Pokana v Regina [2008] SBHC 99; HCSI-CRC 116 of 2008 (14 November 2008)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Criminal Case No. 116 of 2008

BETWEEN:

TINA POKANA
Appellant

AND:

REGINA
Respondent

Date of Hearing: 1, 18 and 22 August 2008
Date of Judgment: 14 November 2008

B. Hiele and G. Brown for Appellant
R. Christensen for Crown

DECISION ON APPEAL AGAINST SENTENCE

Cameron P.J.

1. On 24 April 2008 the appellant pleaded guilty in the Central Magistrate's Court to converting a cheque to the value of SBD$ 10,000. She as sentenced that day to 6 months' imprisonment. She then spent one night in custody, and was granted bail the next day pending this appeal against sentence. She has remained on bail since.

2. The offending was serious. The appellant was employed as an account clerk by the King Solomon Hotel, and as part of her duties she drew up a cash cheque in the sum of SBD$10,000. The money was intended for a previous hotel guest.

3. The appellant was not authorised to do banking on behalf of the hotel. Despite this, on 27 December 2007 she took the cheque, went to the Westpac Bank by taxi, and feigning illness requested the taxi driver to cash the cheque, telling him that if Bank staff asked questions, he was to say "hem for transport". The cheque was cashed by the taxi driver apparently in good faith, and the appellant then received the SBD$10,000 for her own purposes. When the hotel discovered a few days later that the cheque was missing, the appellant initially denied her involvement. She was subsequently forced to admit it when identified by the taxi driver from the hotel staff line-up.

4. The main ground of appeal is that the sentence was manifestly excessive, and there is a related ground that the learned Magistrate failed to take into account mitigating factors. During the appeal it became apparent that the essential argument was that the sentence should have been a suspended prison term as the appellant was 7 months pregnant at the date of sentencing and had two other young children in her care.

5. In analysing whether the learned Magistrate's approach was correct one, I refer to the decision of the Chief Justice Sir Albert Palmer in Lulu Boinago v Regina High Court, Solomon Islands, CC 8/2008, 23 May 2008, in which the Court stated:

Persons who occupy positions of trust such as bank employee and has used that privileged and trusted position to take money from his employer or the general public, must expect an immediate custodial sentence, save in very exceptional circumstances or where the amount is small. The same approach applies to the question whether such a sentence be suspended or not".

6. In this case there has been a breach of trust by an employee who was in a privileged and trusted position, and the sum of money involved was significant. The issue, then, is whether the personal circumstances of the appellant are such as to amount to exceptional circumstances warranting a suspended custodial sentence.

7. The appellant is 27 years old, and has two children who were aged 7 and 3 at the date of sentencing. She now has a third child who was born on 19 June 2008, after the appellant had been sentenced to imprisonment and while she was on bail pending this appeal. The baby is now almost 5 months old. The appellant's new husband, who she married in June 2007, is self-employed and suffers from a mental illness.

8. At the hearing of the appeal, the Crown produced a letter from the Correctional Service of Solomon Islands to the effect that Rove Central Correctional Centre was in a position to adequately care for the well being of a female prisoner accompanied by a young child. The Court was not content to rely solely on such a letter, and asked for evidence from the Correctional Service on this point.

9. Mr. Adam Hatfield, a Correctional Manager (Advisor) of the Correctional Service, subsequently gave evidence in this appeal, and was extensively cross-examined by the appellant's counsel. From that evidence I am satisfied that a female prisoner with a baby can be properly accommodated at the prison. I am also satisfied that the systems in place at the Rove Central Correctional Centre for a female prisoner with a child, which are outlined in a Standing Order and a Policy document, are such as to ensure the interests of the child be protected.

10. I note the case of Folanto v Regina [1999] SBHC 56, where having served some 2 months of a 12 months prison term, a female prisoner who was then 7 to 8 months pregnant had the balance of her prison term suspended on the ground that "the physical environment she finds herself in by virtue of her imprisonment is unsuitable for a pregnant woman and for rearing of a small baby". However, times have moved on, and I am satisfied that the implementation of the policies relating to mother and child will ensure the interests of the child are adequately protected.

11. In Tamana v Regina [1995] SBHC 42, this Court on appeal suspended a prison term of a mother who had served part of her sentence and had a 10 months old child. That case was decided before the Correctional Service systems to which I have referred were put in place. Similarly Ashley v Regina [2006] SBHC 128 was decided before there were policies relating to a mother and a child. I note also in that case the prisoner was not pregnant with the child in question at the time of the offending.

12. I add that in this case, at the time of the offending, the appellant would have been about 4 months pregnant and so would have been well aware of that fact when she committed the crime.

13. Undoubtedly, the whole of the appellant's family will be adversely affected if the appellant has to serve a prison term. However, in my view the circumstances are not such that warrant a suspended sentence.

14.In examining the sentencing notes, it is apparent that the learned Magistrate did take into account the fact of the pregnancy of the appellant. In referring to the necessity to imprison in cases of breaches of trust by employees, the learned Magistrate dealt with the fact of the appellant's pregnancy in stating:

"The fat that a person is pregnant does not, in my view, affect that principle but it may afford grounds for lessening the term".

15. The task of the learned Magistrate was to balance the seriousness of the offending and the need to deter others who may be of like mind against the mitigating factors, which not only included the appellant's personal family circumstances but also the fact that she pleaded guilty, that she had no previous convictions, and that she repaid the money. The sentencing notes make it clear that she did so.

16. I have considered the appropriate range of prison terms for this type of offending. The case of Foli v Regina, High Court of Solomon Islands CC 51/2004, 3 May 2004, examines various authorities and notes that in those cases involving fraudulent conversation, the sentencing ranged from 5 months to 2 years. I am satisfied that the 6 month term imposed in the present case was well within the appropriate range for this type of offending, that it reflected the various mitigating factors including the appellant's pregnancy, and was a proper exercise of discretion by the learned Magistrate.

17.The appeal is dismissed, and the appellant is ordered to commence serving the balance of the term of imprisonment forthwith.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge