Gore v Reginam [2007] SBHC 53; HCSI-CRC 84 of 2006 (25 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 84 of 2006

ELLY GORE

V.

REGINAM

(Palmer CJ.)

Date of Hearing: 23rd May 2007
Date of Judgement: 25th May 2007

R. Cavanagh for the Appellant.
R. B. Talasasa for the Respondent

Palmer CJ.:

Elly Gore was convicted on his own plea of guilty by the Magistrate’s Court (Western) for the following six offences:

1. Stealing one black basket, two blankets, two pillow cases from a dwelling house belonging to Tom Seka on the 18th of March 2005.
   
2. Stealing the sum of $52.00, one tool bag and one pocket knife from the Methodist Church Office at Gizo on 16th March 2005.
   
3. Stealing $320.00 from a woman in the same house he was living in on 18th March 2005.
   
4. Breaking into the Gizo Community High School and stealing a large number of property, with total value of $1,415.00 on 16 March 2005.
   
5. Escaping from lawful custody on 28th March 2005.
   

He was sentenced by the Magistrates’ Court as follows:

Count 1: 9 months imprisonment;

Count 2: 6 months imprisonment;

Count 3: 6 months imprisonment;

Count 4: 12 months imprisonment; and

Count 5: 3 months imprisonment.

All the sentences were made cumulative to each other resulting in a total of 36 months imprisonment.

He was re-arrested and remanded in custody on 30 January 2006. He has been serving his sentence of imprisonment since his conviction on 2nd February 2006.

He appeals against sentence on three grounds:

(i) that the sentences were manifestly excessive in all the circumstances;

(ii) that the learned Magistrate erred in imposing consecutive sentences when the offences were so close in line to each other;

(iii) that the learned Magistrate failed to apply properly the second stage of the principle of totality.

In his sentence, the learned Magistrate took into account the seriousness of the offences. He noted that the sentences carried various maximum sentences as follows: (i) larceny from a dwelling house, fourteen years; (ii) simple larceny or stealing, a maximum sentence of five years; (iii) house breaking – fourteen years; and (iv) escaping from lawful custody, two years. He noted that the offences entailed entering into homes and offices of people and stealing money or goods. They were not a one off situation but consisted of repeated offending over a short period of time. The learned Magistrate also took into account the fact that the appellant had one previous conviction and that no recovery for the money stolen was made, though it seems that most of the property stolen were recovered. The learned Magistrate also took into account the fact that he was a very young person, 19 years old at the time of commission of offences and that a guilty plea had been entered at the earliest opportunity, saving court time and consistent with remorse. The learned Magistrate took into account the totality principle and ordered all the sentences to be cumulative.

The learned Magistrate cannot be faulted on his analysis of the seriousness of the offences committed. They entailed entering into homes and offices other than through the door and money and property removed. Entry to a person’s home or office should not be made without his permission or consent, whether it is locked or not. Our society and our young people must be taught at an early age to respect the property, homes and offices of people, companies, schools and churches. Those who break that trust and respect and thereby break the law must expect to be dealt with sternly by the courts as a means of teaching and reminding them of the boundaries and limits in ones peaceful co-existence in society. A peaceful and prosperous society is inextricably linked to a lawful and orderly society; one where its citizens abide by societal norms, standards, expectations of behaviour and the rule of law.

I am satisfied the learned Magistrate adequately took into account the elements of retribution and deterrence in this case. That by imposing an immediate custodial sentence he made clear to this appellant that he was being punished for breaking the law; to the public, to be aware that those who commit similar types of offences will expect to be treated in the same way by the courts.

I am not satisfied however that the learned Magistrate adequately took into account the element of rehabilitation and thereby failed to properly address those issues in the context of the totality principle and committed an error of law. Whilst on one hand he was entitled to make each sentence cumulative, in the circumstances of this case where each were separately committed, when the element of rehabilitation is taken into account, I am not necessarily satisfied the sentences should all be made cumulative.

