Regina v Leua [2012] SBHC 16; HCSI-CRC 105 of 2011 (22 February 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

V

JEFFERSON LEUA

Date of hearing: 17th February 2012.
Date of Judgment: 22nd February 2012.

Mr. J. Naigulevu for the Crown.
Mr. P. Tegavota for the accused.

SENTENCE

Apaniai, PJ:

1. The accused, Jefferson Leua, has been found guilty after trial of 6 counts of larceny as a servant contrary to section 273(b)(i) of the Penal Code ("PC").
   
2. The total amount found to have been stolen by the accused is $5,750.00. This comprises of $2,000.00 collected as fines during the Taro circuit in 2008, $2,750.00 collected as fines during the first Tulagi circuit in February 2010, $500.00 collected during the Lata circuit in March 2010 and $500.00 collected during the second Tulagi circuit in March/April 2010.
   
3. The maximum penalty for an offence under s. 273 of the Penal Code is 14 years imprisonment. However, it has been said a number of times before that the maximum sentence is reserved only for the worst kind of offence[1]. The seriousness of an offence is judged by the penalty prescribed for the offence. In this case, it is a maximum of 14 years imprisonment.
   
4. This case has a number of aggravating factors. It is a case which involved a breach of trust by a person from whom a very high degree of honesty is expected. The accused is a qualified lawyer and was a principal magistrate at the time when he committed the offences. There is no doubt that public's confidence in the judiciary has been affected as a result of the accused's conduct. As such, a deterrent sentence is expected and in such circumstances a custodial sentence is often called for. Furthermore, I note that the accused had used only $200.00 of the money to pay for his nephew's compensation. This means that he had used the remainder (that is $5,550.00) for his own benefit.
   
5. The other side of the coin is the fact that the accused had no previous convictions. Also, he has a family with 2 very young children whom he has a responsibility to support. I have also taken into account that the amount involved is $5,750.00 which may not be a huge amount by today's standards. The accused is 46 years of age and, if a custodial sentence is imposed, the length of such sentence should not be too long as to destroy his confidence to return to society and try and make an honest living thereafter. I have also considered the fact that the accused had fully repaid the $5,750.00 which he had stolen. However, this repayment had only been made this morning. This is a strong mitigating factor and I have taken that repayment into account. However, that does not reduce the seriousness of the offence committed. Finally, while there is no official indication as yet that the accused will lose his job as a magistrate, having regard to the serious nature of the offences and the grave breach of trust committed by the accused as a principal magistrate, there is no doubt in my mind that the accused will lose his job. I have taken that into account as well.
   
6. I have been referred to a number of similar cases which have come before this court previously. I am grateful to counsel for their assistance.
   
7. In R v Kobi[2] ("Kobi"), the accused was charged with the offence of larceny by a servant. The amount alleged to have been stolen was $65,519.66. He was a first offender and had pleaded guilty to the charge. He was sentenced to 2 ½ years imprisonment.
   
8. In that case, Palmer J, (as he then was) had considered the guidelines laid down in the English case of R v Barrick[3] ("Barrick") as relevant guidelines to adopt when considering the appropriate sentence to impose in cases such as the present case. He referred to the quality and degree of trust reposed in the offender including his rank. In the present case, the accused was the Deputy Magistrate at the Central Magistrates Court in Honiara. The degree of trust reposed in him was high. The second guideline is the period over which the offence has been carried out. In the present case, the first offence was committed in 2008 and again in 2010. The third criteria is the use to which the money was put. In the present case, the accused had used $200.00 of that money to settle a compensation demand put to his nephew. The remainder was used on himself. There are other matters referred to in Barrick which included the effect on fellow employees, the public and public confidence. I have already referred to some these matters earlier in this judgment.
   
9. In R v Saungao[4] ("Saungao"), the accused was the Controller of Prisons. He was charged with 1 count of larceny as a servant and 4 counts of misconduct in office. He was found guilty of the charge of larceny and 2 counts of misconduct in office. Unfortunately, the amount involved in the larceny charge was not disclosed but it involved taking government materials for the repair of his private home. He was fined $3,000.00 in default, 5 months in prison.
   
10. In Fiuadi v R[5] ("Fiuadi"), the accused was a marine officer. He removed solar panels from the marine office. The value of the solar panel had not been indicated. However, the accused was convicted at the Magistrates Court of larceny by a servant and sentenced to 9 months imprisonment. His appeals against both the conviction and sentence were rejected. In rejecting the appeal against sentence, the court was of the view that the case was one which involved a breach of trust and therefore a sentence of 9 months was not excessive in the circumstances.
    
11. In Tioti v R[6] ("Tioti"), the accused was convicted after trial of the offence of larceny by a servant. The amount involved was $2,000.00. The accused was sentenced to 5 months imprisonment.
    
12. I have considered the question whether or not a prison term is appropriate. In Fiuadi, Ward, CJ, said (at p. 3):
    

"Any offence of dishonesty is serious, but when it is committed by a person in a position of trust in breach of the trust placed in him, it is more serious....

"An employee, by the nature of his employment, always has the opportunity to steal his employer's property. The public service and all commercial undertakings can only function properly if they can rely on the loyalty and honesty of the people they employ. It must be clearly understood that in any offence where a breach of trust is involved a sentence of imprisonment will always be appropriate."

13. This case is of the same category as the above cases. It is larceny by a servant. It involved a breach of trust by a person who has been placed in a position which demands the highest standard of trust and honesty. He has breached that trust and has become dishonest. The words of Ward, CJ, in Fiuadi ring loud and clear and that is a custodial sentence is inevitable. Taking into account all the aggravating and mitigating factors mentioned herein and the range of sentences passed in respect of previous similar cases as well as the need for deterrence, I impose the following sentences on the accused:
    

Count 1: 4 months imprisonment;

Count 2: 6 months imprisonment;

Count 4: 2 months imprisonment;

Count 5: 1 month imprisonment;

Count 7: 1 month imprisonment;

Count 8: 2 months imprisonment.

14. I order that these sentences be served concurrently.
    
15. Finally, I have considered the question of a suspended sentence as provided for under s. 44 of the Penal Code. To qualify for a suspended sentence, the accused must demonstrate that special or exceptional circumstances exist which would justify suspending the sentence[7]. As stated in Fiuadi, it is only in the most exceptional circumstances that it would be appropriate to suspend a sentence of imprisonment imposed for larceny by servant.
    
16. In the present case, counsel for the accused had conceded that there are no special or exceptional circumstances to justify suspending the sentences. I accept that submission. Accordingly, the sentences will not be suspended.
    

THE COURT

JAMES APANIAI
PUISNE JUDGE

---

^[1] See for example R v Saungao CRC No. 30 of 1995
^[2] CRC No. 006 of 1995
^[3] (1985) 7 Cr. App. R. (S) 142


^[4] CRC No. 30 of 1995
^[5] (1989)SBHC 17 / [1988/89] SILR 150
^[6] [1999] SBHC 96
^[7] R v Fiuadi, opcit; DPP v Jolame Pita 20 FLR 5; R v A’aron [1999] SBHC 128; See also R v Samani, CRC No. 104 of 2011.