Regina v Samani [2012] SBHC 15; HCSI-CRC 104 of 2011 (17 February 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

V

FLICKSON SAMANI

Dates of hearing: 14th February 2012.
Date of Judgment: 17th February 2012.

Mr. Naigulevu for the Crown.
Mrs. Wagavonovono for the accused.

SENTENCE

Apaniai, PJ:

1. The accused, Flickson Samani, was convicted on 26th January 2012 of 1 count of abuse of office contrary to section 96(1) of the Penal Code ("PC"). That section also provides that the offence of abuse of office is a misdemeanor but where the offence is committed for the purpose of gain, the offence is a felony and attracts a maximum penalty of 3 years imprisonment. There is no dispute that the accused had gained nothing from his conduct. This case is therefore a misdemeanor.
   
2. No penalty has been prescribed under s. 96 for the offence of abuse of office where the offence is misdemeanor. However, s. 41 of the PC provides that where no punishment is specifically provided for a misdemeanor, the punishment shall be imprisonment for a term not exceeding 2 years or a fine or both. Unfortunately, the amount of fine to be imposed has also not been prescribed under s. 41 but s. 25 provides that where a fine is imposed but no sum is expressed, the amount to be imposed is unlimited but shall not be excessive.
   
3. My duty now is to decide the appropriate sentence for this offence. In doing so, I am entitled to either impose a custodial sentence or impose a fine or impose both[1].
   

Aggravating factors:

4. This case has a number of aggravating factors. The accused was a magistrate. His duties involved not only determining whether or not an accused person is guilty of the offence with which he or she is charged, but to also impose the appropriate sentence if the person is found guilty of the offence. A high level of trust has been placed upon him and he was expected to perform his duties with honesty and integrity. He had betrayed that trust and had fallen short of showing honesty and integrity in performing his duties. His conduct had brought the Magistracy, in particular, and the judiciary, generally, into disrepute. That is a very serious matter.
   

Mitigating factors:

5. Fortunately for the accused, he had retired all the monies. This is a very strong mitigating factor on his behalf. Furthermore, he is a first offender. Courts should be hesitant in sending first offenders to prison[2]. He is married and has a child which he must support. He also supports his mother and nephews. There is no doubt that he has now lost his job as a magistrate. Whether he can find another job in the legal field, where his qualification lies, is an issue which hangs in the balance. He was a person of good character until this offence. I have taken into account the character references made on behalf of the accused by the Chief Magistrate and Rev. Herman Tige.
   
6. I have also taken into account the fact that the SIG had suffered no serious loss as a result of the accused's conduct. As I said earlier, all the monies which were in his possession had been fully retired to the SIG. That is also a factor justifying leniency.
   
7. Counsel for the accused had urged me to consider the fact that the failure by the magistrate court to provide a court clerk to accompany the accused on those court circuits may have created an environment conducive to the commission of the offence and therefore the accused should not bear the full blame for what happened. I do not accept that excuse. The accused was a magistrate and was expected to be trustworthy. He has failed on that front.
   

Judicial precedents:

8. I have not been able to find any previous case of abuse of office in Solomon Islands to guide me determine what should be the appropriate range of sentence in cases such as this. I have come across a case on misconduct in office[3] but none on abuse of office. I have been informed by counsel that they have not been able to find any local decision either. It may be that this is a kind of offence which is very rarely committed in Solomon Islands.
   
9. However, counsels have referred me to a number of abuse of office cases decided by the Fiji Court of Appeal. I am grateful to counsel for their assistance.
   
10. In Kubunavanua v The State[4] (Kubunavanua), the accused was a police officer in charge of a police station in Fiji. He removed a TV screen and a video deck from an exhibit room at the police station and used them for 5 months before returning them to the exhibit room. He was convicted of abuse of office and sentenced to 9 months imprisonment suspended for 18 months.
    
11. In Naiveli v The State[5] (Naiveli), the accused was an assistant police commissioner. Under official guise, he ordered a sergeant to evict a citizen from a house and land which the citizen and her family had occupied after their lease had lapsed. The accused was interested in that plot of land. The accused was convicted of abuse of office and sentenced to 9 months imprisonment suspended for 12 months. In addition, he was also fined FJ$1,000.00, in default, 6 months imprisonment. The sentence was suspended on the basis that he was unlikely to re-offend, that he was dismissed from his job as a police officer, and, that he would pay money to the victims. Although the Court had agreed with the suspension of the sentence, the Court had issued a warning that people in high office who abuse their power should expect an immediate prison sentence. The Court said (at pp. 5 and 6):
    

"We wish to make it clear however that people in high office who abuse their power may well in the future be required to serve an immediate prison sentence. This comment should serve as a notice to any such people that the courts are not prepared to regard such offence lightly and that they will not suspend sentences just because the consequences for such a person are severe."

12. In The State v Bola[6] (Bola), the accused was the Manager of Compliance & Investigation Division of the Fiji Immigration Department. While on duty, he personally went to the airport to ensure a passenger, sponsored by a local couple personally known to him and who were donating money to his church, was not refused entry into Fiji. He was convicted of abuse of office and sentenced to 100 hours of community service. In addition, he was fined FJ$2,000.00, in default 3 months imprisonment. The court held that imprisonment was not appropriate because the accused had derived no personal benefit from his conduct.
    
