Maelanga v Regina [2007] SBHC 38; HCSI-CRAC 599 of 2005 (2 February 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case Number: 599 of 2005

Mannesah Maelanga

v.

Regina

(Palmer CJ.)

Date of Hearing: 17th August 2006
Date of Judgment: 2nd February 2007

K. Averre for the Appellant
P. Bannister for the Respondent

Palmer CJ.: The Appellant Mannesah Maelanga ("Maelanga") was granted leave to appeal out of time on 31st March 2006 against sentences imposed by the Magistrates Court between 19th March and 12th August 2004, for numerous offences committed during the period the country was in turmoil and law and order was virtually non-existent.

He has also appealed against a conviction and sentence imposed on 22nd April 2004 for 43 counts of false pretences contrary to section 308 of the Penal Code.

Issue of extension of time.

Section 283 of the Criminal Procedure Code ("the CPC") sets out the appeal provisions for criminal cases in the Magistrate’s Courts to the High Court. The time limit fixed by section 285 for appeals to be lodged at the Magistrates Court is fourteen days from date decision is delivered. The period of limitation however may be enlarged by the Magistrate’s Court or the High Court at any time for good cause.

I have listened carefully to the submissions of Mr. Averre on this point and satisfied that good grounds exist in which the time limitation for appeal should be enlarged.

At his hearing in the Magistrate’s Court Mr. Maelanga was represented by Crystal Lawyers. They had lodged an appeal (original appeal) as early as 2nd April 2004. After filing of that appeal, Maelanga requested a change of advocate and the Public Solicitor took over instructions. It appears that in the changeover, papers got misplaced resulting in the delay in the appeal being processed.

I accept explanations of learned Counsel in this matter regarding the delay. I am also satisfied no real prejudice has been incurred as the total sentence imposed which he has been required by the Magistrates Court to serve and is now on appeal before me was 14½ years in prison.

I grant enlargement of time to file appeal against sentence and conviction.

Appeal against conviction.

The appeal against conviction relates to some 43 charges of false pretence contrary to section 308 of the Penal Code. Maelanga had been charged together with another co-accused, Alfred Fa’aramoa. In an earlier appeal of the co-accused[1], dealt with by Goldsbrough J., it was discovered the file containing the Judge’s notes, evidence, reasoning and judgement could not be located despite extensive search carried out in the Magistrate’s Court and High Court.

In his submissions to the Court in that appeal, Mr. Bannister pointed out that without the Magistrate’s notes it was virtually impossible to argue the appeal. He submitted that the appropriate order would be to have the appeal quashed and remitted to the Magistrates Court for a re-trial. The Director of Public Prosecutions would then exercise his discretion in the matter to indicate that the re-trial would not proceed on public policy grounds as the accused in that case had already served some 21 months as of 18th August 2005 and by the time of the re-trial later in the year or early in 2006 he would have served more than the 2/3 remissions. When the matter came before his Lordship, he accepted Crown’s submissions and concessions on the matter and quashed the conviction.

Mr. Bannister appearing in this appeal also makes the same concessions and accordingly, the conviction is quashed and the matter remitted to the Magistrate’s Court for a re-trial.

Appeal Against Sentence

Mr. Averre submits that the total sentence of 14½ years, now reduced to 11 years after the appeal against conviction has been allowed, is still manifestly excessive. Learned Counsel reminded the court of the paramount principle in sentencing that the sentence must be proportionate to the gravity of the crime and that an offender should not be sentenced to a higher period of imprisonment than is warranted taking into account the objective features of the crime and the individual or subjective matters peculiar to the individual offender. Mr. Averre cited the case of Baumer v. The Queen[2], in support of his submissions. He pointed out that the circumstances of the offending and personal circumstances of the appellant needed to be considered. He also submitted that sentences imposed on other defendants in similar circumstances also ought to be considered to avoid disparity in sentencing.

Learned Counsel cited numerous case authorities[3] in support of his submissions that the sentences imposed were manifestly excessive. I am grateful to Counsel for providing me with those extensive case authorities to consider.

Learned Counsel also reminded me of the general principles governing concurrent/consecutive sentencing[4]. In particular the case of Stanley Bade v. R.[5] in which his Lordship Ward CJ, pointed out the difference between the single transaction test and totality principle test.

Mr. Averre pointed out that the court in this case is concerned primarily with the totality test. There are two stages in this test. The first is to see whether the total sentence is substantially over the normal level of sentence appropriate to the most serious offence for which the accused is being sentenced. If so, the total should be reduced to a level that is "just and appropriate". The second is to consider whether in the particular circumstances of the person being sentenced, it would be a crushing penalty. If so, the court should consider a reduction of the total even if the first test had been complied with.

Appeal Counts 1 and 2[6].

