Regina v Junior [2011] SBHC 44; HC-SI CRC 331 of 2005, 454 & 455 of 2007 (30 June 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J)

Criminal Case No: 331 of 2005, 454 and 455 of 2007.

REGINA

V

1. MORRIS BOLAMI JUNIOR
2. JOHN LEINGA.

Date of Sentence Submissions: 2nd June, 2011.

Date of Sentence: 30th June, 2011

For the Crown: Mr Barry and Mrs Taeburi
For Prisoner Bolami: Mr Nori
For Prisoner Leinga: Ms Waqavonovono

SENTENCE

Faukona J: Both prisoners were convicted by this Court on 4th May 2011 on the charges of conspiracy to defeat the course of justice contrary to section 116 (a) of the Penal Code and Perjury contrary to section 102(1) of the Penal Code. Having convicted both accused, what remain upon this Court is to consider an appropriate sentence for the offences.

2. The two criminal offences emanates from a murder incident that occurred on 11th October 2001; of which prisoner Bolami has been convicted of murder and has been dealt with accordingly.

3. Following the murder incident, both prisoners were charged for conspiring on 12th October 2001 to falsely implicate John Tana in the murder of Andrew Nieda. The act of conspiracy and deception hatched on 25th August 2003 when both accused gave material evidence in a judicial proceeding in the High Court at Lata, which they knew to be false or did not belief to be true; that John Tana killed Nieda with a short gun rifle. Upon that evidence together with other evidence from other witnesses, John Tana was convicted and subsequently gaoled for life.

4. The finding and conviction by that Court was based on the deceptive premeditated evidence intended to achieve the result. Now the two prisoners are found to be the architectures and conspirators of the result. Their collaborated act of conspiracy and deception now the subject of an appropriate sentence to impose herein.

Prisoner Morris Bolami Junior.

5. Mr Nori's submission on behalf of Bolami is demise on the fact that his client has been convicted of murder, and the mandatory sentence statutorily required has been imposed. Whilst the Court has broad discretionary power in sentencing, it must be exercised to allow some leverage to arrive at a total sentence for other offences committed in conjunction with murder.

6. Mr Nori continues that murder charge is mandatory and attracts life imprisonment. Man has one and a single life and not multiple. So that where a person has already sentenced to life imprisonment in the same proceedings, the appropriate sentence is suspended sentence. In such circumstances past behaviour, status, education, age, employment is irrelevant.

7. Mr Barry for the Crown argues otherwise. He submits it is incumbent on the Court as a matter of law to pass an appropriate and proportionate sentence on Bolami for the offences of conspiracy and perjury. It is incorrect to propose to Court to impose a suspended sentence on other counts simply because Bolami is serving life imprisonment for murder. Court needs to consider his criminality in relation to other counts as well. He submits that suspended sentence is inappropriate for relevant reasons. The simple reason is that the Court is obliged to deal with matters and concluded properly. Secondly if the murder charge goes to appeal and Bolami is acquitted by the Court of Appeal, what remains is a sentence based on nothing but suspended sentence instead of life.

8. I noted Mr Nori's submission is quite technical in nature. It is one which can be perceived as arriving at the same conclusion through another route. Noted as well that Ms Waqavonovono has not propose a suspended sentence for her client Leinga, but a short and sharp imprisonment term the least.

9. With the variance of approach the Court is obliged to consider the nature of criminality in relation to the two counts and to consider a sentence that is fair and just to both prisoners. That is perhaps the thrust of the Crown submission that Court is obliged to deal with all the matters and conclude properly. In other words the Court has to consider the mitigating and the aggravating factors before arriving at an appropriate sentence proportionated to the gravity of offences.

10. In addition Mr Barry has submitted an important point; that should the murder charge is acquitted on appeal, then Bolami will walkaway merely with a suspended sentence. That may be viewed as disproportionate if the sentence imposed on Leinga differs. As I have said earlier that, the Court must strive to ensure that the sentence is appropriate and equitably applies to both prisoners.

11. It is not in the best interest of justice to opt for a short cut process though conclusion may have been the same. The Court is obliged to consider all the relevant facts before deciding on the appropriate sentence to impose.

Accused Leinga.

Mitigating Factors.