13. In these 3 cases, the sentences were either a suspended term of imprisonment or a suspended term of imprisonment coupled with a fine or community service coupled with a fine. Despite the leniency shown in these three cases, it does not mean that all abuse of office cases must be treated in the same manner. Each case must depend on its own circumstances. There may be cases where, although the accused had derived no personal benefit, the circumstances of the case are such that a custodial sentence is inevitable. Conversely, there may be cases where an accused had personally benefitted from his conduct, but that a custodial sentence would be inappropriate having regard to the circumstances of the case.
    

Appropriate sentence:

14. In the present case, after weighing the aggravating factors against the mitigating factors and having considered the kind of sentences handed down in the Fijian cases referred to above and having further regard to other matters urged upon me by both counsel, it is my view that a sentence of 6 months imprisonment is appropriate in the circumstances of this case. In addition, it is my view that a fine is appropriate in this case to emphasis the need for deterrence in offences of this nature and to give a clear message to like-minded others, who may be considering similar conduct now or in the future, as to the court's attitude towards such conduct. In my view, an additional penalty of 1,000 units would be appropriate in this case.
    
15. In imposing this sentence, I am mindful of the remarks of the Fiji Court of Appeal in Naiveli where the Court said (at p.5):
    

"We note that such offences strike at the very roots of the administration of law and order and justice in this country. Such an offence can be committed only by a person who is in a position of authority and trust. If it became a pattern that because of their high position they would not serve a term of imprisonment it could only be to the detriment of the whole country."

16. The remark was made in the light of the accused's spotless antecedents and the remoteness of the likelihood of re-offending in the light of the conviction, as well as the fact that the accused was certain to lose his job. The remarks were intended to convey the message that holding of high positions and the loss of such positions are not sufficient reasons to avoid a custodial sentence.
    

Suspension of custodial sentence:

17. Counsel for the accused had urged me to consider a suspended sentence in the event that a custodial sentence is deemed appropriate. She had cited a number of Fiji Court of Appeal cases, including those referred to above, in support of her submission.
    
18. In Naiveli, the Court had referred to a judgment in DPP v Jolame Pita[7] in which it was held that once a court had reached a decision that a sentence of imprisonment is warranted, there must be special circumstances to justify suspension. In his book, Principles of Sentencing[8], the learned author, D.A. Thomas, said:
    

"The most typical use of the suspended sentence so far as the Court of Appeal is concerned is the case of an offender of previous good character who has committed an offence of a relatively serious nature (but not in the first order of gravity) under circumstances of substantial mitigation."

19. This court has previously dealt with a number of cases where sentences have been suspended. These cases included R v Palmer[9], Selwyn v R[10], R v Iroi[11], R v Mani[12] and R v A'aron[13] to name a few. While these cases do not relate to the offence of abuse of office, it is clear that the basis for the suspension of the imprisonment terms imposed in those cases was the special circumstances found in relation to each of the cases.
    
20. In the present case, I have come to the conclusion that a sentence of imprisonment is warranted and that a term of 6 months imprisonment is an appropriate sentence. So the question now is, are there special circumstances to justify suspending the sentence?
    
21. I think there are. First, the accused was a person of previous good character. Second, the offence, though relatively serious, could not be said to be in the category of what could be called the most serious type of cases. It only involved withholding money which belonged to another, that is the SIG, for a period of 19 months. All the money had been retired to the SIG. The only detrimental effect resulting from the accused's conduct was the denial of SIG's right to the use of the money during the 19 months period. Third, the accused had not benefitted in any way at all from his conduct. Fourth, there is no likelihood of the accused committing the same offence again in the light of this conviction. The accused had been a person of high standing in society by virtue of his position, both, as a lawyer and a magistrate. His image has been tarnished and I am sure he now regrets what he did. I am satisfied these are circumstances of substantial mitigation which warrant the suspension of the 6 months custodial sentence.
    

Order:

22. I therefore sentence the accused to 6 months imprisonment to be suspended on condition that he does not commit any offence within 12 months from today's date. In addition, I impose on the accused a fine of 1,000 units, such fine to be paid within 15 days from today's date, in default 40 days imprisonment[14].
    

[Requirements of suspended sentence under s.45 of the Penal Code explained. Accused also told of right of appeal].

THE COURT

JAMES APANIAI
PUISNE JUDGE

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^[1] See section 24(3) of the Penal Code; see also s. 8(1), Criminal Procedure Code.
^[2] R v Saungo [1997] SBHC 60.
^[3] Ibid.
^[4] Criminal Case No. 4 of 1992 (Fiji).
^[5] [1994] FJCA 29
^[6] [2005] FJHC 236.
^[7] 20 FLR 5
^[8] D.A. Thomas, Principles of Sentencing, 2^nd Edition, p.245.
^[9] [1991] SBHC 40
^[10] [1991] SBHC 68
^[11] [1991] SBHC 56
^[12] [1998] SBHC 77
^[13] [1999] SBHC 128
^[14] See section 2, Penalties Miscellaneous Amendments Act 2009.