Manai v Regina [2013] SBHC 6; HCSI-CRC 507 of 2011 (28 January 2013)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 507 of 2011

BEN MANAI

-V-

REGINA

HEARING: 27 July 2012
JUDGMENT: 28 January 2013

E. Cade for the Appellant
F. Taeburi for the Crown

Palmer CJ.

1. This is an appeal against the orders of the Magistrates' Court issued on 19 October 2011, in which the Appellant was convicted on two offences, of child stealing contrary to section 253 of the Penal Code and cruelty to children, contrary to section 233(1) of the Penal Code. Both offences were alleged to have been committed on or about 5 April 2009.
   
2. He was sentenced to 18 months and 12 months imprisonment respectively. Both sentences were made concurrent to each other but then ordered to run cumulative to a separate sentence of 4 years imprisonment for rape, which had been imposed by the High Court on 26 August 2011; the offence of rape had been committed on or about 6 January 2011. It was the order to have those sentences to run consecutive to the sentence of 4 years, which the Appellant appeals against as being erroneous in law on the ground of failure to properly take into account the totality principle in sentencing.
   
3. As a background to this appeal, the Appellant had been earlier charged in the Magistrates' Court on or about 9 April 2009, for arson. The offence of arson had been committed on the same day as the offences of child stealing and cruelty to children. He entered a guilty plea to that offence and was sentenced to 18 months imprisonment on 11 June 2009.
   
4. Those three offences while different were related to each other in that they were part of the same events that occurred that day. The two latter offences followed on after the arson which occurred earlier.
   
5. A further point to note is that he was not charged for those latter offences until about 27 October 2009. By then he had been released from prison after having served only six months of his sentence of imprisonment of 18 months for arson, the remainder being suspended for a term. He was then it seems released on bail thereafter and never dealt with until some two years later on 19 October 2011 when he pleaded guilty to those two offences and was sentenced to 18 months and 12 months imprisonment respectively.
   
6. In the interim period on 14 January 2011, he was arrested for an offence of rape committed on 6 January 2011 and remanded in custody. He pleaded guilty in the High Court on 17 August 2011 and was sentenced to 4 years imprisonment.
   
7. I am satisfied this appeal should be allowed on the basis that there is a manifest error on the face of the record. The manner in which the two latter charges were handled in my view is inconsistent with the right to a fair hearing within a reasonable time pursuant to section 10(1) of the Constitution. It is also inconsistent with fair prosecutorial practice that at the time he was arrested, those charges were not instituted together with the offence of arson. It would have been excusable and understandable if those offences had been committed on separate days. The facts disclosed however, show they occurred on the same day as the arson offence, albeit after some interval of time. He had taken refuge at a cousin's house and then abducted the child in an attempt to prevent further pursuit or attacks on him.
   
8. Further, the delay of almost two years to prosecute those two charges in the circumstances of this case to be inordinate. He should have been dealt with shortly after being charged on or about 27 October 2009 or when he was still serving his sentence of 18 months for the arson; those three offences should have been dealt with together. He was released from prison on 28 October 2009.
   
9. Having failed to prosecute those two offences expeditiously within a reasonable time, an order for their stay should have been made. In any event, the manifest error in the sentencing process arises from the effect of the order to make the sentences to run cumulative to the sentence of 4 years. This meant that the overall effect of the sentence for those two offences would be 5 years and 6 months (4 years plus 18 months).
   
10. When sentencing for multiple offences the court should impose what is the proper sentence in each case and order some concurrency to accord with the totality principle[1]. In DPP v. Grabovac[2] Ormiston JA said:
    

"In general a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a "crushing" sentence."

11. In the circumstances of this case, the court should have decided what the appropriate sentence in each count should be and then decide whether to have them run concurrent to each other or cumulative. It should not impose grossly inadequate sentences to accommodate the effect of cumulation by having them to run cumulative to the sentence of 4 years imposed earlier so that the overall effect of the sentences for child stealing and cruelty to child was 5 years and 6 months, which is artificially inflated and inappropriate. No suggestion has been made that the sentences of 18 months and 12 months respectively were inappropriate and the fact they were made concurrent to each meant the maximum sentence to be served would have been only 18 months. That sentence should not have been made cumulative unless exceptional grounds exist, otherwise the appropriate order to make is to have it served immediately and therefore concurrent to the current sentence.
    
12. None has been shown or demonstrated in the material before this court. I am satisfied an error of law has occurred in the sentencing process and that the appeal should be allowed, the order of the Magistrates' Court dated 19 October 2011 for the imposition of a cumulative sentence be quashed and substituted with one that it be made concurrent.
    

Orders of the Court:

1. Allow appeal and quash the order of the Magistrates' Court dated 19 October for the sentence of 18 months to be cumulative to the sentence of 4 years imposed for rape.
   
2. Substitute order that the total sentence of 18 months for those two offences to be served concurrent to the sentence of 4 years.
   
3. The total sentence to be served accordingly is 4 years.
   

The Court.

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^[1] See Ross on Crime by David Ross QC, (5^th edition) para. 19.2175
^[2] [1998] 1 VR 664; (1997) 92 A Crim R 258 (CA) Ormiston JA (leading judgement), page 680; 275.