12. Counsel for accused Leinga has submitted a number of mitigating factors. They are usual factors which the Court will always consider in determining an appropriate sentence.

13. From the submissions I noted that Leinga was adopted by an unnamed family who lived at Bamoi village, Santa Cruz. His adopted parents would undoubtedly being members of the Bolami family. He was caught up and embroidered into a long outstanding family feud between Namoa family of Nila village and Bolami family living at Bamoi village. He may probably had no option to avoid as the feud perhaps included his adopted parents. And this outstanding family feud had occurred both in the Reef Islands and at Lord Howe Islands in Santa Cruz.

14. Also noted the accused had formal education up to form 3, at least an average educational level in Solomon Islands. After leaving School he did not engage in any formal employment until he came to Honiara in 2002. Before he was remanded in custody he worked as a labourer in building sites, whichever company employed him was not named.

15. At the time of committing the first offence in October 2001 the accused was 19 years of age, and 21 years at the time of committing the second offence in 2003. The accused Counsel refer to the case of Bati V DPP([1]) which Court emphasize that any sentence impose on offenders under 21 years, where imprisonment is eminent will considerably be shorter than would be awarded to a person of mature age for the same offence.

16. However, the Court of Appeal acknowledges that the mitigating effect of youth does not mean that long sentence is necessarily wrong when imposed on offenders below the age of 21.

17. Emerge from the above case is some guidelines but does not absorb the discretionary power of the Court to exercise in a particular circumstance of the case. Neither upholds a view in the alternative but allowing for discretionary power to be exercised freely.

18. From the submissions Leinga has never been in trouble prior or after being charged in this case. He is a person of good character and has not been in trouble with Police.

19. The Court has taken account of the mitigating factors and will balance against the weight of the aggravating factors.

Aggravating Factors.

20. Mr Barry for the Crown submits that conspiracy is one of the most serious offences. It strikes at the heart of the criminal justice system - see R V Mitchel ([2]). Its nature is to falsely accuse someone of murder to protect the identity of the real killer. In this case to blame or accused John Tana whilst concealing accused Bolami whom the Court has convicted for murder of Nieda.

21. The length of time the deception continued was two years, of which at the end thereof produced a false result. John Tana was arrested, remanded in custody and ultimately convicted of murder he did not commit. He was sentenced for life imprisonment and served more than a year before he was released.

22. The offence of conspiracy to pervert the course of justice was an intentional one. It was architectured with fabrication to implicate Tana for the offence he did not commit.

23. The fact that the original charge (murder) in relation to which perjury was committed means the sentence should be proportionally higher. See R V Cunningham([3]).

24. The serious of the consequences of perjury namely false conviction of Tana for murder.

25. There is absence of any evidence of remorse from either accused.

26. There is need for general deterrence for offences of this type. It is important offences of this kind undermine the criminal justice system in Solomon Islands.

27. From personal analysis of mitigating and aggravating features, it appears that the scale is tipped to the aggravating factors. There are two mitigating factors; that the prisoner has no prior conviction and age. Others are historical background, education level and perhaps casual employment. The issue of delay which categorises as mitigating factor is dealt with separately. Having considered the mitigating and aggravating factors and the circumstances that surround this case the appropriate sentence deserve is immediate custodial sentence. Reasons for this conclusion will be elaborated later.

The Issue of Delay

28. Delay is a well establish mitigating factor, but has to be properly taken into account when considering the appropriate sentence. The issue of delay acquire its root from section 10 (1) of the constitution which provides that any person charge with criminal offence be afforded a fair trial within reasonable time. However, in Runikera V DPP([4]) His Lordship Ward CJ stated that delay affects the sentence ... [because] it increases the anxiety of the accused man, who has it hanging over him for that time. This will only apply from the time of discovery of the offence in any delay, before that, is entirely in the hands of the offender.

29. In that case the Court attempt, as an initial approach to justify where unreasonableness should commence.

30. In applying the case of Runikera V DPP([5]), Palmer CJ in R V Mana([6]) stated that a Court must consider, whatever the cause, whether the delay was unreasonable. What is unreasonable is a question of fact depending on each individual case. Not only that but any delay has to have reasonable explanation given.

