Regina v Kemahaku [2011] SBHC 51; HCSI-CRC 103 of 2011 (28 June 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

ARTHUR KEMAHAKU

Date of Hearing: 27 June 2011
Date of Judgment: 28 June 2011

Mr. A. Kelesi for Appellant
Mr. S. Aupai for Respondent

DECISION

Apaniai, PJ:

1. This is an appeal by the Crown under section 283(1) of the Criminal Procedure Code (Cap. 7) ("CPC") against a decision of the Central Magistrate Court dated the 25th February 2011.
   
2. The facts are quite straight forward. The respondent was charged under section 245 of the Penal Code with assault causing actual bodily harm to one, Kenneth Bosamate, at Metapona area, Guadalcanal Province, on 5th October 2010. It was accepted by the magistrate, and conceded at the hearing of this appeal, that there were aggravating features present in connection to the charge. These include the fact that a weapon was used in the assault and the victim had sustained injuries as a result of the use of the weapon.
   
3. At the hearing on 25th February 2011, the Respondent pleaded guilty to the charge and the presiding magistrate, after hearing plea in mitigation, sentenced him to 9 months imprisonment. However, the magistrate went further and suspended the 9 months sentence on condition that the Respondent enters into a good behaviour bond for 18 months in the sum of $500.00.
   
4. This appeal is against the suspension of the sentence. The Appellant asserts that the suspension is contrary to section 44(2) of the Penal Code.
   
5. Section 44(1) of the Penal Code confers a discretion upon a court that passes a prison sentence of 2 years or less on an offender to suspend the sentence for such period of not less than 1 year nor more than 2 years. However, under section 44(2), that discretion is not available where the offence involves the use, or illegal possession, of a weapon.
   
6. The Appellant says that a weapon (an aluminium pipe) was used in the commission of the offence and therefore the magistrate should not, by virtue of section 44(2), have suspended the 9 months sentence imposed on the Respondent.
   
7. The Respondent concedes, and rightly so in my view, that the magistrate was wrong in suspending the sentence. He also concedes that an aluminium pipe was used in connection with the offence. Clearly, section 44(2) does not allow suspension of a sentence of 2 years or less where, as in the present case, a weapon was used in the commission of the offence.
   
8. It has been settled in this jurisdiction that where an offence has been committed with the use of a weapon, a magistrate has no jurisdiction to suspend a custodial sentence imposed in respect of the offence and that any suspension order made in relation to such sentence is a nullity[1].
   
9. At this juncture, I wish to echo again the advice by His Lordship the Chief Justice, Sir Albert Palmer, in R v Puia[2] ("Puia case") where His Lordship urged magistrates to have regard to the guidelines regarding suspending of sentences issued by His Lordship, Chief Justice Ward, in judicial circular dated 14th August 1991.
   
10. In this appeal, it is clear that the magistrate had no jurisdiction to suspend the 9 months prison term imposed on the Respondent. The offence with which the Respondent was charged, and to which he had pleaded guilty, was committed with the use of a weapon. The sentence should not have been suspended. Accordingly, I set aside the magistrates court decision suspending the 9 months prison sentence imposed on the Respondent.
    
11. However, the matter does not end here. Counsel for the Respondent has urged me to set aside the magistrate's 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 judgment, 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. As stated at paragraph 12.6 by His Lordship, Palmer, CJ, in the Puia case:
    

"The effect of a mistake where a suspended sentence is imposed when a magistrate has no power to suspend the sentence of imprisonment is that his order of suspension is a nullity but the sentence of imprisonment takes effect immediately".

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.
    
14. I make the following orders in relation to this appeal:-
    

(1) The appeal is allowed.

(2) The order for suspension of the sentence of 9 months imprisonment made by the magistrate on 25th February 2011 is set aside.

(3) The said sentence of 9 months imprisonment stands and shall take effect immediately.

THE COURT

_________________________

Justice James Apaniai
Puisne Judge

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^[1] R v Puia, CRC No. 171 of 2008.
^[2] CRC No. 171 of 2008 at paragraphs 12.2 to 12.5; see also R v Hori & R v Melody CRC Nos. 118 and 119 of 1993