In her mitigation, Ms. Swift referred to the youth of this appellant and asked the court to bear in mind principles of rehabilitation when sentencing him. She pointed out the lack of family support this young man had at the time of commission of offences and that his father had failed to pay for his school fees to enable him attend school. This was highlighted again before me by learned Counsel Mr. Cavanagh when he told court that the appellant became frustrated and depressed and started drinking which led to and contributed to his inappropriate behaviour. In his further submissions before this court, Mr. Cavanagh says that he is in a position to assure the court of the support of other family members this time, his sister and her husband who have indicated their willingness to assist him when released from prison. Mr. Cavanagh told the court that the appellant intends to stay with his sister and become involved in chicken farming. The appellant also told the court he had decided not to drink alcohol again and wants to make a fresh start in life. He told the court that he has made contact with a Pastor from the Bible Way Church who has indicated willingness to assist him on his release from prison as well.

I have made a request that if possible the sister and father of this appellant and the Pastor or someone from the Bible Way or South Seas Evangelical Church be present today. If they are in court today, I thank them for availing their time to come.

For the principles of rehabilitation and reintegration into society to be meaningful, it is important that supervision, mentoring and guidance are provided to the appellant. This more often than not can come from close family members and other civil society and non-government organisations and groups, government bodies set up to assist young problem persons, or church groups. The part played by family members and church groups is important in taking this appellant under their wings or care and to provide guidance, direction and supervision on his release, much of which will be on a voluntary basis. The fact he has indicated willingness to reside with his sister and her husband will not only provide him with a roof over his head but a place of residence he can call home and give a sense of stability at this crucial stage of his growth and development as a young man. It will also provide a real opportunity for mentoring and supervision from someone in that home and from the Church. His desire to raise chickens for a living is demonstrative of good rehabilitation prospects to make an honest living instead of living a life as a thief.

This appellant partly blames his father for his deviant behaviour resulting in the commission of those offences, but he must realise and understand that his father is not responsible for his actions. Yes his father had failed to carry out his fatherly responsibilities in paying for his school fees, but that is no excuse or justification, for his actions. He alone is responsible for his misdeeds and must account for them.

I am satisfied the sentence of 12 months imposed for housebreaking should not be disturbed. That is a sentence well within range and satisfies the principles of retribution and deterrence. I am not so satisfied however with the sentence of 9 months imposed for larceny from a dwelling house bearing in mind that all of the items stolen were recovered. This should be reduced to 6 months and made consecutive.

The two larceny offences should further be reduced to 3 months each and made concurrent. In one count of larceny, he stole money from someone in the same house he was staying in. The appellant has indicated his willingness to make repayment when he starts earning money. That is consistent with someone who is remorseful and should be encouraged to make repayment unless he has been forgiven or released of it. In the other count of larceny, a small amount of money, $52.00 was stolen. Again that sum should be repaid. Where money stolen has been repaid in full, the court should take that factor into account as a mitigating factor as it is consistent with remorse.

The sentence of 3 months for escaping from lawful custody should not be disturbed. I am satisfied as well the order making it consecutive should not be disturbed. The total sentence to be served therefore is 21 months. The appellant having served a substantial part of it should be released at the rising of the court. He should also immediately acquaint himself with his family members and the Pastor of Bible Way Church and begin life afresh as a changed person for destiny will catch up with him if he does not take seriously the resolutions and commitments he has made to this court to move on in life.

Orders of the Court:

1. Allow appeals in respect of counts 1, 2 and 3.
   
2. Dismiss appeals in counts 4 and 5.
   
3. Quash orders of the Magistrates’ Court in respect of counts 1, 2 and 3 and substitute orders as follows:
   
   • (i) Count 1: Reduce sentence of 9 months to 6 months and made consecutive;
     
   • (ii) Counts 2 and 3: Reduce sentences of 6 months to 3 months each and made concurrent;
     
4. Total sentence substituted is 21 months. The appellant having served a substantial part of the sentence is to be released at the rising of the court.
   

The Court.