31. It is accepted that any unreasonable or unexplained delay may have the effect of reducing a custodial sentence. In the case of Dalo V Regina([7]) Ward CJ described 3 years delay between offence and trial as extreme delay. In Kyio V Regina([8]), Palmer CJ (on appeal) describe 5 years delay as substantial delay and reduced a sentence of 5 years by 3 years. In Foli V Regina([9]), Palmer CJ, on appeal, described 5 years delay as excessive and unreasonable. His Lordship reduced the sentence giving credit to delay and suspended part of the sentence.

32. In Regina V Moula([10]), an arson case with 2 years delay. Palmer CJ ordered a sentence of 3 years be reduced to 2 years because of the delay factor. It was further reduced to suspended sentence. In Selwyn V Regina([11]), Muria J described 2½ years delay as substantial delay in prosecution which warrant mitigation of the sentence imposed. In Regina V Oge([12]), Kabui J described 5 years delay as inordinate delay and describe things had changed over the 5 years delay. Imprisonment would deprive him of all he had gained and achieved in his life over the time. The entire term was suspended. In Sosopu V Regina([13]), Palmer CJ considered the 16 months delay and reduce the sentence to 3 months to be served.

33. Counsel for Leinga describes delay in this case as extraordinary. She submits that the offence of conspiracy occurred some 10 years ago in August 2003. She agrees that the accused cannot benefit from any delay in the period before the offences were discovered but he is not liable for long delay after investigations commenced in 2004.

34. Crown Counsel argued that this case was not reported to Police until discovered in late 2003 when some information was received by Police suggesting Tana had been wrongly convicted on 5th September 2003. In 2004 Police began formal investigations. All investigation were completed by 2007, this include investigations into other related matters that are still pending. Murder was the original offence in this case.

35. Prisoner Leinga was arrested and charged with perjury on 5th July 2005. The question whether he was also charged on the same date for conspiracy is not disclosed. The Crown Counsel submits that such investigation would be time consuming given the location and nature of the inquiry namely someone had already been convicted. He concluded that it has not been hanging over anyone's head to the same degree that it would have if the Police had known of it in 2001. There is no delay in prosecuting this case. The delay was caused by normal Court process. In all circumstances there has been no unreasonable delay.

36. To ascertain whether there is an element of delay so as to ascribe as extra ordinary delay, it is considered necessary to outline the events led up to the prosecution of this case. Before anything, it is a well establish law in this country expounded in Runikera V DPP([14]), that delay increases anxiety and hanging over on accused, and only apply from the time of discovery of the offence, any delay before that is entirely in the hands of the offender.

37. It is not in issue that the offences of conspiracy was committed on 11th October 2001 and perjury on 25th August 2003. This followed the murder incident on 11/10/2001. The offences were discovered towards the end of 2003 when some information was received by Police that John Tana was wrongly convicted of murdering Andrew Nieda. Formal investigations were commenced at the beginning of 2004. It would appear the first two years after the offences were allegedly committed could rightly be said to be in the hands of the two prisoners.

38. Prisoner Leinga was charged for the offences on 5th July 2007 and his PI was conducted on 7th November 2007. Prisoner Bolami was charged for conspiracy on 14th September 2005 and his PI was conducted on 31st October 2007. He was charged for perjury on 26th February 2005 and the PI for that offence was conducted on 20th June 2005. It appears that by 7th November 2007 all investigations and PI had been completed. It took 3 years and 9 months to accomplish such task. Is that what we could term as delay, in particular where murder allegation was the major offence? And then the filing of information on 25th July 2008 which is the beginning of the High Court processes, which eventually paved the way for a trial commencing 24th April 2009. I do not seem to perceive if there is any delay at all. Delay that may have been experienced is not as such as to describe as extraordinary or unreasonable but normal in the court process. Even if there is some element of delay they are minimal in nature. I noted that this is a full investigation into the allegation of murder, conspiracy and perjury. And time taken for investigation and prosecution of the charges are reasonable in normal circumstances.

Concurrent or Consecutive sentences.

39. Section 9(1) of the Criminal Procedure Court empowers the court to order such punishments when consisting of imprisonment to commence the one after the expiration of the other, or directs that such punishment shall run concurrently.

