Una v Regina [2007] SBHC 17; HCSI-CRC 402 of 2006 (24 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 402 of 2006

BETWEEN:

BENJAMIN UNA
Appellant

AND:

REGINA
Respondent

Date of Hearing: 5 April 2007
Date of Judgment: 24 April 2007

Mr Lawrence for Appellant
Mr Mirou for Respondent

JUDGMENT

Cameron PJ

Issue

1	This appeal against sentence raises an interesting point as to whether the magistrate at sentencing ought to have expressly given the defence an opportunity to call evidence on an important mitigating factor which had not been accepted by the prosecution or by the Court. Facts Supporting Charge
2	On 25 September 2006 Mr Una was sentenced by the Central Magistrates’ Court to 2 and a half years imprisonment on two counts of fraudulent conversion.
3	This related to his activities on 22 July 2005, when he was then the Minister for Health and Medical Services in the Solomon Islands Government. In his capacity as a member of Parliament, he received a grant of SBD$40,000.00 specifically for distribution to a Kwanasia Cattle Project.
4	The SBD$40,000.00 was deposited into Mr Una’s West Kwara’ae Constituency Account at the ANZ Bank on 22 July 2005. That same day he withdrew $34,500.00 from the account by way of a cash cheque, and deposited that sum into his personal account. He then withdrew $20,000.00 in cash from that same account.
5	Also on 22 July 2005 a further cheque for $5,000.00 from that same West Kwara’ae Constituency Account was presented at the ANZ Bank by Rose Tarasisio. The finding was that this was a repayment of a loan made by Rose Tarasisio to Mr Una. Sentencing Decision
6	In his sentencing decision, the magistrate painstakingly considered a number of matters both for and against Mr Una. The fact that he was a Minister of the Crown and had breached the trust vested in him by virtue of that office weighed heavily against him, as one would expect.
7	In mitigation, the magistrate took into account the guilty plea, the fact that he had repaid some small part of the money, his service to the country as a member of parliament, his previous good services as a police officer, his contribution towards peace during the tension, that he had no previous convictions, and that he was a good family man.
8	The magistrate fixed the starting point of the sentence at 3 years, and then discounted it by 6 months taking into account the guilty plea and the various mitigating factors mentioned. Alleged Error of Law
9	What the magistrate plainly did not take into account was a submission by the defence that Mr Una had in fact handed the majority of the converted $34,500.00 to members of his constituency, rather than spending it on his own interests. The submission was that this was given for a variety of worthy causes, including funerals, farming, school fees, sanitation, transport and some medical costs.
10	In respect of the $5,000.00 repaid to Rose Tarasisio, the submission was that the money was originally borrowed from her to pay for Mr Una to fly to Auki to attend the funeral of a member of his constituency.
11	It is apparent that the magistrate listened to these submissions but did not indicate to counsel one way or the other whether he accepted them. Once those defence submissions were made, the Crown submitted that there had been no evidence to substantiate them.
12	It should be noted, though, that the assertions as to how the money was spent did not contradict the prosecution’s summary of facts upon which Mr Una was sentenced. The summary of facts was silent on this matter.
13	The magistrate in his judgment referred to the matter, stating: "In respect of how the money was spent, I accept the prosecution submission that no evidence to that effect was given". No more was said by the magistrate on that topic.
14	Clearly, then, the magistrate disregarded the submission because of the lack of evidence. The effect of this was that the assertion that Mr Una had used the majority of the money to benefit his constituents was not taken into account as a mitigating factor. In other words, Mr Una received no credit for this in the fixing of his sentence.
15	Mr Lawrence for the defence argues that with a matter as relevant and important as this, if the magistrate did not intend to accept the submission he should have alerted counsel to this and given the defence the opportunity to call evidence on the point.
16	Mr Lawrence submits that the failure to do so amounted to a breach of natural justice and constituted an error of law such that the sentence ought to be quashed. Legal Analysis
17	Clearly the assertion as to how Mr Una spent the funds was a relevant and important point which, if accepted, would have been a very real factor in his favour in the sentencing.
18	The PNG case of Belawa v The State [1988-1989] PNG R 496 serves as a useful authority that in cases of misappropriation of funds or property, the use to which it is put is relevant to sentencing.
