R v Poloso [2014] SBHC 154; HCSI-CRC 258 of 2014 (21 October 2014)

IN THE HIGH COURT OF THE SOLOMON ISLANDS

HCSI-CRC 1085 of 2013
Review CRC 258 of 2014

In the Matter of a Review
of the Learned Magistrate's Sentence in

R

v

Wesley Poloso

1. On 26th June, 2014, the learned Magistrate sentenced you to imprisonment for 2 ½ years on each of two counts of obtaining money by false pretences, contrary to section 308 of the Penal Code [Cap. 26].
   
2. The sentences were ordered to be served concurrently.
   
3. In coming to his decision to sentence you to 2 ½ years, the learned Magistrate gave you a discount of 50% on each count from the maximum sentence provided of 5 years imprisonment.
   
4. However having found that an appropriate starting point was 4 years imprisonment on each count, the 50% reduction should have resulted in you being sentenced to 2 years imprisonment, not 2 ½ years imprisonment on each count.
   
5. While the magnitude of discount in the circumstances of this case is in my view too generous, it is a result which was open to the learned Magistrate to find.
   

6. In determining that the sentences should be served concurrently, the learned Magistrate relied upon the old case of Augustine Laui v Director of Public Prosecutions (Criminal Case No.11 of 1987) and in particular, the finding that the determining factor when considering consecutive or concurrent sentences is whether the offences were committed in the course of a single transaction. If there was a single transaction, then the sentences should be concurrent. If there was more than one transaction the sentences should be consecutive.

7. The learned Magistrate then decided, contrary to the submissions of the Crown, that there was only one transaction and passed concurrent sentences.
   

8. The Crown also submitted that the seriousness of the offences were an aggravating feature to be considered in deciding sentence.

9. The learned Magistrate set out in considerable detail the submissions in mitigation made by the defence, including the odd submission that the accused was "only a toy boy".

10. The results reached by the learned Magistrate seemingly have been influenced by the defence submissions that sought to minimise and diminish the role played by the accused to that of almost an innocent or naive dupe.

11. In my judgment, the acceptance of this characterisation of the accused's role by the defence is a serious error. The accused was the person who set up the bogus company, created the bank account for the bogus company, used the company name to fraudulently obtain two large amounts of money, used the bank account to obtain access to the money and was himself the person who withdrew the money from the account. He has not returned the money.

12. Far from playing a minor or insignificant role as suggested by the defence, he played a pivotal role without which these frauds could not have been committed. He was indispensable to the success of the crimes.

13. Furthermore, while simply citing the Crown's submission relating to the seriousness of the offence, nothing that appears in the learned Magistrate's sentencing remarks demonstrates that he in anyway took proper regard of the true seriousness of these offences.

14. Not only are these two offences in themselves serious thefts of large amounts of money from the government and people of Solomon Islands, there is nothing to indicate that the learned Magistrate appreciated the serious consequences to the international reputation of the Solomon Islands to have donor money blatantly stolen from the intended recipients. Almost $1.6 million has disappeared. He neither comments upon the damage that such an incident can cause to international relations and to the prospect of receiving further international aid nor does he comment upon the hardships caused to those who were entitled to receive the benefit of those funds.

15. In my judgment the learned Magistrate has made several errors. First, he incorrectly discounted the maximum sentence of 5 years rather than discounting what he determined to be the appropriate starting point of 4 years imprisonment.

16. Second, he mistakenly acceded to the defence submission that there was only one transaction. The circumstances however clearly demonstrate two successful attempts to obtain very large sums of money. They related to two different projects, in different parts of the country, with two separate applications made at different times, with the payment of two separate and differing amounts paid at differing times. The sentences should have been ordered to be served consecutively.

17. Third, the learned Magistrate has placed too much weight on the defence submission that the accused was "only a toy boy". Whatever the defence meant by that submission, it is clear that the inference that the Court was meant to draw was that the accused played only a minor part in these frauds which obtained almost $1.6 million. Nothing could be further from the true position. Without his participation, there would have been no fraud.

18. Fourth, the learned Magistrate failed to place sufficient weight on the seriousness of the offences. Not only the seriousness in terms of the criminality of the act, but also of the significant and serious consequences to the international standing and reputation of the Solomon Islands together with the hardships caused to the intended beneficiaries.

19. For these reasons I set aside the sentences passed by the learned Magistrate. I respectfully agree with the starting point of 4 years imprisonment as stated by the learned Magistrate. While I would have discounted the sentence by between 30%-40%, I accept that it was open for the learned Magistrate to discount the sentence by 50%.

20. As a result, I sentence the accused to 2 years imprisonment on each count, such sentences to be served consecutively.

Order:
The accused is sentenced to two years imprisonment on both counts with the sentences to be served consecutively. The total term of imprisonment is therefore 4 years.

THE COURT