Idris v Regina [2008] SBHC 29; HCSI-CRC 108 of 2008 (3 July 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 108 of 2008

FATAH IDRIS

-v-

REGINA

Date of Hearing: 24 June 2008
Date of Judgment: 3 July 2008

Mr. Wallwork for Appellant
Mr. Coates for Respondent

DECISION ON APPEAL AGAINST SENTENCE

Cameron PJ
1	Fatah Idris appeals against a 4 year term of imprisonment and an order that $2,500 compensation be paid.
2	In April 2008 he pleaded guilty to a variety of charges and was sentenced on 11 April. The offences and sentences were summarised by the learned Magistrate as follows:
			Count 1: Count 2: Counts 3 to 9: Count 10: Count 11:	False Declaration: $1,000; 7 days to pay; in default 3 months imprisonment Money laundering: 4 years imprisonment Obtaining by false pretence: 4 years imprisonment Uttering an Exhausted Document: $2,500 to be paid to the Quality Inn Possession of forged documents: 3 years imprisonment
	All sentences of imprisonment to be served concurrently with Count 2. Total: 4 years imprisonment with effect from 17 August 2007 plus $2,500 compensation. The sentence was ordered to have effect from 17 August 2007 because Mr. Idris had been on remand in custody from that time.
3	The essential facts are that on 10 August 2007 Mr. Idris and his wife Rosie Idris arrived in Honiara from South Africa. Their sole purpose in making this trip was to convert stolen travellers cheques in their possession into Solomon Islands currency, and then convert that currency into British pounds and American dollars. To do this they needed false passports.
4	The criminal behaviour of the pair commenced as soon as they had stepped off the plane in Honiara that Friday. On arrival at the airport Mr. Idris completed an ‘HM Customs Passenger Baggage Declaration’, declaring he did not have in his possession articles which exceeded $500 in value. In fact he was in possession of American and Australian travellers cheques to the value of approximately SBD700,000.
5	After clearing Customs, Mr. Idris went to the foreign currency exchange counter at the airport and requested the staff to change 2 US visa travellers cheques into Solomon dollars. He used a false British passport bearing a photograph of Mr. Idris, but the name of the person who had originally purchased the travellers cheques, and then countersigned the travellers cheques using that other person’s name. In this way be obtained SBD6,680.
6	Mr. and Mrs. Idris then visited two different banks that afternoon, both obtaining further Solomon dollars by the same method of false pretence.
7	Then on every successive day but Sunday, until they were apprehended the following week on Friday 17 August, the couple either continued to exchange stolen travellers cheques for Solomon dollars (or in one case attempted to do so), or exchanged the Solomon dollars thus obtained into British pounds or US dollars. This venture even included a day trip on 14 August to Auki in Malaita, where once again travellers cheques were exchanged for Solomon dollars. That was the sole purpose of the trip.
8	As a result of this criminal spree the couple obtained SBD108,059.68, some of which was then exchanged for British pounds and US dollars.
9	The grounds of the appeal are that the sentence of 4 years imprisonment was manifestly excessive, and that the sentence was disproportionately high to that received by his wife (which was 2 years imprisonment with 1 year to be suspended).
10	The argument of Mr. Wallwork relating to the alleged excessiveness of the sentence centred around the term of imprisonment received for each of the 7 offences of false pretences. For each of those seven, the learned Magistrate imposed a sentence of 4 years imprisonment, each to be served concurrently with the others. That 4 year term was then ordered to be concurrent with the 4 years imposed on the money-laundering charge.
11	Mr. Wallwork pointed out that the maximum term of imprisonment for the offence of false pretences is 5 years (s.308(a) Penal Code). Thus for each offence Mr. Idris received a sentence equivalent to 80% of the maximum. Mr. Wallwork developed the argument that a sentence of 80% of the maximum term is very much at the upper end of the scale and ought to be reserved for offences approaching the most serious in that category of offending.
12	It was submitted that for cases involving false pretences, the most serious are as a general rule those which involve a breach of trust. Further, that the type of offending committed by Mr. Idris did not involve a breach of trust and neither was it at the upper end of the scale in terms of seriousness.
13	To analyse the sentences in this way is a little artificial, in that it focuses on the sentence for each of the 7 offences separately and in isolation to each other. While it is strictly correct that for each of those offences Mr. Idris received 4 years imprisonment, because they are to be served concurrently the effect of the sentence is that the total punishment received for the 7 offences is 4 years imprisonment. In other words, the overall criminality involved in the commission of 7 separate offences of false pretences over a 6 day period has been taken into account and a total period of 4 years’ imprisonment imposed as a result.
14	Had Mr. Idris committed only one crime of false pretences, and received 4 years imprisonment for that, the submission that it was manifestly excessive would have had considerable force. However, the reality is that the learned Magistrate did not sentence Mr. Idris to 4 years imprisonment for an isolated offence, but for seven offences of the same kind.
