Kaieti v Regina [2007] SBHC 93; HCSI-CRC 358 of 2006 (27 July 2007)

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FAUKONA J: This is an appeal by Mr Alick Kaieti. He was charged for a number of offences arising out of events alleged to have occurred on 1s January 2001. On 2nd of November 2006, the Appellant was convicted in the Central Magistrates Court on the following offences:

2.	Count 1:	Arson contrary to Section 319 of the Penal Code.
	Count 4:	Criminal Trespass contrary to Section 189(1) of the Penal Code.
	Count 6:	Common Assault contrary to Section 244 of the Penal Code.
	Count 7:	Malicious Damage contrary to Section 326 of the Penal Code.
	Count 8:	Malicious Damage contrary to Section 326 of the Penal Code.

3.	After being convicted the Appellant was sentenced as follows:
	Count 1:	4 years imprisonment.
	Count 4:	3 months imprisonment.
	Count 6:	Fine $100 (stay 30 days in default 10 days imprisonment).
	Count 7:	6 months imprisonment.
	Count 8:	6 months imprisonment.
	All terms to be served concurrently with each other.

4. Against conviction and sentence, a notice of appeal was filed on 13th August 2006. On 24 July 2007, Counsel for the Appellant made submissions abandoning appeal against conviction and confine to appeal against sentence only. Again submissions are confined to Count 1 above. Other four counts are untouched. It is apparently appropriated in this case as the only lengthy sentence is on count 1 and all are concurrent with each other.

5. The maximum penalty for the offence of Arson is life imprisonment, and the maximum penalty a Principal Magistrate could impose is five(5) years imprisonment. Section 27 (1)^[1]

7. The Magistrates Court found that late 31st December 2000 the defendant (now appellant) in company of others, met the victim of the assault. After an altercation, the defendant punched the victim.

8. Later, the defendant attended the area of the home of Patrick and Audrey Billy with others and trespassed therein and damaged property. Audrey and Patrick identified the defendant.

9. Early morning of 1st January 2001, a number of persons attended the home of Roger Sae occupied by Freddy Billy. The defendant set fire to it, damaging property owned by Freddy and Sae. Hilda saw and identified the defendant.

10. Later that morning, the defendant returned to Patrick and Audrey’s house with others and more damage was done. Hilda and Patrick identified the defendant.

11. Ms Brown submitted that the learned Magistrate failed to thoroughly consider and take into account all the factors put on plea of mitigation on behalf of the Appellant. Most of the facts advanced by Ms Brown were listed in the sentencing note made by the learned Magistrate.

12. In furtherance she also submitted that the learned Magistrate failed to consider and had made no adverse finding when Freddy was drunk; came demanding for more beer and was disrespectful. The Appellant removed him from the property and Freddy retaliated and attacked the Appellant with a bottle.

13. That the learned Magistrate also failed to consider that the event took place within few hours and were not the result of cool calculated planning.

14. She also submitted that six years delay reduces the importance of personal and general deterrence.

15. The learned Magistrate’s indicated in his record that no remorse was shown, Ms Brown submitted that the Appellant show some remorse but effectively ignored by the Magistrate. Manifestation of that remorse is shown when $1700.00 compensation

16. The value of the property was at the lower end of the scale (estimate at $15,000.00) compared to other cases where the value is high.

17. The offence before the Court is not among the most serious example of this type of offence.

18. She submitted that the sentence should be quashed as it was manifestly excessive and contained error and this Court should embark on fresh exercise of sentencing discretion. Finally, she submitted number of case authority to support her submission.

19. Mr Talasasa for the Respondent in reply advanced that the learned Magistrate has listed all the facts surrounding the case, both in mitigation and aggravation in which he has taken into account and considered carefully, before arriving at figure of 4 years imprisonment which is fair and justified. He submitted, although paper does not reflect fully; the machinery of the mind of the learned Magistrate has fully in operation when formulating an appropriate sentence to arrive at; which he did and eventually concluded by adjudging four years as appropriate sentence.

20. Can it be said that 4 years imprisonment for Arson is manifestly excessive in the circumstances of this case. Put it in another way, has the learned Magistrate tune his mind fully and taken into account
when considering an appropriate sentence to impose; all the relevant facts made available to him.

21. The record that holds the learned Magistrates sentence, clearly spell out the mitigating factors as; married man and children to support, no prior convictions save one "drunk and disorderly" when young, nothing since. Good record till tensions, RSIP officer at that time (2000-2003). Offence was committed at the height of the tension, lawlessness time; offence committed five years ago.

22. What fact else the learned Magistrate failed to consider. There is nothing on file in particular any written submissions on mitigating factors. However, the only point perhaps the learned Magistrate failed to consider is the adverse actions of the complainant which led to him assaulted the Appellant with a bottle. Secondly the question of delay which will greatly reduce personal and general deterrence. In my view this could have been considered had it been submitted. Probably there was nothing submitted at all so it does not attract consideration. In fact the learned Magistrate in my view, has considered all the relevant facts, made available before him to be considered before arriving at a sentence which he did.

23. As everything else is important, consideration of circumstances and facts of the case is one thing, consulting authority for sentences guideline is another. In this case Ms Brown submitted a number of useful authority where this Court had imposed sentences for arson. As usual each case is decided upon its own circumstances, and there is no mathematical formula to stick to.

