Oiofa v Regina [2012] SBHC 66; HCSI-CRC 506 of 2011 (27 July 2012)

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Mr. B. Ifuito and McSpedden for the Appellant.
Mr. A. Aulanga for the Respondent.

1.	Faukona J: This is an appeal against sentence imposed by the Principal Magistrates Court on 12th April, 2011. The appellant and two co-accused pleaded guilty to one Count of assault with intent to rob contrary to section 293 (ii) of the Penal Code. The learned Principle Magistrate imposed 4 years and 4 months imprisonment on the appellant to commerce on 29th January, 2010, the date the accused was apprehended and placed in custody.

2.	The appellant appeals against his sentence on two grounds;

	(1)			The learned Principal Magistrate erred in law in that the sentence imposed was manifestly excessive.

	(2)			The learned Principal Magistrate erred in law and in fact in failing to take into account the mitigating factors submitted on behalf of the appellant. The Appellant therefore seeks an order setting aside the term imposed by the learned Principle Magistrate and a lesser term of sentence be imposed.

	The Brief facts.

3.	The agreed facts are that on 26th January, 2010, after close of business at 5:20pm, the victim an Australian of 64 years old lady, Elizabeth Vollrath left her business at Chinatown to drive home to Ranadi. She left the shop with her husband and two security boys. As she left she noticed some men were standing outside her shop looking at her. She was carrying $80,000.00 cash being the day's taking. She drove her car followed by her husband in another blue car.
4.	The appellant's vehicle followed the victim to her home. The car did not have any number plate. The accused and another co-accused were dropped off near the victim's house. They were armed with bush knives. The victim recognized the appellant with his knife. The appellant then hit the widescreen of the victim's car with his knife and shattered it. The front driver's window screen was also smashed by the appellant with his knife.

5.	The victim suffered cuts to her right chick and three fingers as a result of the attack. The injuries were caused by the shattered car glass and the knife.

6.	The victim's husband pursued the two men and hit the co-accused with his car. The appellant then ran towards the husband and smashed the driver window screen causing the husband in glass. The appellant's car then left heading west of Honiara. The husband pursued the car to the cemetery. Soon after the car was speeding through Green Valley where another co-accused was living. The same car was seen later leaving Green Valley – this time with number plates.
7.	On the outset, the Counsel for the Crown submits that the cases the applicant's Counsel refer to R v Iro and Tatau^[1] and R v Wanefalea^[2] were considered on different basis and should be distinguished from this one. In Iro's case there was no element of planning and Wanefalea's case was decided twenty years ago. The Counsel also refer to the aggravating features as disclose by the agreed facts and the result of the offending which the victim sustained injuries requiring treatment in Australia and damage to her car and the car owned by her husband. The Counsel finally concludes that the sentencing Magistrate has considered all the aggravating and mitigating features before arriving at the sentence. He further submits that this case involve the degree of planning and provocation.
8.	In respect to consideration of guilty plea the Counsel submits that the sentencing Magistrate has considered the plea and has referred to the case of Qoloni v R^[3] to guide him arrive at the sentence of 4 years and 4 months.

	Ground 1

9.	The question I pose is; is the sentence of 4 years and 4 months manifestly excessive in the circumstance of this case? To determine the excessiveness of any sentence a Judge or a magistrate must first consider the maximum penalty provided by law for that offence. Then consider the jurisdictional maximum penalty authorized by law for the class of Magistrate to impose. In this case the maximum penalty for a Principal Magistrate to impose is 5 years imprisonment. This means the Principal Magistrate cannot impose a sentence for a single offence for more than five years. Having considered that the Magistrate must consider all the relevant facts surrounding the entire case.

10.	Counsel for the appellant submits that the sentence was manifestly excessive considering the facts, the mitigating factors and comparable sentences.

11.	The facts as agreed upon reveal that the appellant is one of the two men the victim saw when she went out at the close of business at China town. She affirmed that when she saw him again with a knife close to her residence. He was the one who smashed and damaged the screen at the victim's car and that of her husband's car. He was the most aggressive of them all. He admitted in his record of interview that he met the other two prisoners at China town and they followed a blue car; that car was owned by the victim's husband. That evidence show the very reason why the car the appellant and two prisoners were using had no number plate on it purposely to mislead the public and authorities. And show the appellant was part of the premeditated plan to carry out the offending. The fact that he was picked on the way is not part of the facts as agreed up.

12.	I have read the written record of sentence and the reasons for the conclusion the learned Principal Magistrate had arrived at. In reality there is nothing in the reasoning amplified all the mitigating factors and whether they were considered. The learned Principal Magistrate focused on plea of guilty alone and omitted other significant mitigating factors submitted before him as; the prisoner's age of 20 years, a student at IT solutions prior to his arrest, first offender, not being a ring leader, being co-operative with Police, and the fact that he did not benefit from the offence.

13.	From the agreed facts I would deduce the offence was a premeditated one where weapons and violence were used. Of course they are aggravating factors. Furthermore, it would be more relevant to extract further facts to ascertain the extent of the injuries sustained, and whether they can only be treated overseas than at the Referral Hospital in Solomon Islands; and the value of damages. Those facts should contribute significantly before setting a starting point to work on. The record of the court below does not reflect in full the reasons why the learned Principal Magistrate set 5 years as starting point. It is a good practice to show on record the reasons for setting a starting point. Also noted that 5 years being the Principal Magistrate's jurisdictional limit for this offence. One would assume that he would have considered all the aggravating factors, which I find not the case here; the record does not show it. In any event the learned Principle Magistrate after setting five years considered the plea of guilty as the only mitigating factor and the rest were omitted for no reason. One instance is the youthfulness of the prisoner.

14.	In the case of Bati V DPP^[4] the quoted paragraphs appear on page 2 paragraphs 5 and 6. It was an extract from (D.A Thomas) 2nd Edition 195 on "Principles of Sentencing".

			"Youth is one of the most effective mitigating factors. As has been shown the Court strongly favours the use of individualised for offenders under 21...Where an offender of this group is sentenced to imprisonment the sentence will normally be considerably shooter than should be awarded to a man of mature years for the same offence".

	Later in the same paragraph, however, the learned author continues;

		"Recognition of the mitigation effect does not mean that long sentences are necessarily wrong when imposed on offenders below the age of 21 years...."

	This paragraphs upholds the discretionary powers of the Court which must be exercised with due reasonableness depending on facts of each case.
15.	This particular mitigating feature and the rest as stated in paragraph 12 above in my view were not considered at all. If it were the record of the written sentence would have shown. There is none. All I could conclude is that the learned Principal Magistrates has erred in law for omitting and not considering very important mitigating features. This ground must be allowed.

	Ground 2.

16.	The focus of this ground premise on the improper consideration of plea of guilty for the offence. From the record of the written sentence, what appears in my view is that the learned Principal Magistrate has placed too much emphasis on the appellant's role and involvement individualistically in the incident coupled with the effect on the victim. He confided himself to the principle as to who physically committed the act (which is admitted) that cause the result. No other factual circumstances beside was taken into account, or if at all attract no or less consideration.

17.	At page 9 of the written sentence the learned Principal Magistrates awarded discount as an entitlement for plea of guilty. He went on to consider the only case Qoloni V Regina^[5] as a guide to value the percentage of discount which range from 10-25% and nothing more. That authority seems to give the Magistrate a yard stick which he subsequently arrived at 12% discount from the starting point. Further still, there is also mention of the appellant's plea of guilty after a voir dire trial. He attributed that a number of case authorities were provided but decided to apply Qoloni's^[6] case as most appropriate.

18.	From my point of view, the learned Principal Magistrate applied Qoloni case confine to the utilitarian value. In other words identifying the range of value is beneficial in considering a wide range of authorities to enable the Magistrate arrive at a particular tariff. However, no two cases have the same perfect circumstances.

19.	What the learned Principal Magistrate failed to consider is the effect of plea of guilty and the extent of its applicability in various circumstances. In the case of Gerea V Regina^[7]. His Lordship Palmer CJ discussed some of the reasons underlying discount for a plea of guilty. He echoed that guilty entered have saved the Court and the public time and money. Further in the same paragraph he said, guilty pleas must be given due discount. Also, not only does it save or avoid victims from having to relive such traumatic incident but also can be said to demonstrate true remorse..."

20.	Plea of guilty also carries weight. There may not be evidence of remorse in plea of guilty and is entered in the eleventh hour, amidst the strength of the case may not attract any reduction. It will not cancel, or ceased or outweighed by aggravating facts. It will stand the test and remain as a mitigating factor, R V Hall. The same sentiment is echoed in Roni V R^[8] that guilty plea without remorse does warrant a reduction in sentence because of its utilitarian value. Further elaboration is expounded in Cameron V Queen^[9] where Kirby J noted that a discount is ordinarily warranted for a late guilty plea. Even in situation where plea of guilty was entered in the second day of trial; the case of R V Ludawane^[10] uphold the principle and recognised for both its utilitarian value and as evidence of remorse. In Pitamana V R^[11], the Chief Justice observes that guilty pleas ought to be taken into account even in worst cases. All that must be stated clearly on record as expressly stated in R V Thompson^[12] that a sentencing judge should explicitly state that a guilty plea has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. Those authorities clearly support the principle that a guilty plea has two components. It can be an indication of remorse and may have utilitarian value.