15	While the learned Magistrate chose the method of imposing 4 years for each of the 7 offences of false pretences and making these concurrent with each other, there were other methods he could have adopted to achieve the same result. He could, for example, have identified one of those seven as the lead offence and imposed a sentence for that which reflected the overall criminality of the spree (say, for example, 4 years), and then imposed a lesser term for each of the other 6 offences, all 7 to be concurrent. This method helps preserve consistency in sentencing levels for the same type of offending. This is because only the sentence for the lead offence will reflect the overall criminality of the series of offences, whereas each of the others will reflect a sentence appropriate for that single crime only and thus be of greater precedent value in subsequent cases.
16	Another method which could have been adopted would have been to make the prison terms for each offence consecutive on each other and then reduced the overall prison term having regard to the totality principle.
17	Further, a combination of consecutive and concurrent terms could have been imposed, and then the totality principle applied if necessary.
18	The method in fact adopted by the learned Magistrate was legitimately open to him, although for reasons stated perhaps not the best option. I reiterate that the effect of the sentencing on the false pretences charges was to impose a 4 year term for the overall offending. The imposition of some consecutive sentences, however, would have enabled the Court to impose a significantly higher term if it saw fit. For all these reasons I do not accept the argument that because the maximum term for a single offence of false pretences is 5 years, and Mr. Idris received 4 years, the learned Magistrate has imposed a manifestly excessive sentence.
19	Mr. Wallwork also criticised the decision in respect of the way the learned Magistrate dealt with the money laundering charge. The Court took the view that the other charges for which Mr. Idris was sentenced captured the overall criminality of his offending, and that the money laundering charge was just another way to describe the offending. The Court stated: "Where ... the facts are already encompassed in the other charges, a money-laundering charge is just another way of describing the same matters already complained of ... . In my view in the present case the money laundering charge does not add anything to the Penal Code offences with which the first accused (Mr. Idris) was already charged ....... . In all these circumstances my view is that it would be wrong to impose any additional penalty for money laundering".
20	The criticism is that despite these findings, the Court imposed a 4 year term of imprisonment in respect of the money laundering charge.
21	I refer to the proviso to section 2 of the Penal Code, which states:
	"Provided that if a person does an act which is punishable under this Code and is also punishable under another Act, Statute or other law of any of the kinds mentioned in this section, he shall not be punished for that act both under that Act, Statute or other law and also under this Code." This is precisely the situation which faced the learned Magistrate. The same acts were punishable on the one hand by the Penal Code, and on the hand under the Money Laundering and Proceeds of Crime Act 2002.
22	The learned Magistrate chose to deal with this by imposing a 4 year term for the money laundering charge, which equated to the 4 year term for the false pretences charges, and to order that the false pretences terms of imprisonment be served concurrently with the money laundering term. In this way the 4 year sentence for money laundering did not have the effect of increasing the sentence beyond that imposed for false pretences.
23	I consider that in so doing the lower Court fell into error. The 4 year sentence for money laundering is a punishment whether or not it had the effect of increasing the overall term to be served. The fact that it is to be served concurrently with other terms does not mean that it loses its status as a punishment for obviously it is to be served along with the other terms.
24	Having found, as it did, that the money laundering charge introduced no additional facts not already the subject of charges, and involved the same acts for which the appellant was to be sentenced under the Penal Code, the proper course was for the Court not to enter a conviction against the appellant and to dismiss the money laundering charge. I refer to section 203 of the Criminal Procedure Code, enabling the Court to take this course "if it is of opinion that it is not expedient to inflict any further punishment notwithstanding that it thinks this charge against the accused is proved".
25	I add that a conviction can constitute a punishment in itself, and hence it was not appropriate to enter a conviction. Both the entering of the conviction and the imposition of a term of imprisonment on the money laundering charge were, in the circumstances, a contravention of the Penal Code. The fact that the appellant pleaded guilty to the charge is irrelevant.
26	Another ground of challenge to the sentence was that it was manifestly excessive having regard to the personal circumstances of Mr. Idris. In particular, he is isolated from his home country of South Africa, and is separated from his wife and relatively young children. There is some uncertainty over the future care and welfare of his wife and family, as his wife has been diagnosed with a serious clinical disease.
27	Reliance is also placed on the fact that Mr. Idris made full admissions to the Police and pleaded guilty at the first available opportunity.
