Regina v Tebolo [2010] SBHC 27; HCSI-CRC 217 of 2009 (18 June 2010)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 217 of 2009

REGINA

V

JOHN TEBOLO

Date of Hearing: 28th May 2010
Date of Ruling: 18th June 2010

For Appellant: Ms. M Bird
For Respondent: Mr. M. Coates

APPEAL

Naqiolevu J:

1. The Appellant was convicted of the offence of Official Corruption on the 15th of June 2009 at the Central Magistrate Court and sentenced to two and half years imprisonment on each count to be served concurrently with each count.

Grounds of Appeal

2. The Appellant appealed on the following grounds:

1. The sentence in principle are proper but upon the facts of the case are excessive, in that in relation to count 1, the sum of $500 was received by the appellant. In count 2 the receipt of the betel nut valued at $30 and count 3 the sum of $5000 was not encashed by the appellant because he was arrested by the police. In effect the appellant had only directly benefited with the total amount of $530.

3. In Solomon Islands the use and consumption of betel nut is part of their norm and custom in relation to count 2. When the appellant was asked what he wanted, he stated, just betel nut and in custom there is no connotation attached as to arrest to a criminal intent being present.

4. The fact that the appellant had not asked for any of the money and or items that he was charged with must be noted at the outset. He was the recipient and according to the evidence during the trial the so-called victim was the person who offered the money and items to the appellant.

5. The appellant concedes that the offence of official corruption is serious in nature however the reasons advanced would substantially mitigate a lesser sentence than the one imposed below.

Crown Submission

6. Crown counsel submit in response that the appellants counsel acknowledge that there is no error in law in the sentencing of the appellant. However claims that the sentence imposed was excessive. The question on a sentence appeal is not if the court would have imposed a different sentence but whether there was an error in the sentencing discretion of the court below.

7. The court should not interfere unless manifestly excessive or inadequate. It is submitted that there was no error in this matter and the sentence is not manifestly excessive. The offence is serious that strike at the heart of good governance and not only is it corrupt conduct but it has the potential to depose the country of valuable resource.

8. The appellant has abused his position within the Attorney General’s Chambers to corruptly receive money. The appellant has also damaged the reputation of the legal profession in this country.

Corruption is a problem within the Solomon Islands that must be addressed, great efforts are being made to address the issue but it also require the support of the courts when sentencing offenders to emphasize that they will not tolerate corruption.

Principles in Appeal

9. The court has previously and will say it again that it will not interfere with the exercise of the discretion of the Lower Court in an appeal unless the court has erred in the sentencing principle. The principle was made succinctly clear by the Court of Appeal in the case of R-v-DPP([1]) where the court said,

"A Court of Appeal will not interfere with the trial Judge discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because for instance, the Judge has acted on a wrong principle or has clearly over overstated, or understated or overreacted or misunderstood some salient features of the evidence".

10. The court is of the view the Learned Magistrate whilst considered that a custodial sentence was appropriate and imposed a 2½ years sentence. Further has considered a comparative analysis of case of similar nature in this jurisdiction and throughout the Pacific.

11. The court consider however as the offence arose out of one single transaction and no money was exchanged given the appellant was arrested and the charge laid. The Learned Magistrate should have taken this salient features of the evidence into consideration in the exercise of the sentencing discretion. Furthermore whilst, the court does not consider offence of this nature by a member of the legal profession and public servant. The lower court might have taken into consideration the mitigating circumstances his favour and consider an appropriate sentence.

12. The court is of the view that a short sharp custodial sentence would have been appropriate to meet the end of justice. The conviction and imposition of a custodial sentence of a person of his standing has far greater effect than any greater sentence. I adopt the principle of law enunciating by Palmer CJ in the case of R-v-Sir Allan Kemakeza([2]) where His Lordship said at P10.

"I do recongise however that in his position, the effect of such a sentence on him will be more acutely felt than say an ordinary member in society".

13. The court is of the view that a sentence of two years is appropriate and partially suspended would send a message as a deterrent to likelihood person.

14. The court has taken into consideration the seriousness of the offence and the nature of the offence. The appellant has lost his career and standing in the community. The court has considered the appellants mitigating circumstance his family who have suffered because of his folly. The appellant apart from his five children has had an addition to the family since his incarceration and may not have the opportunity to enjoy this new life in the early stages.

15. The court consider that there is a likelihood of his rehabilitation if released to his family and the support that may follow. The court having taken into consideration the appellant has spent a period of twelve (12) months in prison to reflect two years imprisonment suspended for 2 years. The court consider justice must always be tempered with mercy always.

The court in all circumstance consider vary the lower courts order and order a sentence of 2½ years be varied to 2 years imprisonment suspended for 2 years.

ORDER

The immediate release of the appellant from custody.

THE COURT

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<sup>[1]

[2]</sup> [2008] SBHC 411