In this case, Maelanga had been convicted of one count of common assault and malicious damage. These related to an incident at the Solomon Kitano Mendana Hotel. The malicious damage offence related to the damage caused to the glass door of the Hotel when Maelanga put his knee to it. The value was described as not high.

The assault charge related to a fracas which had occurred in which it was alleged a punch had been thrown at the then Minister for Health, Benjamin Una. It was suggested it could have been a slap instead of a punch. The Minister fell to the ground got up and went back into the Capitana Restaurant. Maelanga followed him into the Restaurant during which time the Restaurant door was damaged. He had reconciled with the victim, Benjamin Una. A total of 12 months was imposed, 6 months on each count and made consecutive.

A number of cases in the Magistrates Court were referred to by Mr. Averre in which different sentences ranging from fines, conditional discharges, suspended sentences and sentences of imprisonment up to 3 months had been imposed.

The offences were committed in December 2002; Maelanga was convicted and sentenced on 19th March 2004.

I accept submissions of learned Counsel, that the offences were not so serious as to warrant a total of 12 months. The circumstances of offending do not justify such a lengthy sentence. The mitigating factors weigh in favour of a much reduced sentence than what was imposed. I am satisfied it is excessive. I quash the original sentence and substitute one of 3 months for each count and concurrent.

Appeal Counts 3, 4, 5, and 6

These related to incidents which occurred at the Honiara Yacht Club on 8th May 2002. Maelanga was convicted with one count of larceny from a person contrary to section 270 of the Penal Code, malicious damage contrary to section 326 of the Penal Code, intimidation contrary to section 231 of the Penal Code and demanding money with menaces contrary to section 259 of the Penal Code. He was sentenced to 3 months, 1 month, 6 months and 3½ years respectively. All the offences were part of the same transaction and so rightly made concurrent.

The issue before me is whether the sentence of 3½ years for demanding money with menaces excessive in the circumstances. I have had opportunity to consider the facts of the case. The circumstances of the offending were quite serious. There was aggression, force and use of abusive words to those at the Club with threats to burn down the building. There were others involved with Maelanga and guns were visible including threats to use them. There was simply much intimidation and harassment going no and naturally those at the Club felt very intimidated and frightened; terrified would be the more appropriate word. They complied with his demands simply to protect the place and themselves from being harmed.

I have had opportunity to look at the comparative sentences submitted for my consideration and although they showed that this sentence is at a higher range, I am not satisfied it can be described as manifestly excessive and warrants this court’s intervention. The appeal against sentence is dismissed.

On whether or not this sentence should be made consecutive, I am simply not satisfied there is any basis for it. The totality test when applied to this case does not allow it. I quash the order making this sentence consecutive to other sentences and substitute order for this sentence to be concurrent.

Appeal Count 51

This related to a robbery charge of four new vehicles at Toyota Ela Motors, valued at some $600,000.00. The circumstances of the offence showed that the manner in which the offence was committed was very serious so much so that the Manager of the company felt obliged to hand over the vehicles immediately. There were aggravating features present such as, being armed with rifles, wearing camouflage clothing, using threats of violence and being in a group with others. I am not satisfied on the material before me that the sentence imposed was manifestly excessive.

On the issue of the totality test, I am not satisfied the learned Magistrate took into proper account the totality of the sentence being imposed when she said that three of the years were to be made consecutive to any other previous sentence. It appears the presiding Magistrate did not have all the facts before her to enable her have a better appreciation of the effect of such an order when that sentence was imposed. Had that been brought to her attention the inappropriateness of making such sentence consecutive would have been obvious. She did not have that opportunity, which I now have and to correct the anomaly. Having 3 years to be consecutive will have the effect of imposing a total sentence which is simply unjust and inappropriate in the circumstances. Even if it may be considered to be just and appropriate it still offends against the second limb, whether it will have a crushing penalty on this prisoner. I quash that order and substitute order for the sentence of five years to be concurrent and effective from 28th July 2004.

Appeal Counts 52, 53 and 54.

These related to separate incidences of intimidation and demanding which occurred between 1st July 2001 and 1st January 2002 against the Solomon Star Newspaper and Hon. Albert Laore MP for Shortland Islands at the Airport. Sentences of 2 years each for the intimidation in respect of the incidents at the Solomon Star Newspaper Office were imposed and made concurrent to each other but consecutive to the demanding offence resulting in a total of four years to be imposed.

It is not in dispute that the circumstances in which those offences were committed and the fear and trauma engendered were very serious. It is also not in dispute those were not normal times. Those with guns wielded power and ruled the lives of the community. People obeyed simply to avoid being hurt or their property damaged. The sentences imposed were to reflect the abhorrence that members of the public have towards this type of callous behaviour and whilst they may be on the higher range, the sentences of 2 years each for the offences cannot be said to be manifestly excessive. On the other hand, whilst the order to have count 54 consecutive to counts 52 and 53 may be justifiable when the totality test is applied, I find that the total sentence of 4 years in the circumstances is excessive. What was unfortunate about those times was the fact that law and order was non-existent and so people like Maelanga could continue unhindered in breaking the law one after another without being apprehended.

I allow the appeal, quash the order to make count 54 consecutive to counts 52 and 53 and substitute order to have it concurrent instead. These in turn should be made concurrent to the rest of all the sentences imposed.

Conclusion

Bearing in mind that the total sentence imposed should not be substantially over the normal level of sentence appropriate to the most serious offence and where he had been sentenced to five years for the most serious offence, being robbery, a total sentence of 11 years for all offences in my respectful view is simply manifestly excessive. There must be a clear light at the end of the tunnel for this prisoner so that having realised the error of his ways, reformed and being rehabilitated in prison, that he is not crushed by what would otherwise be an unjust and unnecessarily severe penalty. The total sentence of five years is more than adequate to drive home the point that all his errant ways and behaviour during the ethnic tension are not condoned by society and that he must return to the community a changed person, for if he returns, he can expect little sympathy from the courts.

The total sentence to be served therefore is 5 years with effect from 28th July 2004. He was arrested and remanded in custody in September 2003; convicted and sentenced on 19th March 2004 for the first of his offences in counts 1 and 2. He would have served approximately 6 months in pre-trial detention. That period is to be taken into account.

As at 28th January 2007, Maelanga would have spent a total of 36 months in prison. Taking the ⅓ remission factor into account, which he would have been entitled to for good behaviour whilst in prison, he would have served a substantial part of the minimum period required under law for the total of five years custodial sentence. Mr. Averre referred me to a letter from Inspector Steve Harwood of the Professional Standards and Internal Investigations (PPF/RAMSI) in his submissions to the actions of this man in risking his own popularity and well being for the purposes of protecting police personnel during the rioting by other prisoners. This is clear evidence of a man that has reformed in prison and should be given every encouragement to re-integrate into society at the earliest opportunity. That happens to fall today and I am satisfied he should be released at the rising of the court.

ORDERS OF THE COURT:

1. Appeal Counts 1 and 2:

- Allow appeal against sentence;
- Reduce sentences of 6 months on each count to 3 months each and concurrent.

2. Appeal Counts 3, 4, 5 and 6:

- Dismiss appeal against sentences of 3 months, 1 month, 6 months and 3½ years respectively;
- quash order making the total sentence of 3½ years consecutive to other prison sentences and substitute order that it be made concurrent.

3. Appeal Counts 7-50:

- Quash convictions and remit matter back to the Magistrates Court for re-trial.

4. Appeal Count 51:

- Dismiss appeal against sentence of 5 years;
- quash order making 3 years consecutive to all other sentences of imprisonment imposed and substitute order that the total sentence of 5 years is made concurrent and effective from 28th July 2004.

5. Appeal Counts 52, 53 and 54:

- Dismiss appeal against sentence of 2 years on each count;
- quash order making sentence of 2 years in count 54 to be consecutive to the sentences in counts 52 and 53, and substitute order that the sentence of 2 years in count 54 is concurrent;
- order that the total sentence of 2 years is concurrent to all other sentences imposed.

6. The period spent in custody is to be taken into account.

7. Having served a substantial part of his prison sentence, he is to be released forthwith at the rising of the court.

The Court

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^[1] Alfred Fa’aramoa v. Regina CRAC 185/04, 8^th September 2005
^[2] (1988) 166 CLR 51, (High Court of Australia) “.... the sole criteria relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of any appropriate sentence.”
^[3] Regina v. Leslie Kakaluae, Central Magistrates’ Court November 2003, Acting Chief Magistrate Chetwynd; John Gerea v. Regina (unreported) Criminal Case No. 243 of 2004; Regina v. James Kili CMC, D. Chetwynd ACM; Daniel Fafunua v. Regina CRAC No. 296 of 2004, Palmer CJ.; R. v. Alfred Fa’aramoa CMC, 12 July 2004, Hamilton-White PM; R. v. John Limei CMC, 25 May 2004, Hamilton-White PM; R. v. Donsdale Lomo and Nicholas Na’agi CMC, 14 July 2004, Upwe PM; R. v. Jimmy Ahi HCSI-CRC 124/05; R. V. Kelesiwasi HCSI-CRC 326/04, 15^th July 2005; R. v. Andrew Fioga HCSI-CRC 222/04; R. V. Mae & Others HCSI-CRC 120/04, 7^th September 2006; Thompson Kilatu v. R. HCSI-CRAC206/04; R. v. Mae, unreported -2005, Sentence 2006.
^[4] See section 9 of the Criminal Procedure Code.
^[5] (1988/1989) SILR 121 Ward CJ; see also Augustine Laui v. DPP (unreported Criminal Appeal Case No. 11 of 1987) per Ward CJ at page 2
^[6] CMC-CRC 335/04 and 1179/03