Au v Regina [2006] SBHC 68; HCSI-CRAC 490 of 2005 (24 March 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No.490 of 2005

MORRIS AU

-V-

REGINA

(Naqiolevu, J)

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

For the Appellant: Ms. K Anderson
For the Respondent: Mr. P Bannister

JUDGMENT

Naqiolevu J. The appellant appeals against the decision of the Magistrate Court where he was convicted on his own plea of guilty on the following charges –

1. Liquor for Sale without licence contrary to section 59(2) of the Liquor Act.

2. Restriction on making liquor, contrary of section 50(2) of the Liquor Act.

3. Possession of Dangerous Drugs contrary to section 8(b) of the Danger Drugs Act.

The appellant in respect of the conviction was sentenced on the first count 2 months imprisonment wholly suspended for one year. On the second count 3 months imprisonment to be served immediately. Third count 2 months imprisonment wholly suspended for 1 year.

GROUNDS OF APPEAL

1. That the sentence imposed by the Learned Magistrate are wrong in principle.

2. The sentence imposed is manifestly excessive in all circumstances.

LIQUOR ACT

Section 59(2) of the Liquor Act sets out the punishment for any person in breach of the act.

Section 59(2)

"Any person carrying about, offering or exposing for sale, any liquor without a licence shall be guilty of an offence and shall be liable –

(a) for a first offence to a fine of $200.

(b) for a second or subsequent offence to a fine of $400; or to imprisonment for one year or both such fine and such imprisonment."

CROWN

The Crown at the outset had conceded to the appeal. I have taken this into consideration in determining the appeal.

The appellant as clear from the Magistrates Court record is a first offender and should have been treated as such. This is critical to the punishment imposed under the legislation. The Learned Magistrate in not considering this significant point had clearly erred in imposing the sentence of imprisonment suspended for a term. Clearly the Learned Magistrate did not have the power to impose a term of imprisonment when the legislation imposes a fine for a first offender. Magistrates are creatures of statute and must exercise the power given to them by statute, they cannot go beyond that. I find in relation to count 1 that the Learned Magistrate had exceeded his powers in imposing a term of imprisonment and therefore exceeded the powers prescribed by law.

GROUND 2

Counsel submit in relation to the second ground that it is wrong in principle to pass a suspended sentence when an immediate sentence of imprisonment is imposed. Further it is wrong in principle to pass a suspended sentence which is consecutive to an immediate term of imprisonment. I accept that the approach of imposing a wholly suspended sentence at the same time as an immediate term of imprisonment defeat the purpose of imposing a wholly suspended sentence. It is clear the Penal Code prohibits the imposition of a suspended sentence consecutive to an immediate term of imprisonment.

PENAL CODE

Section 44(5)

"Where a court passes a suspended sentence on an offender in respect of an offence and term of imprisonment in respect of another offence the court shall direct that the suspended sentence be concurrent with the term of imprisonment."

In criminal Case No. 710 of 1991, Muria J stated at p 1-2.

"The whole object of a suspended sentence is to avoid sending the accused to prison. Now by making a suspended sentence to take effect at the end of an existing prison sentence will not guarantee that during the period of suspension the accused will not go to prison. It may well be that within the period of suspension the accused faces another prison sentence. Such a situation cannot be said to be compatible with the spirit and intention of the 1987 Act, which creates the provisions for suspended sentence."

Clearly the courts are obliged as a matter of law to direct that a suspended sentence must be made to run concurrently with the term of imprisonment.

GROUND 3

As submitted by Counsel for the appellant the overall sentence imposed by the Learned Magistrate is excessive in all circumstances. The effect of the sentence imposed is that the total sentence of imprisonment is one of 7 months (if the suspended sentence were to be activated and all were consecutive), of which 4 months is wholly suspended. In this regard Counsel submit that the sentence is manifestly excessive.

Counsel submit that in taking into account all the matters raised above, together with the principle of totality, the sentence imposed by the Learned Magistrate is manifestly excessive in all circumstance and also wrong in principle.

The court is of the view that given the appellant has been sentenced to an actual term of imprisonment in relation to count 2, and the appellant has in fact served a term of 3 months imprisonment in Count 1. The appellant is hereby convicted on Count 2 and I make no further order. In relation to Count 3 I agree with Counsel that the sentence is manifestly excessive and wrong in principle. I therefore quash the sentence of 2 months immediate imprisonment concurrent with Count 2.

ORDER

1. Quash the sentence imposed in Count 1.

2. Sentence set aside.

3. Vary the sentence of 3 months imprisonment and order the appellant be sentenced to 2 months imprisonment concurrent with Count 2.

THE COURT