Kala v Reginam [2007] SBHC 88; HCSI-CRC 127 of 2005 (29 June 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case (Appeal) No. 127 of 2005

PETER KALA

v

REGINAM

Date of Hearing: 1st June 2007
Date of Judgement: 29th June 2007

Stephen Lawrence for the Appellant
Ronald B. Talasasa (Director of Public Prosecutions) for the Crown

Palmer CJ.:

The appellant Peter Kala ("Kala") was convicted in the Magistrates Court on 30th March 2006 after pleading guilty to seven charges as follows:

(i) That on 27 December 2004 he did steal property contrary to section 261(1) of the Penal Code;
(ii) That on 27th December 2004 at night he broke and entered a dwelling house and stole property contrary to section 299(a) of the Penal Code;
(iii) That on 27 December 2004 he falsely pretended to two people with the intent to defraud and did obtain property contrary to section 308(a) of the Penal Code;
(iv) That on 10 April 2005 he did assault a person contrary to section 244 of the Penal Code;
(v) That on 7 July 2005 he by false pretences obtained property with the intent to defraud contrary to section 308(a) of the Penal Code;
(vi) That on 24th September 2005 he did assault a person contrary to section 244 of the Penal Code;
(vii) That on 6th October 2005 he stole property contrary to section 261(1) of the Penal Code.

He was sentenced as follows:

(i) Count 1: 1 year imprisonment;
(ii) Count 2: 3 years imprisonment;
(iii) Count 3: 9 months imprisonment;
(iv) Count 4: 6 months imprisonment;
(v) Count 5: 1 year;
(vi) Count 6: 9 months;
(vii) Count 7: 1 year.

The total sentence imposed was 8 years. The presiding Magistrate however ordered that only counts 2 and 5 were to be served cumulatively, the remainder concurrently. This meant Kala was required to serve a total of four years.

Two grounds of appeal were relied on; first that the learned Magistrate erred in imposing a manifestly excessive sentence; and secondly, that he erred in not ordering all the sentences to be served concurrently.

Count 1 related to the theft of an esky and a mountain bike from the house of Donald Kudu. The offence occurred around 9.00 p.m. on 27 December 2004. He took the items and went into a waiting taxi.

The second count related to events which occurred immediately after the commission of the first offence. From Donald Kudu’s house, he went to another house at the Lord Howe Settlement and entered the dwelling house of Peter Kelauko. He took a suitcase containing children and adults clothes and three pairs of shoes. He took those items to the same taxi but the taxi driver by then realised what was happening and through his quick thinking and action contacted Police. Kala was intercepted shortly after and arrested. He admitted stealing the properties to Police during interview on the next day 28th December 2004.

Mr. Lawrence submits that the sentences of 1 year and 3 years were manifestly excessive in the circumstances. He submitted that no force or weapon was used, no violence involved and that no one was injured or any property damaged. They were more opportunistic offences which took place when no one was at home. The appellant was captured shortly after the commission of the offences thanks to the honesty and vigilance of the taxi driver who refused to participate in the criminal activities of the appellant and reported him. I commend the taxi driver for this. All taxi drivers should seek to emulate this taxi driver for his actions in contributing to the maintenance of law and order in the city. Every citizen should be vigilant and alert and inform Police of any criminal activities they see.

Full recovery was made of the properties stolen and early admissions made. These must be viewed in favour of the appellant.

I am satisfied the circumstances of both offences do not fall on the upper range or level of seriousness. I allow the appeal, quash the sentences of one and three years and substitute sentences of 6 and 18 months respectively.

The third count related to an incident in which Kala obtained the sum of $100.00 from a shop keeper at the Zion Canteen on the pretext of handing over a video deck which he claimed he had made agreement with the owner of the shop to put as a deposit. When the money was given to him he took off without leaving the video deck as deposit. He was later located and arrested and charged.

Learned Counsel submits the sentence of 9 months imprisonment imposed was manifestly excessive especially where the amount stolen was a mere $100.00 and that a guilty plea had been entered.

I am satisfied a lesser sentence of three months is appropriate in the circumstances.