40. The general rule is that separate and consecutive sentences should be passed for separate offences. However, there are two modification expounded in Bade V Regina([15]) and adopted in Angitalo V Regina[[16]]. Firstly, that where a number of offences arise out of same single transaction and cause harm to the same person there may be grounds for concurrent sentence. Secondly where the aggregate of sentences would, if they are consecutive, amount to a total that is inappropriate for each offence, it should stand back and look at the total. If that is just and appropriate. Equally if the total sentence be a crushing penalty, the court should consider a reduction of the total. Likewise if the total is too high it is better to achieve a reduction by making some or all concurrent rather than to reduce the length of the individual sentence whilst leaving them consecutive.

41. In this case we are dealing with two offences. The charge of conspiracy was committed in 2001, whilst perjury in 2003. Counsel for Leinga argued that both offences arises out of the same transaction although occurring at different times, hence they are related to one transaction, that is, false accusation of John Tana in the murder of Andrew Nieda. She further submits that should the Court refuse to accept the single transaction test, the Court must consider the principle of totality.

42. The two tests have been well established in Bade V Regina([17]) and Angitalo V Regina([18]) which has been outline or paragraph 32 above. And counsels have equally referred to.

43. However, Mr Barry further submits that the fundamental underlying principle is that a sentence should reflect the true criminality involved. In this case the two offences are very serious in them and were committed over two years apart.

44. The crucial question is whether the offences of conspiracy and perjury arise out of the same single transaction. What is the actual single transaction? In this case it is the act of murder. By committing the act of murder is it the case that the two offences arise in the single transaction of murder. I do not think so. The second crucial question is if the two offences arises out of the same single transaction do they cause harm to the same person; definitely not. The prime victim in this case is the late Andrew Nieda. The two offences cause no harm to the same victim of the murder act. Therefore they are totally separate offences. In fact the victim of the two offences is John Tana. In reality the two offences do connect to the act of murder, but committed after the act of murder and were separated over two years apart. Having said that, it is considered appropriate that consecutive sentences should be imposed for these two separate offences.

Comparative Sentence.

45. The offences of conspiracy to pervert the course of justice and perjury are not prevalent offences in this country. So often they are not easily brought to justice or even easy to prove. However once convicted the penalty should be proportionally higher. The reason for this is obvious. I will expound on this later. In all the cases refer to by Counsels except Solomon Islands case, carry imprisonment term. In fact the Magistrates Court suspended a two year term of for two years. This Court is not bound by that decision, but has taken cognisance of other cases as guidelines.

46. It has long been an accepted principle that no two cases are the same in nature and feature. Each case must be considered according to its own facts and circumstances. There are many factors to be considered. At the same time there is no mathematical formula so that in its application will get the same result. However the Courts have consistently recognised the assistance provided by comparable cases as a guideline.

47. In the case of Sau V Regina([19]) Daly CJ stated;

"... Previous sentences may demonstrate principle or parameters of sentence; but they should not be used as binding precedents to reach a sentence in a particular case"

48. Again in the case of Magu V Regina([20]) the Court of Appeal stated:

"... in considering the question of appropriate sentence for a convicted person the Court should have in mind that, notwithstanding the fact a disproportionately low sentence in one case is not ground for reducing an otherwise correct sentence in another case, a sentence should not be heavy and out of proportion with a majority of sentences in comparable cases".

49. Counsel for Leinga refers to number of cases which deal with perjury. I'm afraid I could not account the Solomon Islands Magistrates Court case for the very reason I stated earlier. Some of the cases are Wati V Regina([21]); after a plea of guilty the Fiji Supreme Court confirmed Nine (9) months imprisonment. The Appellant admitted having lied on oath that she was absent from the country during her earlier trial for fraudulent conversion. In Regina V Permel[[22]], on appeal a 9 months custodial sentence was imposed. In this case Appellant falsely swore that he was not the driver that the Police did not book him and that he did not receive a notice to attend Court and did not double park.

