Mani v Regina [2007] SBHC 49; HCSI-CRAC 488 of 2006 (5 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 488 of 2006

ROBERT MANI

-v-

REGINA

(Mwanesalua, J.)

Hearing: 3 April 2007
Judgment: 5 April 2007

DPP for the Crown
R. Mani in person

JUDGMENT

Mwanesalua, J:

1. This is an appeal against conviction and sentence. The Appellant is Mr. Robert Mani. He was convicted of one count of obtaining money by false pretence in the Magistrates’ Court in Honiara on 17 November 2006. He was accordingly sentenced to serve 16 months in prison. The Appellant lodged this appeal on 20 November 2006. His grounds of appeal were:

1. that there was no documentary evidence to prove the charge of false pretence on which he was convicted and sentenced.

2. that the summonses to the Witnesses who testified against him were defective in that they were signed by a Police Officer rather than by the witnesses themselves according to law.

3. that the sentence was excessive in view of the mitigating factors advanced on his behalf in the court below.

Facts on the Record

2. The Commissioner of Lands granted a Fixed-Term Estate in Parcel Number 191-035-206 ("the Land") to Mr. Oliver Otuana on 1 July 1993. He borrowed about $8,000.00 from Mr. Albert Laure to register it with the Registrar of Titles in 1993. Mr. Otuana and Mr. Laure then talked about finding a buyer to purchase the land. Mr. Laure told the Appellant about this arrangement. The Appellant told Mr. Laure that he would find a purchaser for him. Mr. Laure would then contact Mr. Otuana about such purchaser when identified by the Appellant.

3. The Appellant and a friend of his went to Mr. Tan SI Yong (the victim) on 3 August 2006. The Appellant told the victim that the person who was with him was Mr. Otuana who had land to sell. In fact, the person who was with the appellant was not Mr. Otuana at all, but a different person. The victim told the Appellant that he was interested in purchasing the land but needed documentary evidence of the land. The Appellant and the victim then went to Mbua Valle to inspect the land.

4. On 4 August 2006, the Appellant and the victim went to the office of the Registrar of Titles. The Appellant sought and obtained a certified copy of the Register of the land. Later that day, the Appellant, the victim and two other persons went to the Honiara Hotel. The Appellant introduced one of these persons as a Lawyer and the other was his friend who went with him to see the victim on 3 August 2006 whom the Appellant had introduced to the victim as Mr. Otuana who owned the land. The Lawyer was to witness the execution of the documents between the victim and the Appellant’s friend who purported be Mr. Otuana who own the land. These persons were neither a Lawyer nor Mr. Otuana. The Appellant then produced two documents which the victim and his two friends signed in his presence. The victim could not read but could recognized one of the documents as similar to the one which the Appellant obtained from the Office of the Registrar of Title on 3 August 2006. The other document was new to him. The victim was led by the Appellant to believe that he was signing the documents as agreements for the sale and transfer the land to him by Mr. Otuana. Once the documents were signed, the victim signed and issued two cheques of $60,000.00 and $5,000.00 each to the Appellant for the land. The Appellant cashed the cheques on the same day.

5. The victim realized that the land had not been sold to him at all by Mr. Otuana. The victim reported the Appellant to the Police who investigated the case and recovered the sum of $15,000.00 from the Appellant. The sum of $50,000.00 was not recovered as it had been used by the Appellant for his own purposes. The purported sale of the land between the Appellant through his agents and the victim was done without the knowledge of both Mr. Otuana and Mr. Laure.

The Appellant’s Case

6. The Appellant contends that the Sale of the land to the victim was done in accordance with an agreement between Mr. Laure and himself; there were no documents produced at his trial to prove his offence; that the summonses to the Prosecution witnesses were defective as they were signed by a Police Officer rather than by the Witnesses themselves as required by law; that the sentence of 16 months imprisonment was excessive and deprived him of his responsibilities to support his children and spouse.

The Case for the Crown

7. The Crown’s case is that the Appeal should be dismissed as there was evidence to convict the Appellant; that the sentence imposed on the Appellant was appropriate in view of the seriousness of the offence; and that the mitigating factors which the Appellant urged upon this court in order to reduce the sentence have already been considered by the Magistrates’ Court which imposed sentence on the Appellant.

Decision of the Court

8. The land was never sold to the victim. The land can only be lawfully sold and transferred to the victim by Mr. Otuana who is the Registered Owner of the land.[1] Mr. Laure’s position was that he would inform Mr. Otuana of the person interested to purchase the land. Both Mr. Laure and Mr. Otauana were unaware of the purported sale of the land to the victim by the Appellant.

9. It was the Appellant who first introduced his friend as Mr. Otuana to the victim. Further, it was also the Appellant who brought the documents and the two persons who signed the documents with the victim at the Honiara Hotel. The Appellant then took the documents to be stamped after they were signed but were never returned to the victim, the documents were therefore not tendered as exhibits during the trial in the Magistrates’ Court. It was the execution of the purported sale and transfer documents which induced the victim to part with his money. This court holds the view that the conduct of Appellant constituted evidence of false pretence upon which he was convicted under Section 308 of the Penal Code. This offence can be committed representation by words, writing or conduct, of a matter of fact, either past or present, and which the person making it knows to be false.

10. The Witnesses for the Crown in the Magistrates’ Court were the victim, Mr. Otuana, Mr. Laure and Ms. Gweneth Ata’agalo. They were not served with the witness summonses signed by the Police Officer as alleged by the Appellant. They were brought to court by warrant of arrest. They were therefore brought to the court to testify against the Appellant lawfully. They were not summoned with defective summonses as claimed by the Appellant in this appeal.

Appeal against Sentence

11. The Appellant was charged with false pretence under Section 308 of the Penal Code. It is a felony. It carries a maximum penalty of five years imprisonment. The sentence imposed on the Appellant as alluded above was 16 months imprisonment. He says that such sentence has caused hardship to his spouse and their eleven children. He urges this court to reduce that sentence because there is no one to care for his spouse and children; that his spouse is unable to support herself and their children financially as she is unemployed; and that he has no brothers and sisters to support his spouse and children. The Appellant’s family circumstances which he put before this court were already taken into account before the sentence of 16 months was imposed on him. This court does not have any compelling reasons to reconsider them here. His previous convictions were also taken into account before this sentence was imposed on him.

Conclusion

12. There was evidence to convict the Appellant of obtaining money by false pretence as charged. He obtained the total sum of $65,000.00 from his offence. This was a huge sum of which only $15,000.00 of it was recovered. The offence was planned by the Appellant. It was a serious offence. He was very fortunate to get a lesser sentence for it. This court holds the view that the sentence imposed on the Appellant by the Magistrates’ Court was not excessive. The Appeal against Conviction and Sentence are both dismissed. Order accordingly.

Francis Mwanesalua
Puisne Judge

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^[1] See Fixed-Term Estate Registrar of Parcel Number 191-035-206 – “Exhibit 1” and Section 172 of the Land and Titles Act (Cap.133)