept them for some days before then giving them to his associate. As such it is not an isolated incident but rather one that was more sustained. In his grounds, Mr. Southey submits in Ground 2 that the learned sentencing Magistrate gave too much weight to these factors. His Worship correctly noted that the offence took place against a background where efforts are taking place within the Solomon Islands to bring about reforms to the Royal Solomon Island Police Force that would lessen the possibility of corruption. It is correctly conceded by Mr. Southey that these are "significant sentencing factors." The general sentencing consideration of general deterrence is a weighty consideration in the circumstances of cases such as these. It is not a case of the appellant being punished additionally for "the sins of other officers" rather it is a case that where it is appropriate for the imposition of a sentence that acknowledges that due weight must be accorded to the principle of general deterrence.

MAXIMUM PENALTY

The maximum penalty as prescribed by law for this offence is a $500 fine or six months imprisonment. The sentencing discretion of the Learned Magistrate therefore given any aggravating circumstance, and after considering the mitigating circumstances is a range from within a period of lesser than six months to the maximum period of 6 months. The court is of the view that the lower court in imposing half the maximum sentence may not have given sufficient weight on the mitigating factors which is strongly in favour of the appellant. The appellant was charged with the offence of Giving a substance to another, which is clearly less serious than Selling, given the gain that may be derived (notwithstanding the provision of the Section does not differentiate between the two), the drug and indeed the amount was not a large quantity.

The sentence in my view should reflect the nature of the offence and the circumstances that must be given due consideration:

The appellant is a first offender, his plea of guilty and previous good characters, his youth. The loss of his career and livelihood, his remorse and his apology. The positive things said by his former Superior, Staff Sergeant Alfred Dagi, his work, his aptitude for dealing with people and he was especially good at diffusing domestic conflicts. The offence clearly was committed by a naive young man only four months into his time as a Probationary Constable. I am fortified by the case of R-v-Minrs[1] where Batt JA with whom others agreed, accepted the following:

1. Youth of an offender particularly a First Offender, should be a primary consideration for a sentencing court where the matter properly arises.

2. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example individualized treatment focusing or rehabilitation is to be preferred (Rehabilitation benefit the community as well as the offender).

GENERAL DETERRENCE & BREACH OF TRUST

In considering Counsel’s submission on the issue of general deterrence and breach of trust as significant factors. The court is of the view that the Learned Magistrate may have allowed these matters to influence his decision. This is clear from the reference by the Learned Magistrate of the efforts to reform the RSIP and the need to regain public confidence where he said,

"I accept submission by Mr. Balea for the Prosecution that while every effort and resource had been utilized to reform the RSIP to regain the public confidence, the defendant went his own way in committing the offence which will damage the image being regain so far. Thus a general deference is considered to show to other Police Officers in RSIP to be mindful of their action because the public is watching".

The court is of the opinion that the offence whilst may be serious, given it was committed by a police officer, a member of a discipline force his action should be seen in isolation, taking into consideration the nature of the offence. The court consider that deterrence should also be an important factor. The court acknowledge the prosecution in the lower court whilst urging the court to consider a short term of imprisonment, fairly acknowledged that a wholly suspended sentence was within the proper sentencing range.

The court is of the view and agree with the defence that the seriousness of the offence can properly be balanced against the appellant’s personal circumstances by considering a custodial sentence and wholly suspending the sentence. This is to ensure that the court will not treat lightly police officers who are tempted to commit offences in the course of duty.

The court having considered the Crowns submission that the appellant court should not substitute its discretion for that of the Learned Magistrate, see Kabui J in the case of R-v-Jimmy Ahi[2]. I am of the opinion that in the case His Honour was concerned with the serious aggravating circumstance. His Honour said "The Learned Magistrate regarded as aggravating factors the use of rifle to cause fear, the fact that the appellant pretended to be a police officer the fact he was a serving prison officer and the benefit he derived from using the stolen vehicle." In this respect, the Learned Magistrate concluded. "The court takes into account his guilty plea, delay, family circumstances remorse and previous good character. But the community demands that those who terrorized innocent and law abiding members of the public and removed their property from them at gun point be severely punished."

Clearly this case can be distinguished from the appellant case given the serious and aggravating circumstances in the cited case. Justice Kabui quite rightly did not think he can substitute his discretion for that of the Learned Magistrate on the ground that had he been the Learned Magistrate, he would have acted differently on the same facts.

The court in all circumstance whilst accepting the lower courts imposition of a custodial sentence as appropriate however consider that wholly suspending, the period would ensure justice is served.

ORDER

1. The order of the lower court of the 27th of February 2006 is hereby varied to reflect 3 months imprisonment suspended for 12 months.

THE COURT

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^[1] [1998] 4VR, 235 (CA)
^[2] Crown App No: 124 of 2005