50. In Regina V Demaine([23]) 2 years imprisonment was imposed on an accused who pleaded not guilty to driving whilst disqualified and called evidence to show he was not the driver. When charged with perjury he admitted the lies. In R V Davis ([24]) the father of two sons convicted in the Magistrates court falsely said in mitigation that his sons were in regular employment, it was deliberate. The Court of Appeal upheld a 12 months' imprisonment. In another case R V Lal ([25]), the accused had been sued in a County Court for the price of goods. He falsely said he had purchased some of them from a supplier other than the Plaintiff. The Court of Appeal observed that perjury was serious and upheld a sentence of 9 months imprisonment. In Regina V Kayode[[26]], the accused was charged for theft and false accounting explained a credit entry in his bank account as being the proceed of sale of his car and produce a receipt to prove it. He also called E in support. Sentence of 18 months was upheld.

51. In a Tonga case of Uluilakepa V Rex([27]), the Appellant was convicted for perjury on a guilty plea after falsely stated under oaths that he was the heir to his father's tax allotment. He was convicted by the Supreme Court but discharged. On appeal he was convicted and fined $1000.00.

52. The Counsel also refers to Blackstone Criminal Practice page 790 at para B14.4. The paragraph particularly refer to two cases. One is Cunnighan([28]) and the other is Archer([29]). In both cases the Court imposed a sentence of 4 years.

53. Mr Barry for the Crown also refer to the case of Cunnighan and R V Hall([30]) In Cunnighan case he was the victim in a kidnapping case. At the trial he falsely denied in evidence that he had been kidnapped. He was sentenced for 4 years imprisonment for perjury. In Hall's case where an old lady of 61 years was gaoled for 3 months after pleaded guilty to the charged of perjury.

54. In regards to perverting the course of justice Mr Barry refers to number of cases. In Regina V Gregson([31]) the appellant 49 years made false allegation of rape, as a result of which a man was held in custody for 20 hours, 4 months' imprisonment. In Regina V Sodig, the accused was doing an act to pervert the cause of justice by concealing drugs in the house of former girlfriend. He informed Police using a false name that the women was about to receive a delivery of drugs. The Appellant later attended Police station when he denied that he placed the drugs where they were found. Sentence to Two (2) years imprisonment. In another case Regina V Thomas([32]), the accused was a woman making allegation of rape. Such allegation resulted in the arrest of two men and persisted for several days. 18 months imprisonment. In the case of Regina V Jones([33]), twelve (12) years imprisonment for perverting the course of justice. The accused was attempted to intimidate a witness who was to give evidence in the trial of five men for murder. He persuaded her to retract her evidence. The witness was subject to threats in various forms and promised a substantial amount of money if she would change her statement.

Conclusion.

55. What am I considering in this case? Firstly I have to address the question whether there is any mitigating factor. In this case youthfulness of prisoner Leinga is one. He was Nineteen (19) years in October 2001 and 21 at the time of committing perjury. However I noted what the Court of Appeal said in Bati V DPP([34]) that any sentence impose on offenders under 21 years where imprisonment is eminent will normally be considered short than would be awarded to a mature man. At the same time acknowledge mitigating effect on youth does not mean that long sentence is necessarily wrong when imposed on offenders below the age of 21. The Court still uphold the discretionary power to be exercised depending on facts and circumstances of each case. However, this sentence is aimed at reforming a young man to learn from his past mistake. At the end of it he would return to his own community as a law abiding citizen.

56. Secondly I have accounted for the fact that Leinga has no prior criminal convictions. This is his first offence. He was educated to Form 3, a level of education which he may find it hard to secure a permanent employment, unless he has to go for further training in vocational school.

57. I noted as well that he was caught up in a family feud which he could not afford to avoid. That may not be true. He was 19 years at that time and can make his own decision whether to join adults to hunt for humans or to abstain from. That cannot mean he should acquire some benefit as in Uluilakepa's case. In that case the accused falsely stated under oaths that he was heir to his father's tax allotment. That is more or less a family affair. In this case it was a feud between two different families, and a long outstanding history of hostility as well.

58. For reason unknown there is no evidence as to expression of remorse from either prisoner. Expression of remorse is a significant mitigating factor and it adds to the overall strength of mitigation. It shows the prisoner is sorry for what he has done. In this case there is nothing.

59. Though the offences of conspiracy to pervert the course of justice and perjury are not prevalent, however, there is need for general deterrence. Offences of this kind undermine the criminal justice system. Public ought to appreciate and be conscious not to indulge in such criminal behaviour. The courts will not hesitate to deal with people who committed such offence severely, and expect a custodial term immediately.