Count 4 related to the offence of common assault against the daughter of the owner of KS fast food bar. The appellant had ordered some food but after eating part of his food got up and walked off without paying. When confronted by the daughter of the canteen, he turned around and pushed her causing her to fall down. Some vigilant bystanders however saw what was happening and intervened. They held him until Police arrived and took him away. I commend the actions of those bystanders. What has happened in those two instances has been the example of people in the community taking responsibility for the administration of justice by ensuring that those who break the law are handed over to the Police to be dealt with. Everyone must demonstrate an ownership of law and order issues in the country and help the Police and one another in reporting cases and thereby curbing crime in the city. This is what community policing is all about where the citizens of the country become the eyes and ears and lend a helping hand for the Police in dealing with crime. Every citizen should take responsibility and participate in addressing law and order issues in the country. The swift actions of everyone in those cases resulted in the immediate apprehension of Kala until police arrived where he was then arrested and taken away. The appellant was sentenced to imprisonment for six months.

The learned Magistrate noted that the act of pushing was not in the high end of the scale for this type of offences, for which I agree. It is not to be compared to a punch or a kick. I accept submissions of learned Counsel that the sentence warranted something much less than six months. I allow the appeal, quash the order of six months and substitute a lesser sentence of 3 months.

Count 5 related to an offence of false pretence which occurred on 7th July 2005 at about 6.45 pm in the evening at KTT shop, Kukum. After collecting some goods from the shop valued at $94.00 he told the shop keeper to charge it to the account of a person by the name of Ben Leupo. He then gave his name as Ronny Jimmy. When the person named Ben Leupo was contacted he denied any knowledge of anyone by the name of Ronny Jimmy. The matter was reported to Police and the appellant arrested and charged. He pleaded guilty, was convicted and sentenced to imprisonment for 1 year.

The maximum sentence for such offence is five years. I accept submissions of learned Counsel that this was an unsophisticated offence and that he was bound to be caught up by the law at some point in time. On the other hand it demonstrated an element of recklessness on his part; a no care attitude, which must be excised from his mind. Honiara consist of different peoples co-existing together in the city and he cannot afford to continue living with this type of mentality and attitude for not only will the law catch up with him but destiny most certainly will.

I am satisfied the sentence was manifestly excessive in the circumstances and should be reduced to one of three months.

Count 6 relates to an assault committed on a security guard in the course of his duty at Pugahu shop, Ranadi. The appellant had demanded some goods at a shop but it appears did not have the money to pay for them. When accosted by the security guard he punched him and knocked him to the ground. The police fortunately were passing by at that same time, intervened and arrested him straightaway. He pleaded guilty to the charge and was sentenced to 9 months imprisonment.

I accept this was not an offence in the higher scale. On the other hand the circumstances were again completely unwarranted. The learned Magistrate was correct in imposing a sentence of imprisonment. It appears the victim did not incur any serious injury. He did get up quickly and escaped from the appellant. I accept a sentence of 9 months for this offence to be excessive. I will quash the sentence and reduce it to one of 6 months.

Count 7 relates to an offence committed on 6th October 2005 in which he obtained some goods from KTT shop to the value of $67.50 without paying for them. He was sentenced to 12 months imprisonment. He was drunk at the time of commission of the offence and that it was not his first time to do this at that shop. I am satisfied nevertheless the sentence of 12 months was manifestly excessive taking into account the circumstances of the offence. I quash the sentence of 12 months and impose one of six months.

The second ground relied on was that the learned Magistrate erred in not ordering that the sentences all be served concurrently. The effect of which would be if the first submission failed to have a sentence of three years instead of four years being served.

In the situation where there is a multiplicity of offences the court is obliged to look at the totality of the behaviour and ask itself what is the appropriate sentence for all the offences[1].

In the circumstances of this case, the aggregate of the sentences imposed for all the offences amounted to 45 months in prison. The court should then stand back and look at this aggregate and decide whether it is appropriate in the particular case. If the court considers that it is substantially over the normal level of sentence appropriate to the most serious offence for which the appellant is being sentenced, the total should be reduced to a level that is just and appropriate[2].

The most serious offence for which the appellant has been sentenced by the court is for burglary, carrying a maximum of life imprisonment for which he has been sentenced to 18 months in prison. Clearly the aggregate of 45 months in prison is in excess of the sentence of 18 months imposed for the most serious offence and accordingly should be reduced to a figure that is just and appropriate in the circumstances.