19	As to the proper approach for the Court to take at sentencing, the English Court of Appeal Case of R v Newton (1983) 77 Cr. App. R.13 is relevant. There the Court effectively held that in a non-jury case, where there is a sharp divergence on a question of fact which is relevant to sentence, then the sentencing judge should adopt one of two courses. The first is to hear evidence on one side or the other and come to a conclusion. The second is to hear no evidence, and come to a conclusion on the basis of submissions by counsel. Where this second course is adopted, and there is a substantial conflict between the two sides, the version of the defendant must be accepted so far as possible.
20	That case was followed by the English Divisional Court in R v Williams (1983) 77 Cr. App. R 329. The Court reaffirmed that where there is a substantial conflict between the version put forward by prosecution and defence, the Court must hear evidence or accept, as far as possible, the defendant’s version.
21	I find both these cases to be persuasive and consider the approach set out by them to be the appropriate one to follow.
22	In the present case the prosecution’s submission that no evidence had been called by the defence on the point was tantamount to stating that Mr Una’s assertions as to how the money was spent was not accepted.
23	At that point, the magistrate was in effect faced with a substantial conflict between the prosecution and defence versions. It was substantial because the point at issue was, if accepted, a strong mitigating factor in favour of Mr Una and if taken into account would have operated to reduce the length of the sentence.
24	It was, then, incumbent on the magistrate to either accept the assertions made for the defence, or, if he was not prepared to do so without evidence then to advise counsel of that and provide the opportunity for that evidence to be called. I add that if that opportunity was not then taken up by the defence then of course the magistrate would be entitled to proceed to sentencing and to disregard the assertions.
25	I expressly limit my decision to the circumstances of this case, which involves a strong mitigating factor which, if accepted, would inevitably have operated to reduce the sentence. My decision is not to be taken as requiring magistrates or judges to signal to counsel on every occasion when they do not accept a factual submission put forward by way of mitigation.
26	It is a question of degree – where facts unsubstantiated by evidence are put forward in mitigation and they will clearly have a real impact on the level of sentence, then if the magistrate is not prepared to accept the defendant’s version he must give the defence the opportunity to call evidence.
27	Conversely, there are a myriad of factual submissions made in sentencing which may be relevant background but cannot be readily identified as having the potential to make a real impact on the sentence. In these instances, the normal and appropriate procedure is for the magistrate to assess the various assertions as best as he or she can, without the need to either accept the defence version or advise that evidence would be required.
28	In between the contrasting situations will be the area of facts unsubstantiated by evidence which could influence the sentencer but which can be corroborated by the tendering of letters, testimonials and the like. For example, these are often tendered where it is asserted that the defendant is of good character and has carried out community work in the past. Such practices are of course entirely appropriate.
29	For these reasons, I find that the magistrate has erred in law by not providing the defence with the opportunity to call evidence on this important point. I therefore quash the sentence, except for that part which deals with reparation, and reads as follows: "Under Section 27 of the Penal Code, I make order that the $5,000.00 paid in the Public Solicitor’s Account be paid to the victim and as agreed, his other vehicle to be sold to pay the balance as compensation to the victim". That part of the sentence shall remain intact.
30	In view of my findings, and the fact that I propose to re-sentence Mr Una, it is not necessary for me to consider any of the other appeal points. Re-Sentencing
31	I have decided not to remit the matter back to the Magistrates’ Court because I have sufficient material available to impose a new sentence on Mr Una.
32	In saying this, I make it clear that I am prepared to accept the defendant’s assertions, through his counsel, as to the use to which he put the majority of the converted moneys, as well as the reason he borrowed money from Rose Tarasisio in the first place.
33	I consider that an appropriate starting point for the sentence was two and half years imprisonment. I consider that a reduction of one year for the early guilty plea and all the other mitigating factors (including how the majority of the money was spent and the reason for the loan) to be appropriate.
34	I therefore substitute a sentence of 18 months imprisonment, effective from the commencement of his sentence on 25 September 2006, with the original order of reparation to remain undisturbed.
By the Court