Regina v Dekudeku [2007] SBHC 51; HCSI-CRC 286 of 2006 (11 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 286 of 2006 (Review Case)

Regina

v.

Patteson Dekudeku, John Leoa, Greg Morris and Moses Bocho

(Palmer CJ.)

Hearing: 6th October 2006
Date of Review Judgment: 11th April 2007

N. Mirou for the Crown
M. Anders for the Defendants

Palmer CJ.: The four Defendants Patteson Dekudeku, John Leoa, Greg Morris and Moses Bocho ("the defendants") were each charged with burglary and housebreaking offences and convicted after a guilty plea had been entered and sentenced to six months in prison for each offence. The sentences were made consecutive to each other so that a total sentence of twelve months in prison was imposed but suspended for twelve months on their entering into good behaviour bonds.

On 15th July 2006 I directed a review to be ordered of the sentences imposed under section 47 of the Magistrates Courts’ Act [cap. 20] in particular to consider whether the suspended sentence should be quashed or not. Because of the remoteness of the location where the Respondents resided, that review could not take place until October 2006.

The facts of the case can be summarised as follows. On 15 October 2005, the defendants entered the Kopiu Adventist School house and the nearby teacher’s residence and stole rice, sugar, exercise books, pins and pens from the school house and a radio cassette player, two audio cassettes, cord wire and two solar batteries from the teacher’s residence. Total value of the property stolen was some $930.00. Following the commission of the offence and prior to the involvement of police the defendants returned the radio cassette player and the two solar batteries. The total value of these items was some $800.00. Accordingly the total loss of property was valued at some $130.00. Other items such as the exercise books and pins were also returned but were not attributed a specific value.

It was not disputed that no damage was done to the premises. Access to the residence was effected through an open window, while access to the school was effected by the removing of some glass louvers but none of which were damaged.

According to the submissions of the defendants in their mitigation, they had been hungry and intended initially to take only some rice and to later replace them, however that went beyond the original plan and other properties were taken.

According to the school teacher, Ms. Jenta Tome, the boys were approached to repay the value of the property not returned but when they did not do so promptly the matter was reported to the police.

In mitigation it was pointed out that the defendants were juveniles at the time of allegation, save for Patterson Dekudeku ("Dekudeku") who was 20 years. Greg Morris was 16, Moses Bocho 17 and John Leoa 15. Except for Dekudeku, all were still in school. Dekudeku was working as a volunteer for "Save the Children" apart from daily garden chores. He was married with an eleven month old child.

Although Dekudeku was older it was not suggested that he was the leader of the group.

I note submissions made in the Magistrates Court that the offence was almost entirely without organisation and premeditation. Mr. Mirou conceded it can be more aptly described as a "foolish venture" and reflected childish stupidity than serious criminal intent. It appears the decision was made when they were refused a request to obtain a packet of rice on credit. Only Morris Gregg entered the premises; the others were joined as being party to a joint criminal enterprise. The motive was one of obtaining rice and to have it repaid, not reflective of greed or some wider criminality. They all made admissions to police on the first available opportunity and entered guilty pleas when the matters were first mentioned before the court. Their contrition was reflected in their apologies given in open court at the time of their being sentenced and stated their intention never to do anything like this again.

None of them had any previous convictions and were all first offenders with previous good character.

In his written submissions to this court, Mr. Anders points out that whilst it is conceded that the offences under review are serious offences for which an immediate term of imprisonment might ordinarily be expected, there exists a residual discretion with the sentencing magistrate to impose a sentence other than an immediate term. The imposition of an immediate term cannot be said to be mandatory, each case is to be determined on its own facts and circumstances. I accept there are no hard and fast rules on sentencing and the sentencing process cannot be operated like a computer.

I accept submissions of learned Counsel that even where a sentence of imprisonment is called for, where appropriate, the sentencing magistrate retains discretion to suspend a sentence of imprisonment. I accept that some of the factors which may influence the sentencing magistrate in the exercise of his discretion relates to the age of the offender, his criminal history, his remorse, likelihood to re-offend and the peculiar circumstances of the offence.

Mr. Anders submits that in this case, the learned Magistrate took into account all relevant factors; their guilty pleas, the fact they cooperated with police, their remorse and contrition demonstrated by the fact that much of the property was returned prior to police involvement in the matter and their age and youthfulness in the matter. But for Dekudeku, all the rest ranged from 15-17 years. In terms of involvement however, Dekudeku at age 20 did not take the leading role. The suggestion to commit the offence came from Morris Gregg and who took the leading role in the offence. Any sentence therefore to be imposed upon Dekudeku as an adult must bear that relationship and role in perspective. There has been no suggestion that as the adult in the group he influenced anyone to commit the offence.

Mr. Anders also pointed out that there were no aggravating features to the offence, such as,

• use of weapons,
• confronting occupants,
• property stolen lost or destroyed,
• damage to premises,
• property involved of great value,
• evidence of premeditation or planning, and
• evidence suggestive of a course of conduct.
  

I had requested review of this file to consider whether on the face of the records the suspension order was appropriate in the circumstances. Having now heard submissions from Mr. Anders and Mr. Mirou, I am satisfied the order of suspension imposed by the learned Magistrate should not be interfered with in the peculiar circumstances of this case. I am satisfied the mitigating factors relied on by the defence in support of the defendants case; their youth, guilty plea, cooperation with police, remorse and contrition demonstrated by the return of most of the property stolen, the absence of aggravating factors and that they were all first offenders, relevant to the question whether an immediate custodial sentence should be imposed or not. Each case will have to be looked at on its own facts and appropriate sentences imposed. Whereas normally offences of burglary and housebreaking will attract an immediate custodial sentence, I am satisfied this is one of those cases where a suspended sentence was appropriate and that no further orders need be made to interfere with the orders of the learned Magistrate.

The Court