Prasad v Regina [2013] SBHC 3; HCSI-CRC 505 of 2011 (6 February 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 505 of 2011

JIMMY PRASAD

-V-

REGINA

Date of Hearing: 6 February 2013
Date of Judgment: 6 February 2013

Ms Martha Manaka for the Appellant
Ms Sirepu Ngava for the Respondent

APPEAL AGAINST SENTENCE:

Ground 1: That the learned Magistrate erred by imposing a sentence in excess of the jurisdictional limit of the Court.

Ground 2: That the learned Magistrate failed to properly apply the totality principle.

Ground 3: The sentence is manifestly excessive.

Reasons for Judgment
PALLARAS J:

[1] The Appellant was convicted on his plea to 4 counts of attempted rape and 13 counts of indecent assault in relation to three separate Complainants.

[2] Two of the Complainants were the young daughters of the Appellant and the third Complainant was the sister in law of the Appellant.

[3] The Appellant was sentenced to a total of 21 years imprisonment with 6 years of the term to be suspended upon entering into a bond in the sum of $500 to be of good behaviour for 3 years, leaving a total of 15 years imprisonment to serve.

Ground 1:

[4] Section 27 (1) of the Magistrate's Court Act [Cap 20] provides that –

(1) Subject to the provisions of any other law for the time being in force, a Principal Magistrate's Court shall have jurisdiction to try summarily any criminal offence –

(a) for which the maximum punishment prescribed by law for such offence does not exceed –

(i) fourteen years imprisonment; or

(ii) a fine; or

(iii) both such imprisonment and such fine; or

(b) in respect of which jurisdiction is by any law expressly conferred upon a Principal Magistrate's Court or it is expressly provided that such offence may be tried summarily:

Provided that the maximum punishment which a Principal Magistrate's Court may impose shall not exceed –

(i) a term of imprisonment for five years; or

(ii) a fine of one thousand dollars; or

(iii) both such imprisonment and such fine.

[5] A similar provision relating to the Principal Magistrate's sentencing jurisdiction is also to be found in section 7 (1) of the Criminal Procedure Code {Cap 7].

[6] Section 9 of the Criminal Procedure Code provides that –

(1) When a person is convicted at one trial of two or more distinct offences the court may sentence him, for such offences, to the several punishments prescribed therefor which such court is competent to impose; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences it shall not be necessary for a Magistrate's Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court:

Provided that the aggregate punishment shall not exceed twice the amount of punishment which such Magistrate's Court is competent to impose in the exercise of its ordinary jurisdiction.

(3) For the purposes of appeal or confirmation the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.

[7] It seems clear that the various pieces of legislation provide that a Magistrate may impose consecutive sentences for two or more offences, up to a total of twice the Magistrate's normal sentencing jurisdiction, that is, in the case of a Principal Magistrate, 10 years imprisonment, or $2,000, or both.

[8] The sentence imposed by the learned Magistrate in this case of 21 years is clearly beyond the jurisdictional limit of the Magistrate's Court and is ultra vires. The appeal must therefore succeed on this Ground.

Ground 2:

[9] Both parties ultimately agreed during the hearing of the appeal before me that the learned Magistrate did address the issue of totality and indicated as much in his judgement. The Appellant's complaint then shifted more to the result of the process adopted by the learned Magistrate rather than the process itself.
This Ground is therefore dismissed.

Ground 3:

[10] The Appellant's submission on this ground was not that on the facts of the case the penalties imposed were manifestly excessive but rather that because the jurisdictional limit of the Court was exceeded then, ipso facto, the penalty was manifestly excessive. While this might follow as a matter of logic, it is not the usual manner in which a claim of a sentence being "manifestly excessive" is brought before this Court.

Typically, it is submitted that based on the facts of the instant case, having regard to aggravating and mitigating features and other case authorities, the total sentence represents an unjust and unfair result. This was not submitted before me by the Appellant who contented himself with arguing the jurisdictional point.

[11] Given the nature of this submission put by the Appellant and my finding that the sentence imposed was in excess of the jurisdiction of the Court, it is not necessary for me to finally decide this point. However I do indicate for future guidance, that had the submission followed the typical course that the sentence was manifestly excessive for the reasons mentioned, I would have had no hesitation in dismissing the Ground. I find that I am in complete agreement with the learned Magistrate's assessment of the criminality of this offending and his reasons for so finding. Indeed a strong submission can be made that, in terms of the individual sentences passed on each count, the Appellant was treated leniently.

[12] In this regard I note that both parties, after being invited to address the Court on the point, agreed that the learned Magistrate was in error in failing to take into account in his sentencing remarks the fact that each subsequent offence was aggravated by the fact of the previous like offence and that the penalties imposed might each have reflected this circumstance of aggravation. This would have been likely to result in the individual sentences for the latter offences being higher than those which were in fact imposed.

[13] As a result of these findings I make the following Orders –

1. The appeal is allowed on Ground 1.

2. Ground 2 is dismissed.

3. The case is remitted back to the Magistrate's Court for, at the discretion of the Principal Magistrate –

(a) re-sentencing, or

(b) applying the provisions of section 208 of the Criminal Procedure Code [Cap 7] to commit the Appellant to the High Court for sentencing.

THE COURT