28	Notwithstanding these circumstances, Mr. Idris was involved in serious and sustained offending over a number of days, involving substantial sums of money. As the facts disclose, the very purpose of Mr. and Mrs. Idris coming to Solomon Islands was to exchange stolen travellers cheques for Solomon dollars, and then to obtain British and American currency with those funds. They set about that task in a determined and purposeful manner, and it is fortunate that the authorities were able to apprehend them as swiftly as they did.
29	While I take into account the personal circumstances of Mr. Idris, it is relevant to note the remarks of Palmer J (as he then was) when considering family circumstances in R v Nelson Funifaka & Others (Unrep. Criminal Case No. 73 of 1996) at p.10: "While the Court empathises with these natural human emotive feelings and considerations, there is little that this Court can do. Those are matters which the accused should have taken into consideration, thought about, before embarking on their unlawful activities."
30	I do not accept that because of the personal circumstances of Mr. Idris and the fact of his cooperation with the Police and early guilty plea, the sentence was manifestly excessive.
31	It was also submitted that the sentence received by Mr. Idris was disproportionately high when compared to that received by Mrs Idris. Mrs. Idris received 2 years imprisonment on each of 11 charges of false pretences, all to be served concurrently. Twelve months of the sentence was suspended for 2 years. Because the sentence was made effective from when she was first taken into custody (17 August 2007), she was released from prison on 17 April 2008, having served 244 days. She then returned to South Africa.
32	The submission was that Mrs. Idris was intricately involved in the same offending as Mr. Idris, and her circumstances (a serious disease, young children in South Africa) either directly impacted on Mr. Idris as her husband and the father of her children or were common to both parties.
33	However, when one considers the facts upon which Mr. Idris was sentenced, it is immediately apparent that as distinct from his wife, he had a significant involvement in the planning of this fraudulent operation. He told Police that he had been given the travellers cheques and passports in South Africa by a named person and that he had supplied photographs of he and his wife to another named person in South Africa for the purposes of the false passports and in order to cash the travellers cheques. He further informed Police that the arrangement was that he send the proceeds of the transactions to the first named person in South Africa, and that Mr. Idris’ share was to be ten per cent. He further admitted that he had an idea that the travellers cheques were stolen (it was accepted that they were not stolen by Mr. Idris), and that he used false passports.
34	The facts upon which Mrs. Idris was sentenced do not suggest that she also was involved in this planning.
35	In my view Mr. Idris was bound to attract a significantly greater sentence based on his involvement in the planning of this operation. A further factor identified by the learned Magistrate, was that as distinct from Mrs. Idris, he had a conviction for fraud in South Africa dated October 2001, though it appears little if any weight was attached to this.
36	I accept that Mrs. Idris was treated leniently, given her active involvement in the offending. It is clear that the learned Magistrate adopted a merciful approach towards her, no doubt strongly influenced by the medical report showing her to have a serious disease, and perhaps to a lesser extent by the fact that she was previously of good character. The Court said: "The second accused is of previous good character. She appears to have serious health problems, details of which are contained in a medical report which was filed."
37	These mitigating circumstances apply to Mrs. Idris alone, and it does not follow that Mr. Idris should receive the same benefit.
38	For these reasons I do not accept that the disparity between the sentences amounted to an error of law.
39	In my view the sentence of 4 years imposed on Mr. Idris was well within the appropriate range for this offending.
40	However, as earlier indicated, the learned Magistrate ought to have dismissed the money laundering charge without entering a conviction. I therefore allow the appeal on this ground, and order that the conviction be vacated. I dismiss the appeal in all other respects.
41	It is necessary to re-sentence Mr. Idris. Therefore I will take the opportunity of selecting one of the offences of false pretences as the lead offence, impose a sentence for that which reflects the overall criminality involved in the commission of all 7 of the offences in that category, and then impose a concurrent sentence for each of the remaining 6 false pretences charges.
42	I select as the lead offence Count 3, relating to the exchange of stolen travellers cheques for Solomon dollars using a false passport at the airport on arrival in Honiara. This marked the start of a determined course of action involving a series of offences of a similar kind over the ensuing days.
43	The Magistrates’ Court’s decision on sentence is quashed and the following sentence imposed:
		Count 1: Count 2: Count 3: Counts 4 to 9: Count 10: Count 11:			False Declaration: $1,000; 7 days to pay; in default 3 months imprisonment Money laundering: charge dismissed without conviction Obtaining by false pretences: 4 years imprisonment Obtaining by false pretences: 2 years imprisonment on each Count, to be served concurrently Uttering an Exhausted Document: $2,500 to be paid to the Quality Inn Possession of forged documents: 3 years imprisonment

All sentences of imprisonment to be served concurrently with each other. Total: 4 years imprisonment with effect from 17 August 2007 plus $2,500 compensation.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge