Lobu v State [2006] SBHC 66; HCSI-CRAC 492 of 2005 (24 March 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No.492 of 2005

SELWYN LOBU

-V-

STATE

(Naqiolevu, J)

Date of Hearing: 25/11/05
Date of Judgment: 24/03/06

For Appellant: Ms K Anderson & Ms Lidimani
For Respondent: Mr. P. Little

JUDGMENT

Naqiolevu J. This is an appeal against sentence by the accused who was convicted on his own plea of guilty by the Magistrates Court on the 15th of August 2005.

The charge is that of Assault – Police Officer contrary to section 247(b) of the Penal Code. The accused was sentenced to three months imprisonment.

THE GROUNDS OF APPEAL:

1. The Learned Magistrate erred in law when he considered that the starting point for this type of offence was six months immediate imprisonment.

2. That the sentenced imposed by the Learned Magistrate was manifestly excessive in the circumstances in particular that the Learned Magistrate did no place sufficient weight on the mitigating circumstances.

APPELLANT

Counsel for the Appellant submit the whilst each case must be determined on its own merits, sentence imposed by the High Court and the Magistrate Courts can be used to give some range of appropriate sentences. This will give guidance to sentencing courts and assist in maintaining a degree of consistency between courts when sentencing offences of the same kind. However they are not binding and are not mandatory starting point.

Counsel submit that in making his determination in this case the Learned Magistrate relied on the comments by the Chief Justice in Daniel Fa’afunua v R^[1] where he made the following comments:

"The normal range for this type of offence would easily fall between 6-12 months... An immediate custodial sentence must be expected when any police officer is attacked the length of sentence will depend on the existence of any aggravating features or the lack of it."

The Learned Magistrate erred in law in forming the view that his discretion when passing sentence on the appellant was restricted to a starting at a range of sentence between 6-12 months imprisonment. Counsel submit that these are obiter comments by the court and that at the end of the day the inherent sentencing discretion of the court remains. The comment by the Chief Justice are merely matters which can be taken into account by the sentencing court but at the end of the day it is a matter of what weight should be attached to it.

Counsel for the Appellant on the second ground that the sentencing Magistrate imposed a manifestly excessive sentence in particular sufficient weight was not placed on the mitigating circumstances. These are that among other circumstance, his age, he is a first offender and pleaded guilty at the earliest possible time. The Appellant had been working and supporting his family. Counsel submit that the Learned Magistrate placed too much weight on the obiter comments in the Fa’afunua^[2] case and consequently did not place sufficient weight on the mitigating factors of the appellant.

CROWN

The Crown in response submit that what the court has heard is tantamount to retrying the case. The Chief Justice comment is a statement of principle, and it ought not to be ignored. The appellant has pleaded guilty to the offence and a sentence imposed. Counsel submit the appellant is not working now and unable to be contacted. Counsel further submit that the Magistrate court imposition of a fine in similar circumstance should not be the norm. In the Fa’afunua case the totality principle would have been appropriate.

COURT

The offence of assaulting a Police Officer is serious and must be given an appropriate sentence to reflect the seriousness of the offence. The offence attracts a maximum of 2 years imprisonment and the Magistrates has the discretion to impose a term after taking into consideration mitigating circumstance in favour of an accused. These are if he is a first offender, a young person and his plea of guilty which will save the court’s time.

These are circumstance that should guide the court in determining a sentence. The Learned Magistrate in considering the comments by the Chief Justice in the case of Fa’afunua that an immediate custodial sentence, is appropriate and the starting is six months may have applied the wrong principle. The case of Fa’afunua may be distinguished from the appellant’s case given the nature of the offence and the circumstance which was clearly accepted by the Learned Magistrate. In the case of Fa’afunua the Chief Justice was making the statement in relation to the seriousness of the offence given the appellant is a leader, a Minister of State and who should be setting an example. The nature of assault was serious and committed on the police officer twice and the officer and indeed the officers who attended the appellant’s house were in uniforms and clearly he had shown total disrespect on the officer. The appellant in this case is an ordinary unsophisticated member of the community, who had consumed some alcohol and the events that followed and the point where he reacted to the police officer who was not in uniform at the time. The appellant is a first offender who pleaded guilty to the offence.

The Learned Magistrate had not considered these factors when he decided that an immediate custodial sentence must be imposed and setting six months as the appropriate starting point. Clearly in taking this course. He has not properly exercised his sentencing discretion.

I accept the defence submission that too much emphasis was placed on the immediate custodial sentence that the Learned Magistrate had not exercised the discretion to impose a sentence other than a custodial sentence, given the mitigating circumstances that should be weighed favourably in his favour.

I find the Magistrate had erred in taking this Course and quash the sentence of 3 months and order the sentence be suspended for twelve months effective from the date he was released from custody.

ORDER

1. Quash the sentence of 3 months immediate custodial sentence.

2. Order the sentence of 3 months imprisonment suspended for a period of twelve months.

THE COURT

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^[1] Criminal Appeal Case No. 296 of 2004
^[2] Ibid