Gafui v Regina [2011] SBHC 47; HCSI-CRC 170 of 2011 (1 July 2011)

The appellant, Almyrah Gafui ("Gafui") appeals against the orders of the Magistrates' Court of 11 January and 25 January 2011 respectively in which a penalty of $200 and in default to be imprisoned for 1 month, and a fine of $50 and in default to be imprisoned for 1 month were imposed.

The grounds of appeal are four fold. The first and second grounds were that the default periods imposed of 1 month each for a fine of $200 and $50 respectively were wrong in law. The third ground alleged that the magistrate erred in remanding the accused for 14 days after she had requested the assistance of a lawyer in court, and the fourth ground, that the Magistrate erred by failing to properly consider the granting of 'time to pay' each fine.

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The issue of 'default periods' is prescribed by law. This is covered by the new Penalties Miscellaneous Amendments Act 2009 ("the Penalties Act"). The previous default period which can be imposed when a fine is imposed is covered by section 26 of the Penal Code. Under that old legislation, a default period of one month imposed for fines of $200 and $50 would be within range. That law however has now been amended by the Penalties Act at section 2 as follows:

*"Amount*	*Maximum period*
Not exceeding 100 penalty units	five days
Exceeding 100 penalty units but not exceeding 200 penalty units	ten days
Exceeding 200 penalty units but not exceeding 500 penalty units	twenty days
Exceeding 500 penalty units but not exceeding 700 penalty units	thirty days
Exceeding 700 penalty units but not exceeding 1000 penalty units ...."	forty days

Section 3 of the Penalties Act in turn amended the Interpretation and General Provisions Act (Cap. 85) by adding a new section 50A. (1) which provided as follows:

"50A. (1) Penalties (whether for an offence or otherwise) in all written laws shall be expressed in penalty units.

(2) If a written law provides for monetary penalty, that penalty shall be treated as and converted into penalty units.

This meant that whereas in section 26 of the Penal Code Act it refers for instance to a fine of $200, this is to be converted to 200 penalty units with a value of $200. The maximum default period for a penalty of $200 under the new legislation is 10 days. In the case of a fine of $50 this converts to 50 penalty units with a maximum default period of 5 days.

I am satisfied an error of law on the face of the record had been committed and that this court should intervene in rectifying that error.

As to the third ground, two issues are raised. The first is that the presiding magistrate erred in remanding the appellant in custody for 14 days, and secondly, in not giving opportunity to the appellant to seek legal assistance.

The question of whether to remand in custody or to release on bail is a matter within the discretion of the court. The primary purpose of bail is to secure the attendance of the accused at his trial. In most instances he or she is released on bail on his own recognizance or with a surety. A surety undertakes to produce the accused at the court on the date, time and place specified to answer the charge against him. When deciding whether to grant bail or not, the court will take into account such factors as the seriousness of the offence, whether the accused will be imprisoned if convicted or not, the strength of the prosecution case, his likelihood of absconding, whether he is a flight risk or not, likelihood of re-offending if released on bail and possibility of interference of witnesses etc.

These issues however are not directly relevant to the facts of this case for the following reasons. First, on the 11th January 2011, the presiding magistrate imposed a penalty of $200 for failing to answer her bail. It is important to appreciate that such an order can only be made if it is established on the facts before the magistrate that the appellant had failed to answer her bail. Section 114 of the Criminal Procedure Code ("CPC") provides how the issue of forfeiture of recognizance is to be dealt with in detail and it is important that all magistrates are aware of this:

"(1) Whenever it is proved to the satisfaction of a court by which a rec ognisance under this Code has been taken, or when the recognisance is for appearance before a court to the satisfaction of such court, that such recognisance has been forfeited, the court shall record the grounds of such proof, and may call upon any person bound by such recognisance to pay the penalty thereof, or to show cause why it should not be paid."

The first thing that a magistrate should do is to require the penalty to be paid, or to show cause why it should not be paid.

Subsection 114(2) then provides for the next step to be taken in the event insufficient cause is shown or the penalty is not paid:

"(2) If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person, or his estate if he is dead."

A warrant for imprisonment is usually the last resort[1]. There is no material before this court to show that the prescribed procedure was followed by the magistrate.

According to the records on the file, the appellant was released by the police on bail in her own recognizance to appear at the Magistrates' Court Central, Honiara on 25th October 2010 at 9.00 am. There is no record however, in the court file to show if the case was called on that date and whether the appellant appeared or not. This is a defect in the court records.

The first entry recorded in the court file was on 8 November 2010. Again there is nothing in the court file to show if the appellant was aware of that date or had appeared on 25th October. The records also do not show who appeared for the prosecution, it simply read: "Defendant on Warrant of Arrest". There is no record of the 'order' for the issue of the warrant of arrest or any copy of the warrant itself on the file.