21.	The learned Principal Magistrate may have considered the plea of guilty and attach weight to it because it was entered after voir dire trial. The problem I note from the record is that he failed to explicitly state the effect and the value of plea of guilty even in various stages in the proceedings. He use the case of Qoloni to assess the tariff, that is jumping to conclusion hastening, and failed to consider other citations tendered to him. One thing is calculating the tariff where there is no fix formula; the other is considering plea and its effect. For reasons I have said I find the Principal Magistrate erred in law for failing to properly consider the plea of guilty.

22.	Also apparent from the record the learned Principal Magistrate placed emphasis on the fact that the appellant was the most aggressive than two other co-accuseds. I note that this is a premeditated action. They have to attack a moving vehicle by way of terrorist and violent. The appellant and his friend were armed with a bush knife each and were standing on both side of the road to attack. For reason not disclose, only the appellant did attack the victim's vehicle. His co-accused perhaps may be feared and reluctant to execute their plan. Yet he was placed in the scene for that purpose. In my view the appellant's sentence should not appear indifferently from his friend.

23	Earlier I do mention, but would reiterate again, drawing from the record it seems the appellant's sentence was far more severe than the two other co-accused's because he was the ring leader. I doubt that such consideration has any basis. In fact the appellant is the younger than two other co-accused. He could not possibly the ring leader. Such expectation could always be the responsibility of a much elderly person.

	Tariff.

24.	In submission the Counsel for the appellant refer me to a number of cases. In R v Iro^[13] a sentence of 3 years imprisonment was imposed after a plea of guilty. Iro and another were in a vehicle. Upon seeing the victim they stopped and Iro jumped out and went to the victim and struggled with him to get the key. During the course of struggle the victim suffered minor injuries. Accused Iro had multiple previous convictions but was ignored because of its remotefulness.

25.	In another case, R V Wanefalea^[14], the accused pointed a knife at a shopkeeper and robbed him. He returned the second time and robbed him again. On the third occasion the accused returned and damaged property with a knife. The accused was convicted after trail. The Court in its own words said on page 2, paragraph 7, "that the sentence this Court impose must reflect the seriousness of the offence and it will inevitably be a severe sentence". The Court then imposed 2½ years imprisonment.

26.	In the second case the sentence was imposed 20 years ago. Over time law has developed but the principle still remain the same.

27.	In comparison the common denominator in those cases and this one is the use of offensive weapon with violence. In R V Iro^[15] the case concern one person but another person was in the vehicle at the scene. Accused Iro did physically manhandle the victim who sustained minor injuries. In this case the appellant damage the screen of the victim's car with a bush knife causing her sustained injuries from the shattered glasses and the knife whilst his friend also armed and was nearby. Further comparison should be considered in the light of the second case which the accused returned the third time and plunged the knife into two fibre glass canoes after 2 previous occasions of robberies.

28.	In all cases including this current the accused pleaded guilty and there were no previous convictions. Previous convictions for Iro were abandoned because the last was ten years back.

29.	In evaluating the appropriate tariff the Counsel for the appellant refer to a number of cases. In R V Fraser^[16], the Court discount (20%) two years from ten years sentence. The appellant intimate a guilty plea by writing to the Court before trial. In R V Skilton and Blackham^[17], 5 years sentence was reduced to 3½ on appeal because of guilty pleas. This case involves violent, planned robbery of elderly blind men. And in the case of R V Davis^[18], a discount from 16 down to 14 years (12.5%) and 14 down to 11 years (21.4%) were allowed for guilty pleas. The court found that the prosecution case was strong it could have been difficult for any defence to be run at a trial. In R V Pitemama^[19] 25% discount from 4 to 3 years imprisonment with the accused having 32 previous convictions.

30.	Having found the Principal Magistrate erred in both grounds of appeal on the reasons I have stated above, I therefore quashed the sentence. There should not be any difference in the sentence between the appellant and co-accused that was present with him and armed. At equal basis the appellant should be given discount on the outset. He must be given some discount percentage for his other mitigating factors which the record shows they were omitted and were not taken into account.

31.	In all, I therefore quashed the sentence imposed by the Principals Magistrate and impose a substitute sentence as follows.

	Orders of the Court.

	1.			Allow the appeal.

	2.			Quash the sentence of the Magistrates Court of 4 years 4 months imprisonment to be substituted to 3 years and 4 months.

	The Court.

High Court of Solomon Islands

Oiofa v Regina [2012] SBHC 66; HCSI-CRC 506 of 2011 (27 July 2012)