Talifai v Regina [2011] SBHC 16; HCSI-CRC 85 of 2010 (30 March 2011)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 85 of 2010

BEN DERESA TALIFAI

V

REGINA

HEARING: 28 March 2011
SENTENCE: 30 March 2011

H. Kausimae for the Crown
S. Barlow and Ito'o for the Appellant

Palmer CJ.

The appellant was convicted on his guilty plea to both charges of robbery and larceny from a dwelling house on 25th February 2010 and sentenced to 4 years and 1 year respectively for both offences with effect from 24 June 2009. Both sentences were ordered by the learned Magistrate to be served cumulatively and so the total sentence was 5 years imprisonment.

Three grounds of appeal have been filed against the learned Magistrate's orders. First, that the presiding Magistrate erred in law by failing to take into proper account the guilty plea entered. Secondly, he failed to take proper account of the principle of totality in sentencing the defendant and thirdly, the sentence was manifestly excessive in the circumstances.

The defendant had entered a guilty plea two days before the start of his trial date. The learned Magistrate declined to give any discount for the guilty plea on the basis that while he had made a voluntary statement to the police admitting his involvement in the offence he decided not to enter a guilty plea until the door knock of the trial.

The general approach to be taken when a guilty plea is made is to consider the value of the plea and then the weight to be attached to it. In this instance, the learned Magistrate erred when he failed to take into account the value of the guilty plea when he concluded that the appellant should have entered a guilty plea from the outset because of his admission in his statement to the police and by delaying that to the door knock of the trial, should not be given any benefit.

When the value of his guilty plea, given three days before the trial date is taken into account, it is clear some benefit had been derived. Court time and resources had been saved. The court and all those involved in the case have been freed to attend to other matters. There was no suggestion that he was engaged in any tactical game or delaying tactic. Witnesses no longer needed to be summoned and required to attend court; the victims in particular were no longer required to testify and to re-live what would have been a distressing and frightening time for them.

Secondly, it is consistent with remorse on his part reflected in his admissions in his police statement and sending a letter of apology to the victims of the crime committed.

In the light of that assessment, it would be possible to place some weight to the benefit of that guilty plea. While the full benefit of 25% may not be considered to be appropriate, it would not be unreasonable to consider a discount of 15%-20% in this instance.

The second ground relied on is that the learned Magistrate failed to take into account the totality principle when ordering that the two sentence to be cumulative. The net effect is that the appellant was required to serve a total sentence of five years.

Where two or more offences have been committed but are being considered together after the court has fixed what is the appropriate sentence for each offence, it needs to stand back and look at the total. It needs to consider whether it is substantially over the normal sentence appropriate to the most serious offence for which he is being sentenced. If it is, then it should be reduced to a level that is "just and appropriate". As well, if the total sentence would amount to a crushing penalty the court should also consider a reduction of the total.

In his judgement the learned Magistrate noted that the two offences were separate and distinct in time and place and decided that they should run cumulatively. He may have stepped back and considered the totality effect bearing in mind that he did take into account the mitigating factors and aggravating factors of each offence before settling on the total sentence but there is no record that he did so.

A number of comparative sentences have been provided for my consideration in this appeal by learned Counsel Mr. Barlow on robbery offences which showed a range of around 3 – 4 years. While I am satisfied he did take into account all the relevant mitigating and aggravating factors, had he stepped back and considered the totality principle he would not have failed to realise that the sentence of five years in the circumstances of the case was inappropriately harsh. The effect is the imposition of a sentence that is manifestly excessive in the circumstances.

I have been referred to a letter of reference from an Adviser working with the Correctional Services in which he provides a positive account of the improvements, changes and behaviour of the appellant in prison. He has been making use of his time in prison by utilising his skill as a painter and assisting young people in the Juvenile Center. This further demonstrates that the appellant is remorseful, has learnt his lesson while in prison and realised that there is more to life than a life of crime. I do take that into account as well in re-sentencing the appellant.

I am satisfied a discount of 20% should be given for the guilty plea and that the two sentences should be made to run concurrently. The sentence of 4 years is quashed and substituted with a sentence of 38 months. The order for the sentence of one year to be cumulative is also quashed and made to run concurrent. He will be required therefore to serve only 38 months.

Orders of the Court:

1. Allow appeal.
2. Quash sentence of 4 years and substitute with a sentence of 38 months.
3. Quash order to have the sentence of 1 year to run cumulative and substitute order for it to run concurrently.
4. Total sentence to be served therefore is 38 months.
   

The Court.