24. Do’oro v R^[2] – Kabui J deal with an appeal re: the offence of Arson. The building that was burnt was bank agency to cover up stealing of $138,000.00. It was a callous plan arson with two Police Officers who were promised to be paid $5,000.00 each. Four (4) years imprisonment is found to be excessive and reduced to 3 years.

25. R v Mwasio^[3] where Muria CJ sentenced the prisoner to 3 years for burning down a dwelling home.

26. R v Mino^[4] Palmer CJ sentenced 3½ years for arson where logging company building approximately three quarters of million dollars was completely destroyed.

27. In R v Mouala^[5] Palmer CJ sentenced for the $355,000.00 damage to a Church School. Commented around 3 years could be normal for this type of offence.

5 years. The case involved burning of two dwelling homes during the course of military action on the Weather Coast where the entire village were forced from their homes and the village burned. The Court of Appeal acknowledged that in Solomon Islands a sentence of 3 years for arson is typical. It did not criticize that sentencing tariff.

29. Upon reading those cases it is clear that sentences imposed by this Court ranges from 3 -5 years for arson. More common is three years. When considering the facts, those cases are more aggravating than this one with more loss of value.

I find the learned Magistrate’s errors in not consulting relevant cases that deals with arson and types of sentences the Court had imposed. This will assist in deciding the starting point.

Therefore imprisonment for (4) years is little over the mark. The agreed starting point in considering sentence for arson in this case is three(3) years.

30. Ms Brown submitted in her written submission outlining the delay in this case which the learned Magistrate has failed to consider before deciding an appropriate sentence to impose.

31. Mr Talasasa for the Crown has conceded to the submissions advanced, and confirm the court below has not fully considered the issue of delay and hence suggested that the sentence imposed should be reduced.

32. This offence occurred on 1/1/2001. The accused was not arrested until mid 2005. The trial took place in November 2006 at the Central Magistrates Court.

33. Roger Sae reported the incident to Police a day after the incident. He and Appellant are both Special Constables at that time. The matter was not properly investigated by Police or pressed by Sae. Instead enter into negotiations with the Appellant in relation to propose payment of compensation. $1,700.00 for demanding $15,000.00 was paid in 2003 but the matter appeared not to have been pursued. Shortly after Sae left Guadalcanal. Police file was then lost.

34. The parents, Patrick and Audrey made no report to Police pending the outcome of Sae’s negotiations.

35. From the date of commission of the offence to the date of trial is five(5) years and ten months. Obviously the period of delay is a strong mitigating factor to be taken into account in passing sentence, and must have an effect of reducing a custodial sentence imposed by the Court.

36. Ms Brown has referred to many appropriate cases which discuss the issue of delay. I must thank her for her great assistance. I have selected the most appropriate ones.

37. Kyio v R^[7], Palmer CJ (on appeal in a incest case) said that the substantial delay mean a reduction of a 5 year sentence being reduced to 3 years. He cited Patterson Runikera v DPP where his Lordship Ward CJ was very critical of a delay of 5 years describing it as scandalous are likely to cause injustice.

38. Foli v R^[8], Palmer CJ, on appeal was dealing with a fraudulent conversion where there had been 5 years delay between offence and charging. He said unreasonable and excessive delay was a relevant factor. Delay has always been a relevant matter in mitigation. At page 5.8 he said,

"the delay which resulted from the ethnic troubles had nothing to do with this appellant, it was not his fault. The criminal process failed because of the insurmountable problems it seems the Police Force was subjected to during that period. The fact if the delay should not be taken against him. It is a very relevant factor in this Appellant’s case. A long custodial sentence is hard to have a sense of effect on his new life and a crushing effect on him. I am satisfied insufficient weight was given for delay."

The learned Judge reduce the sentence and giving credit for delay, suspend part of the sentence.

39. R v Oge^[9], was a rape case. Kabui J in sentencing took regard of the fact that the charge had been hanging over his head for 5 years of no fault of the accused. The inordinate delay was contrary to Section 10(1) of he Constitution. Circumstances had changed over the 5 year delay for the good of the accused and it was not right to now penalize him with imprisonment 5 year later and deprive him of all he had gained and achieved in his life over that time. The entire prison term was suspended.

40. With those cases the court’s stand is clear. It is well established that delay is a mitigating factor to be taken into account and must have the effect of reducing a custodial sentence.

41. In this case, during the period of delay the Appellant has got on with his life. He has six children, two born during the period of delay, one in early 2005 and a baby in 2006. He supports his family by ensuring ends are met. He worked as taxi driver after ceased employment as Special Constable in 2003. Certainly long term imprisonment will have a crushing effect upon his family. After 5 years and ten months their dad was taken away especially when they aged between one year and fifteen years.

42. The delay is no fault of the Appellant. The case was reported a day after the incident. He had been around in Honiara ever since. Ethnic tension is no excuse – see Foli v Regina above. The fault lies upon the Criminal Investigation Office. Neither can negotiations for propose compensation be seen as a stumbling block for delaying investigations. That has always been done where personal belongings are lost or destroyed, but criminal investigation has to be done with vigour.

43. The record of judgment by the learned Magistrate sets out the chronology of delay but failed to consider that in passing the sentence, with clear indication, that he has taken delay into account.

44. Having set 3 years as a bench mark and taking delay as a genuine mitigating factor which must have effect of reducing custodial sentence, the sentence of 4 years imprisonment be reduced to 18 months imprisonment.

High Court of Solomon Islands

Kaieti v Regina [2007] SBHC 93; HCSI-CRC 358 of 2006 (27 July 2007)