This brings me to the issue of previous convictions. I bear in mind the principles that previous bad character cannot increase a sentence beyond the proper term[3] and that whilst protection of the public is its principal consideration, it guards against the tendency to sentence for past convictions. The court rather should seek to ensure that the sentence imposed is one which would not be inappropriate for the offence and that even in the worst of cases some allowance is made for a plea of guilty[4]. The court also should be mindful of the fact that even if the sentence may be just and appropriate but would amount to a crushing penalty, the court should also consider a reduction of the total.

Kala has a string of previous convictions which go as far back as 1986 for very similar offences, the most common being that of false pretence and obtaining money by false pretence. He was only 22 years old when he started on this cycle of offences and has been in and out of prison since. The longest period of sentence he had served at one time had been 2 years, but no sooner was he out of prison then he started to re-offend. The clang of the prison gates principle has not worked it seems for Kala for he had been given so many opportunities with short sharp sentences to awaken his conscience to honest and community living but they only seem to have numbed or deadened his conscience. This man clearly needs help in terms of counseling, teaching and close supervision from those close to him and those who will make the time to assist him.

To that extent I will direct that a social welfare report be prepared on Kala by the Social Welfare Office in an effort to determine why he keeps committing such offences and to make any recommendations as to how he can be helped. Any visit in prison by an officer from that Office should be facilitated by Prison Authorities. I will also ask that someone from his church denomination, whether it is a Pastor or Counsellor to visit him also whilst in Prison and provide counseling and guidance to him about his ways, how to live peacefully with other people in society and how to make an honest living. The Bible has some very pertinent things to say about a thief and a liar.

Exodus 22:7, I quote: "If a man shall deliver unto his neighbour money or stuff to keep, and it be stolen out of the man's house; if the thief be found, let him pay double."

Proverbs 6: 30-31: "Men do not despise a thief, if he steal to satisfy his soul when he is hungry; But if he be found, he shall restore sevenfold; he shall give all the substance of his house."

Revelation 21:7: "He that overcometh shall inherit all things; and I will be his God, and he shall be my son. But the fearful, and unbelieving, and abominable, and murderers, and whoremongers, and sorcerers, and idolaters, and all liars, shall have their part in the lake which burneth with fire and brimstone: which is the second death."

The Bible does have some very direct words to say about liars and thieves and should not be taken lightly in this life for this is the only opportunity one has to get his own life straight and right with God; not after one dies.

I will also ask that any elder or chief from his home village, community or language group to also consider teaching him how to behave in a society of multi-cultural people and to stop stealing from other people. In some societies, a thief’s hand is chopped off for stealing; in others a thief is flogged in open public and in almost all societies a thief brings shame not only to himself but to his family. This has been described in more colourful language in the phrase "a thief stinks".

I have made requests rather than directions in the latter as they are dependent so much on the willingness and availability of people who will take the time to assist this man to reform, rehabilitate and to be able to reintegrate into society as a useful member of society rather than a burden.

I am satisfied the total sentence that is appropriate and just in the circumstances of this case is one of 24 months. I grant orders as follows.

Orders of the Court:

1. Allow the appeal.
2. Quash sentences imposed by the Magistrates Court and substitute sentences as follows:
   
   • (i) Count 1: 6 months;
   • (ii) Count 2: 18 months;
   • (iii) Count 3: 3 months;
   • (iv) Count 4: 3 months;
   • (v) Count 5: 3 months;
   • (vi) Count 6: 6 months;
   • (vii) Count 7: 6 months.
     
3. Direct that sentences imposed in respect of Counts 2 and 7 to be made consecutive whilst the rest concurrent.
   

The Court.

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^[1] Barton October 6, 1972, CSP A5.3(a) per Lawton L.J.
^[2] see test in Smith v. R [1972] Crim. L. R. 124 approved in Bade v. Reginam [1988] SBHC 10 [1988/1989 SILR 121 (21 December 1988) per Ward CJ.
^[3] Kaboa v. R (1980/1981) SILR 43 at 46
^[4] R. v. Mansell⁵ and R. v. Crow; R. v. Pennington⁶, Lord Taylor C.J.