Regina v Ashley [2012] SBHC 10; HCSI-CRC 178 of 2011 (3 February 2012)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 178 of 2011

REGINA

-V-

CHARLES KAUKUI ASHLEY

HEARING: 3rd February 2012
SENTENCE: 3rd February 2012

R. Olutimayan, F. Joel and A. Driu for the Crown
J. Iroga for the Defendant.

Palmer CJ.

1. This is a indeed a sad but disappointing case primarily because of your professional status as a lawyer, who should have known and been fully aware of your duties and responsibilities as a lawyer in respect of your client's money.
   
2. Not only does the Legal Practitioner's (Professional Conduct) Rules require accountability and care in the handling of trust monies but it also places you in a special position of trust to your client, who looked up to you to deal with them in a transparent and honest manner, this was made patently clear at trial.
   
3. Those obligations are basic to your profession as a lawyer and legal practice, that is why this type of breach is treated seriously by any court in the Commonwealth jurisdiction as shown in the references and case authorities provided by prosecution and your lawyer in this case.
   
4. Today your professional status works against you as an aggravating factor.
   
5. The total amount of money converted, $1,110,000.00, which has never been in issue, by any standards, but more so in the Solomon Islands context, is not an insignificant figure and shows quite a serious lapse in your responsibilities as a lawyer to your client, a fortiori, the lengthy period (well over two years), in which this lapse was allowed to persist, and despite repeated requests from the complainant and the extent they were compelled to go, to recover their monies. It was eventually recovered only after conviction.
   
6. I also take note of the mitigating factors in this case that have been submitted on your behalf by Counsel Iroga, your personal background, family and extended family obligations as the main bread winner and reliance place on you by them. The effect on them obviously is not small but this is something which should have been borne in mind from the outset.
   
7. I take into account your educational and employment background, although these also impose extra responsibilities and level of accountability.
   
8. I also take into account your level of contribution in the community, which showed that you commanded a high level of respect, trust and confidence, especially in the sporting community, nationally, regionally and internationally. This is also reflected in the various references that have been provided in support of your mitigation which I have read and take into account.
   
9. You do not have any previous convictions and this is your first brush with the law, credit is given for that. I also note that the amount of the judgement in Civil Case 132 of 2009 has been paid off. While that was done after conviction, I do take that into account in your mitigation for that shows that you have made a genuine effort to clear off your debt with the complainant and does reflect in my view, an element of remorse on your part at this point of time.
   
10. The maximum penalty for this type of offence is 7 years. That is reserved for the more serious cases.
    
11. I have had the benefit of comparing various sentences imposed on similar offences in other jurisdictions and thank counsels for their assistance in the case authorities[1] provided. Each case in any event is to be considered on its own merits and I bear that in mind in your case as well.
    
12. It is clear from those authorities that this type of offending especially by a person in a position of trust attracts an immediate custodial sentence. I find no exceptional circumstance to differ from that position in this case. In so doing I take into account the principles of deterrence and retribution referred to by Kapi JA in Johnson Tariani v. R[2], which apply in the circumstances of this case. These however must be balanced with the principles of rehabilitation and separation and reintegration of the defendant back into the community.
    
13. The sentences imposed in other jurisdictions in the cases cited by prosecution show sentences of 3 years 9 months where the amount misappropriated was $62,231.83 to 10 years for an amount of about $6.6 million. For similar offences in Solomon Islands by in the case of Una v. R[3] on a guilty plea and for the sum of $40,000.00, a sentence of 18 months was substituted by the High Court on appeal. In Suiga v. R[4], on a guilty plea and for converting $6,683.21, a sentence of 18 months was also substituted by the High Court. In Dausabea v. R[5], a sentence of 18 months was also imposed and upheld in the High Court and Court of Appeal. The amount converted was $40,000.00. He was also ordered to pay the full amount as compensation.
    
14. Some differences can be noted in those cases to this, in terms of the total amount of money converted, that a guilty plea had been entered and orders of compensation being made by the court.
    
15. Perhaps the nearest case to this would be the case of Levo v. R[6], where after trial, on five counts of conversion, he was sentenced to a total of 2 years imprisonment and 12 months suspended for one year.
    
16. Taking all the relevant factors into account, I am satisfied a sentence of 24 months in each count is appropriate. On the question whether these should be made consecutive or concurrent and whether any part should be suspended, I note the following matters. First, the amount outstanding has been paid in full it seems. Secondly, the effect on him will be more acutely felt by virtue of his status in the community. And thirdly, the impact this will have on his future career as a lawyer. I do not want to prejudice any future hearing before the Disciplinary Panel and outcome of your case but your file will be forwarded in due course for their consideration.
    
17. In the circumstances, I am satisfied as well, that those sentences be made concurrent with 18 months to be suspended for 12 months. You will be required to serve 6 months, the period in custody to be taken into account.
    

ORDERS OF THE COURT:

1. Impose sentence as follows:
   
   1. Count 3: 24 months;
   2. Count 28: 24 months, to be served concurrently;
   3. Count 29: 24 months, to be served concurrently.
      
2. Order that 18 months be suspended for 1 year and 6 months to be served with immediate effect.
   
3. The period spent in custody to be taken into account.
   

The Court.

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^[1] R. v. Houlton, [2000] NSWCCA 183 (17 August 2000); R. v. Marvin (NSW CCA, Unreported 1 November 1995); R. v. Woodman [2001] NSWCCA 310 (15 August 2001); R. v. Smith [2000] NSWCCA 140 (1 May 2000); R. v. Hawkins (1989) 45 A Crim R 430 at 436; Una v. Regina [2007] SBHC 17, HCSI-CRC 402 of 2006 (24 April 2007); Suiga v. Reginam [1991] SBHC 5, HCSI-CRC 038 of 1990, 23^rd January 1991.

^[2] [1988-1989] SILR, at pages 12-13
^[3] Ibid
^[4] Ibid.
^[5] Ibid.
^[6] MCC-CRC 24 of 2006, 28 May 2010; [2010] SBHC, HCSI-CRC 250/10; [2011] SBCA 5, CASI-CRC 01 of 2011 (9 May 2011).