Kemahaku v Regina [2011] SBHC 107; HCSI-CRC 103 of 2011 (7 October 2011)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 103 of 2011

ARTHUR KEMAHAKU

-V-

REGINA

HEARING: 5 OCTOBER 2011
RULING: 7 OCTOBER 2011

R. Cavanagh and W. Ghemu for the Applicant
A. Driu (Ms.) for the Respondent

Palmer CJ.

The applicant, Arthur Kemahaku was charged and convicted in the Magistrates' Court on a charge of assault causing actual bodily harm contrary to section 245 of the Penal Code. The brief facts were that he intervened in a fight between his son and the victim and struck the victim on the left side of his neck with an aluminium pipe about one metre in length resulting in the victim falling down unconscious and sustaining some injury to his neck. The presiding Magistrate imposed a sentence of 9 months imprisonment but suspended it upon the Applicant entering into a bond in the sum of $500.00 to be of good behaviour for a period of 18 months.

The prosecution appealed the sentence on the ground that the presiding Magistrate erred in imposing a suspended sentence contrary to section 44(2) of the Penal Code which provided that the custodial sentence should not be suspended where a weapon was used. There is no issue that the pipe used was a weapon.

The matter came before the High Court on 27 June 2011. In his ruling on the appeal Regina v. Arthur Kemahaku [1] delivered on the next day, his Lordship Apaniai J. quashed the order suspending the sentence as erroneous. He then proceeded to consider submissions made by Counsel for the Applicant, to have the sentence of 9 months also quashed and sent back to the Magistrates' Court for re-sentence or to re-sentence the Applicant based on the reasons set out in the written submissions of Counsel Aupa'i. The learned Judge rejected those submissions and refused to interfere with the sentence of 9 months imposed by the Magistrates' Court.

The Applicant appeals that order of the Court asserting on two grounds that:

(i) he erred by finding that he was unable to remit the case to the Magistrates' Court for re-sentence; and

(ii) he erred in finding that he was unable to substitute another sentence for the sentence imposed by the Magistrates' Court.

The finding of the learned Judge is contained in paragraphs 11 and 12 of his judgment, at page 2 and 3 respectively:

"11. However, the matter does not end here. Counsel for the Respondent has urged me to set aside the magistrates' order and to send the case back to the magistrate for appropriate sentencing or, if I am minded not to send the case back to the magistrate, that I impose a non-custodial sentence on the Respondent for the reasons set out in his written submission.

12. In my judgement, I cannot send the case back to the magistrate nor can I substitute another sentence for the 9 months sentence imposed by the magistrate. No challenge has been made either by the Appellant or the Respondent to the 9 months sentence imposed by the magistrate and therefore that sentence should stand. The only challenge is in relation to the suspension of that sentence."

To the extent that the learned Judge found that no challenge had been made to the 9 months sentence imposed by the magistrate and that the only challenge was in relation to the suspension of that sentence, I concur that a mistake was made. However, in the next paragraph the learned Judge did apply his mind to the very issue being challenged; that of the appropriateness of the sentence of 9 months imposed. I quote:

"13. The magistrate in the present case has imposed a sentence of 9 months imprisonment after hearing plea in mitigation. He was in a better position than me to make that decision. There is no sufficient material before me to show that the sentence is outside the normal range of sentences for that type of offence. Accordingly, the sentence of 9 months must remain and must take effect immediately in accordance with the principle in the Puia Case."

The appeal was accordingly dismissed.

I have gone to some extent to summarise the decision of the learned Judge because if bail is to be granted after conviction and pending appeal, exceptional circumstances need to be shown[2]. In Watton[3], the English Court of Appeal, further expounded on what that could possibly be by pointing out that bail can be granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard. This was adopted by this Court in Susana v. Tamana (ibid).

Ms. Driu objects to bail on the ground that no exceptional circumstances had been shown which would justify the release of the applicant pending appeal. She says that the appeal is basically without merit in that what is being appealed against is the severity of sentence, which was well within the tariff which the court was entitled to impose. She says that the Applicant had failed to demonstrate that the judge committed any error of law or applied any wrong principle in the decision taken.

While I recognise that the ultimate decision will be made by the Court of Appeal, as part of my judicial duties in deciding this bail application and ascertaining whether there are indeed issues of law and good prospects of success in the Court of Appeal, I couldn't agree more with submissions of learned Counsel. While the Judge was mistaken in holding that there was no challenge to the severity of the sentence through the submissions of defence Counsel, he did in paragraph 13 of his judgement apply his mind to the matter before him and ruled that there was nothing in them to satisfy him that he should interfere with the sentence. It is clear from the court records that counsel for the Applicant had provided the court with written submissions as to why the matter should be re-sent to the Magistrates' Court for re-sentencing or in the alternative, that he re-consider the sentence of 9 months imprisonment. In fact counsel for the defence had urged the court to impose a non-custodial sentence. The Judge therefore was cognisant of the issues and arguments of counsel when he ultimately ruled that the material before him was insufficient to warrant him intervening with that sentence of imprisonment. Ms. Driu is correct in submitting in her application that the appeal is without merit and the chances of success so low that the risk of sentence having been served becomes irrelevant or non-existent.

I am not satisfied that exceptional circumstances had been shown and that bail should be refused.

Orders of the Court:

- Application for bail refused.

The Court.

---

^[1] HCSI-CRC 103 of 2011 (28 June 2011)
^[2] Chamberlain v. R (No.1) [1983] HCA 13; 1983 153 CLR 514 (2 May 1983); referred to by Scutt JA in Matai v. State Criminal Appeal 0038 of 2008; and applied in Brian Singh v. State Criminal Appeal No. AAU0083 of 2010. See also Hayes v. The Queen (1974) 48 ALJR 455, at 591 per Mason J. (Australian High Court); Re Kulari [1978] VicRp 29; (1978) VR 276 (Victoria Supreme Court); R. v. Byrne (1937)QWN 30 (Queensland Supreme Court); Susana Tamana v. R. CRC 15 of 1995 (High Court of Solomon Islands).
^[3] (1978) 68 Cr AppR 293, at 296-297.