Stephenson v Regina [2009] SBHC 64; HCSI-CRC 49 of 2007 (30 October 2009)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 49 of 2007

PIRINGISAU JOHN STEPHENSON

V

REGINA

Date of Hearing: 21st October 2009
Date of Judgment: 30th October 2009

For Appellant: Mr. B. Titiulu
For Respondent: Ms. R. Olutimayin

JUDGMENT

Naqiolevu J:

The appellant appeals against the decision of the Magistrate Court of the 26th of January 2007 where he was ordered to serve a prison term of 18 months imprisonment.

1. The grounds of appeal are that the 18 months imprisonment is manifestly excessive. The disparity in the sentence in this case and that of a co-accused for the same offence cannot be ignored. The appellant received 18 months imprisonment while the Principle offenders received six months wholly suspended for 12 months.

2. Counsel submit the disparity in the sentence is objectionable, apart from the guilty plea, the same set of facts apply to both the co-accused and the appellant.

3. Counsel submit the authority of R-v-Kemakeza (^[1]) where Chief Justice Palmer cautioned at paragraph 23.1 of his judgment, at page 9, that:

"One of the important roles of the courts in imposing sentences between co-defendants, or persons charged conjointly, is to ensure that whatever sentence is imposed are consistent, fair uniform and just in all circumstances of the case. Had the Respondent been charged at the same time with the other four Defendants, most likely he would have been tried and dealt with together with them. Normally this is the case where an accused has been charged for counseling and procuring. He would have arraigned in the same way and at the same time as the other accuseds unless he had asked for a separate trial. But the fact that has not happened in this case does not in any way mean a court should go off in a tangent and impose a sentence that is wholly inappropriate. In such a case, the court must appraise itself properly of the way in which the other defendants have been dealt with so that an appropriate sentence is imposed; in other words so that any disparity of sentences are avoided"

4. Counsel assert that at arriving at an appropriate sentence the court should bear in mind the sentence imposed on the co- accused, and the need to be fair on persons charged and convicted, whether by their own plea or after trial, for the same offence and upon the same facts.

Respondent Submission

5. The respondent had provided a written submission addressing both the appellant’s appeal on conviction and sentence. However given the appellant had withdrawn the appeal on conviction. The respondent did not respond on the issue of conviction and accept however the disparity maybe too wide and the court is invited to consider the question of disparity.

6. Counsel assert there is good reason for the disparity in the sentence of the appellant and co-accused. The appellant culpability is more than the co-accused. He was the instigator of the offence and if he had not counseled the co-accused the offence would not have been committed.

7. The disparity was justified because the co-accused had pleaded guilty and the appellant did not. It is a basic sentencing principle that credit must be given for a guilty plea. Counsel cited the authority of John Gerea –v- Regina(^[2]) where Palmer CJ considered the effect of a guilty plea and said, "the court encourages plea of guilty by knocking off the sentence which would have been imposed if there had not been a plea of guilty".

8. Counsel submit that having accepted the disparity is justified, the disparity appears to be too wide. The court in the circumstances is invited to consider the question of disparity in favour of the appellant. The shortening of the gap will be fair and equitable in all circumstances of the case.

9. The respondent further submit if the appellant who offered to repay the money the subject of the charge, the crown would not object to the court considering ordering a suspension of the sentence.

Restitution

10. The court adjourned the proceeding to enable the appellant to repay the funds to the government, and after citing the receipt paid to Treasury in the sum of five thousand nine hundred and sixty nine dollars and forty six cents. ($5969.46) dated the 26th October 2009 tendered to court.

Disparity in Sentencing

11. The court is of the view that there is clearly disparity in the sentence meted out to the appellant and the co-accused. The court consider the Learned Magistrate has not properly consider the exercise of his discretion in ordering an appropriate sentence.

12. The court having said that, is of the view that the Learned Magistrate was wrong in ordering a Suspended Sentence which is clearly outside the provision of Section 44 (1) of the Penal Code, which specifies that the order shall not be "less than one year" or "more than two years".

Section 44 (1)

Subject to the provisions of subsections (2) and (3) of this section, a court which passes a sentence of imprisonment on any offender for a term not more than two years for any offence, may order -

(a) that the sentence shall not take effect during a period specified in the order; or

(b) that after the offender has served part of the sentence in prison, the remainder of the sentence shall not take effect during a period specified in the order, unless during the period specified in the order, the offender commits another offence punishable with imprisonment and a court thereafter orders under section 45 of that the original sentence shall take effect:

Provided, that the period specified in the order shall not be less than one year or more than two years.

13. The court is of the view in the circumstance it cannot consider a sentence in parity with the sentence meted out to the co-accused, given it is wrong in law.

The court allow the appeal and vary the order of the Magistrate Court of the 26th of January 2007 to reflect the sentence of 18 months imprisonment is to be suspended for two years.

ORDER

1. Appeal Allowed.

2. Vary the sentence of the Magistrate Court of the 26th of January 2007.

3. Order 18 months imprisonment is suspended for 2 years.

THE COURT

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^[1] HCSI–CRC 467 of 2007
^[2] [2005] SBHC, 34