Soeasi v Regina [2007] SBHC 159; HCSI-CRC 350 of 2007 (7 December 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 350 of 2007

JEROL SOEASI

-v-

REGINA

(Naqiolevu, J)

Date of Hearing:
Date of Ruling: 7th December 2007

For Applicant: Mr. G. Squier
For Respondent: Mr. M. Unagui

APPEAL

Naqiolevu J: This is an appeal against the sentence of the Central Magistrate Court of the 18th of July 2007. The appellant was sentenced to 3 months imprisonment suspended for 6 months on condition that he be of good behaviour for a period of 6 months.

Grounds of Appeal

1. The sentence was manifestly excessive given the circumstance of the offence the mitigation, primarily the age of the appellant support the contention the sentence was clearly excessive.
   

(a) The appellant had spent a day in custody and he pleaded guilty to the offence.

(b) The appellant submit as a matter of principal the Court is required to establish a "starting point" or "head sentence" for the offence according to an objective assessment of the nature of the offence, and the seriousness of the offence. The Court should then in accordance with principle reduces this head sentence on account of the mitigating factors.

(c) The Lower Court, counsel submit should reserve the maximum penalty as the starting point of the worse case scenario.

(d) The Court counsel further submit, on account of the excellent mitigation should have reduced the sentence to a non custodial one, by way of an imposition of a fine or a binding over order. The mitigating factors cited above in particular the youth of the Appellant called for this consideration by the Court.

2. The Learned Magistrate placed too little emphasis on mitigating circumstances personal to the appellant, namely his youth, lack of antecedent, guilty plea, his co-operation with police and time spent in custody.

b. Youth is an extremely important mitigating factor.

c. The sentence was manifestly excessive taking into account the nature of the offence and the mitigating factors advanced above.

CROWN

3. The crown did not advance submission in response and left it to the Court to consider the issues raised.

4. The record of the Lower Court seem incomplete and I am only able to consider the brief note which make up the record.

JUVENILE OFFENDERS ACT

5. The Court in considering the application is of the view the appellant as clearly established by the lower court is "a child". The Learned Magistrate should therefore have dealt with him in accordance with the provisions of the Juvenile Offenders Act.

6. The provision of Section 16 of the Juvenile Offenders Act, clearly prescribed the means by which a child or young persons is to be dealt with by the Court.

Section 16 Sub-Section (a) – (K)

"Where a child or young person charged with any offence is tried by any Court, and the Court is satisfied of his guilt the Court shall take into consideration the manner in which, under the provisions of this or any other Act or law enabling the Court to deal with the case, the case should be dealt with, and, subject to such provisions, may deal with the case in any of the following manners or combination thereof, namely -

(a) by dismissing the case; or

(b) by discharging the offender on his entering into a recognizance, with or without sureties; or

(c) by dealing with the offender under the provisions of the Probation of Offenders Act; or

(d) by committing the offender to the care of a relative or other fit person; or

(e) by ordering the offender to pay a fine, damages or costs; or

(f) by ordering the parent or guardian of the offender to pay a fine, damages or costs; or

(g) by ordering the parent or guardian of the offender to give security for his good behaviour; or

(h) by directing that he be released on his entering into a bond to appear and receive sentence when called upon; or

(i) by committing the offender to custody in a place of detention; or

(j) where the offender is a young person, by sentencing him to imprisonment; or

(k) by dealing with the case in any other manner in which it may be legally dealt with:

7. Clearly the Learned Magistrate upon being satisfied of the guilt of the appellant (child) must immediately deal with him in any of the above manners or combination thereof.

COMBINATION OF ORDERS EXCESSIVE

8. It seems to me the Learned Magistrate imposed a combination of several orders not in compliance with the Juvenile Offenders Act. The order as clear from the document are that the appellant is sentenced to 3 months imprisonment, but the "sentence shall not take effect unless" during a period of 6 months from the date of the order he commits another or similar offence punishable with imprisonment. The orders then seem to include a suspended sentence under Section 44 of Penal Code and Binding Over.
   
9. The Learned Magistrate then proceeded to also order that the appellant abide by 3 conditions, to stay with is uncle, to attend church service, to be put to school. The order then sets out the period in which the order is to be operative between the period, 18th July 2007 and the 19th January 2008.
   
10. The Court must determine if these combination of sentence are excessive in the circumstance. In order to consider this the Court must have regard to the age of the appellant, the guilty plea and the character of the appellant. This must be weighed with the nature and seriousness of the offence.
    
11. The offence is one of simple Larceny, under section 261 (1) of the Penal Code, which attract a term of imprisonment of 5 years maximum.
    
12. The Court is of the view that the age of the applicant once established, is "critically important", which simply means he must be treated differently from that point. The Court of Appeal in the recent case of R-v-Kelly ([1]) said
    

"The Juvenile Offenders Act introduce a special reason for dealing with offenders defined under

Section 2 as those under the age of 18 years (a young person) and those under 14 years of age (a child). This statutory regime is plainly designed to ensure that in dealing with them for offences such child and young offender are treated differently from and more sensitively than adult offenders would be and are in similar circumstances. In this way the Act gives effect to the obligations of Solomon Islands under International Treaties and Conventions, as well as to the provisions of the Constitution in s.5 (1) that a person is not to be deprived of his personal liberty save:

"(a)....................

(g) in the case of a young person who has not attained the age of eighteen years, under the order of a Court ... for the purpose of his education or welfare."

13. Solomon Islands Government ratified the Convention of the Rights of a Child in 1995 and the Convention sets out how children and young persons are to be dealt with. I urge all Magistrates to make themselves aware of the provisions of the Conventions on the rights of a child.

14. The appellant is clearly recognized in law as a child and should have been treated with some sensitivity. The Court is of the view that while the lower Court has imposed a sentence which reflect with the provision of the Juvenile Offenders Act, he went further and clearly adopted the wrong principle of sentencing by further making an order under section 44 of the Penal Code, to impose a term of imprisonment but suspending the period. This clearly means the child could potentially be sentenced to a term of imprisonment if he breaches the provisions of S.44.

15. I am of the opinion that the Learned Magistrate has imposed a combination of sentence which is manifestly excessive in the circumstances and I must therefore order a sentence which is more appropriate to a person considered a child, by the laws of this country.

The Court having taken all these factors into consideration allow the appeal and make the following order:

ORDER

1. Appeal is allowed.
   
2. Quash the sentence of 3 months imprisonment suspended for 6 months.
   
3. Order that the conditions set by the Lower Court be maintained and these are, that he stays with his uncle Patrick Soeasi at Kounatolo Community High School, attend church services and the uncle to arrange school for him.
   

THE COURT

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^[1] Criminal Appeal No. 19 of 2006. at page 9