The records of the court to that extent are inadequate and defective. The magistrates' court is a court of record[2]. It is obliged to keep records of the proceedings and any orders or decision made by a magistrate. There being no warrant of arrest on the file it would seem that no warrant had passed into record. I may be mistaken and that a warrant may have been issued which the police have relied on. If so a copy should be provided so that it can be entered into the court record. If not, then this raises the question about the police powers to arrest the appellant for a supposed breach of bail condition. Such power normally is activated only when it is established before the court that an accused had failed to abide by his/her bail conditions. The magistrates' court and police must take care to ensure that they have proper documentation which authorizes their action and not act presumptuously.

It follows that if it cannot be satisfactorily established before the court that the appellant had breached her bail conditions, then the court cannot penalize her for it. In the absence of any evidence to the contrary, the order of forfeiture was without basis and therefore erroneous as well.

The events which transpired thereafter were a consequence of those erroneous orders. Having noted that the bail bond had not been complied with, the presiding magistrate ought to have inquired into whether she had any means to pay, or had property which could be seized and sold to recover the penalty, before imposing an order for imprisonment in default. The records do not show that this process was complied with. He may have made inquiries verbally, but unless it is written down there is nothing to show for that. The order of imprisonment therefore would appear to have been premature, irregular and therefore erroneous.

As to the issue of adjournment for 14 days, I do not think much can be made out of that once the order of imprisonment for one month was given. From that date, the defendant was a prisoner serving her 1 month penalty that had been imposed and the adjournment made for further mention and directions on the carriage of the case.

As to the issue on the request for legal assistance, a court should always be wary and cautious about this because this is a right secured under the Constitution[3]. The court could stand the case down or adjourn the case to another date and require the accused to see a lawyer before proceeding further with the case. Perhaps if that had been done, the anomalies raised may have been picked up by her lawyer and the erroneous path followed avoided.

The fourth ground of appeal relied on alleged that the magistrate erred by failing to properly consider the granting of "time to pay" each fine. The situation which the appellant encountered was that having been sent to prison for 1 month for breach of bail bond, another penalty of a fine of $50 was imposed but without giving her opportunity to pay the fine. She therefore found herself between a rock and a hard place. She had no opportunity to pay her fine. This problem has been referred to by Justice Goldsbrough in Mannie v. Regina[4]:

"In sentencing this accused to a fine, the magistrate expressly concluded that the offences themselves did not warrant a period of imprisonment. Given that the accused was already in custody and a period of imprisonment in default of paying the imposed fines was immediately imposed, this seems to demonstrate a contradiction. If the offences did not warrant a period of imprisonment, it was wrong to do as the magistrate did and effectively sentence the defendant to a period of imprisonment in default. Since the defendant was already in custody and there was no evidence that he could pay a fine from funds available to him, another sentence should have been imposed, or no separate penalty imposed."

I am satisfied the order issued was also erroneous in the circumstances; time should have been given to the appellant to pay her fine.

I note that additional grounds were raised by counsels for my consideration as well. The first ground raised was in respect of the original bail issued by a police officer below the rank of a sergeant. Sections 20 and 23 of the Criminal Procedure Code prescribe the rank of an officer who can release an accused on bail; this is someone of or above the rank of sergeant. It would appear that this provision has not been complied with as the record showed that the appellant was released on bail by a police officer of the rank of a constable. The police should take immediate note of this requirement and ensure that it is complied with.

The second ground raised but has now been withdrawn was the requirement of the sanction of the Director of Public Prosecutions under section 39(3) of the Dangerous Drugs Act (cap. 98). A sanction appears to have actually provided in this case.

At the hearing I raised the issue of the adequacy of the penalty of the fine of $50.00 with both counsels who conceded that the penalty in the circumstances was inadequate. Section 39(2)(b) of the Dangerous Drugs Act [cap. 98] provides in the case of a summary conviction for a fine of $500 or to imprisonment for six months or to both such fine and imprisonment.

In a similar case, R. v. Louise Pamela Kelly[5] the defendant, an expatriate was found to be in possession of a prohibited substance, Indian hemp, and charged. She pleaded guilty to the charge and was convicted and fined $300 in default 3 months imprisonment. In another case, Tom Dobu v. R.[6], a sentence of 3 months imprisonment imposed by the Magistrates' Court was wholly suspended on appeal for twelve months by the High Court. The circumstances involved a police constable who was charged with giving a prohibited drug to another person. The circumstances of the offence were that he had acquired these in the course of his work, was aware that the police had warned officers not to be involved in such activities and taking stringent measures to improve the image of the police force and therefore the commission of the offence was viewed with graveness from that perspective.

In the circumstances of this case, I am satisfied the appropriate penalty would be a fine of $300.00 and in default 20 days imprisonment.

I am satisfied there are manifest errors of law on the face of the record and this court should intervene. I have carefully considered the effect and outcome of those errors and come to the conclusion that the proper orders would be to allow the appeal, quash the order of the court of 11th January 2011, uphold the order of conviction of 25th January 2011, quash the sentence imposed and re-sentence as follows:

^[1] See subsection 114(4) “If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment for a term not exceeding six months.”

High Court of Solomon Islands

Gafui v Regina [2011] SBHC 47; HCSI-CRC 170 of 2011 (1 July 2011)