60. The case is particularly serious. Both prisoners have the intention to conspire to pervert or defeat the course of justice. Their deceptive plan was hatched when they made false statement to Police in 2001 and ultimately gave perjured evidence in 2003 in the High Court trial of John Tana at Lata. In the case of Regina V Mitchell([35]), the Court describe such offence as serious because it strikes at the root of the criminal justice system, entailing, as it does, the giving of false evidence in the hope of producing a false result for the benefit of the wrong doer. Important factors which determine the seriousness is the length of time during which the deception continued, the nature of deception as well as its success in producing a false result.

61. In this case the deception plan was concealed for two years. The seriousness of the consequences is that John Tana was arrested, remanded in custody and ultimately convicted of murder he did not commit. He was sentenced to life imprisonment and served for more than a year before he was released. The nature of conspiracy is to falsely blame John Tana of murder and protect the identity of the real killer. He carried the consequence of life imprisonment as an innocent person, for an offence someone has committed.

62. In Uluilakepa's case the Court of Appeal in Tonga recognized the severity of the offence and state at page 3.3 that,

"Perjury has long been recognised as a very serious offence, as is indicated by the maximum penalty of seven years imprisonment. It strikes at the very foundation of Tonga's Judiciary system and the administration of justice. Persons who commit perjury usually do so to mislead a Court into giving a wrong decision, or, as here, to cause a wrong administration decision to be made"

63. These offences were committed in connection with the original charge of murder and sentence should be proportionally higher.

64. From all the cases the Counsels have submitted, the only case that perverting the course of justice is related to murder is Regina V Jones([36]) where the accused was gaoled for 12 years. All the rest were independent cases. In all the cases custodial term were imposed, except for Solomon Islands case where the sentence of 2 years was wholly suspended, and a fine in Tonga case. In most, the factual situation is not as serious as this one. Of course the sentence here should be proportionally higher.

65. I have decided earlier that a custodial sentence is most appropriate in this case and the sentence to be imposed be consecutive. Not forgetting that I am guided by the maximum penalty provide in the Penal Code.

1. For Conspiracy – both prisoners to serve 1 year each.

2. For Perjury – both prisoners to serve 3½ years each.

3. Sentences to run consecutive to one another.

4. Prisoner Leinga to serve 4½ year in total. His sentence to commence on 4th May 2011.

5. Prisoner Bolami to serve 4½ years in total but concurrent to life imprisonment sentence he now serves.

The Court.

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^[1] [1985] SI LR 268
^[2] [2003] 1 Cr App R (S) 508, para 9.
^[3] (2007) 1 Cr App R(S) 376, para 29
^[4] Cr. App No.14 of 1987
^[5] Ibid
^[6] [2006] SBHC; 145 at PP.2.
^[7] [1987] SBHC; 15; 23 June 1987
^[8] [2004] SBHC; 34; 3 May 2004
^[9] [2004] SBHC; May 2004
^[10] [2004] SBHC; 74; September 2004
^[11] [1991] SBHC; 68; 28 October 1991
^[12] [2004] SBHC; 72; 21 September 2004
^[13] [2005] SBHC; 112; 9 August 2005
^[14] [Ibid]
^[15] [1988-89] 59 LR 121
^[16] [2005] SBCA 5
^[17] Ibid
^[18] Ibid
^[19] [High Court of SI] Criminal appeal Case No. 7 of 1982
^[20] Fiji Court of Appeal sitting as Court of Appeal of Solomon Islands, Criminal Appeal No. 48 of 1979.
^[21] [1979] FJSC 60; Criminal Appeal 64 of 1979 23 October 1977
^[22] [1978] FJSC
^[23] [1974] 59 Cr App Rep. 311
^[24] [1974] Cr L Rev. 613
^[25] [1978] Cr L Rev.52
^[26] [1978] Cr L Rev 302
^[27] [1999] TOCA 20; GA 2
^[28] [2007] 1 Cr App R (s) 376
^[29] [2003] 2 Cr App R (s) 446
^[30] [1982] 4 Cr App R (s) 153
^[31] [1993] 14 Cr App R (s) 84
^[32] [2008] 2 Cr App R (s) 77
^[33] [2008] 2 Cr App R (s) 75
^[34] Ibid
^[35] Ibid
^[36] Ibid