Regina v Columbus [2017] SBHC 119; HCSI-CAC 06 of 2017 (25 September 2017)

REGINA

V

KAONI COLUMBUS

IN THE HIGH COURT OF SOLOMOM ISLANDS

Criminal Jurisdiction

Criminal Appeal Case No. 06 of 2017

Date of Hearing: 22^nd September 2017

Date of Judgment: 25^th September 2017

For the Appellant- Chite L

For the Crown: Ratu

JUDGMENT

Kouhota PJ:

The appellant Columbus Kaoni pleaded guilty to the offence of Larceny from person contrary to section 270 of the Penal Code before the Magistrates Court on 12^th December 2016. The offence carries a maximum penalty of 14 years imprisonment. He was convicted and verbally sentenced on the same day to 4 years imprisonment by the learned Principal Magistrate Augustine Aulanga. The learned principal magistrate’s written reasons was delivered on 19^th December 2016.

The appellant appealed against the sentence on two grounds

1. That the sentence imposed by the learned Principal Magistrate was manifestly excessive;
   
2. That the learned Magistrate erred in fact and in law in the discount allowed for mitigating features, including the recovery of the cell phone, the immediate guilty plea, the youth, previous good character and the remorse of the appellant.

The facts of the case were that on 10^th December 2016 a female Chinese tourist was walking along the Mendana avenue taking photographs with her Samsung mobile phone. As she reached the Heritage Park hotel area the appellant saw her, approached her, snatched her mobile phone and escaped. The complainant reported the matter to the central Police station, a searched ensued and the appellant was arrested presumably shortly thereafter. Police also recovered the mobile phone from the appellant. The mobile phone was valued at SBD $ 8,880.00

The two grounds of appeal can be conveniently dealt with together. Mr. Chite for the appellant submits that the factors outline by the learned principal magistrate cannot be regarded as aggravating factors and further that there is no evidence before the court as to the prevalence of this type of offence. He also submit that the learned magistrate did identify the mitigating factors but there is no indication as to what credit has been given for them and further submit the magistrate did not identify a starting point and the increase according to aggravating factors.

The difficulty with sentencing is that it has no mathematical formula hence while some judicial officers have adopted the formula of stating a starting point then apportioning certain percentage to mitigating factors and aggravating factors it is rather a fallacy because it will never add up as in a mathematical formula but still that is the closest we can get and it is still the approved practice.

The crown to some extent conceded that the sentence was manifestly excessive but refers the court to a number of cases where the courts have imposed sentences varying from 3 months to 2 years imprisonment.

It is clear from the sentencing judgment that the learned principal magistrate did give due consideration to the accused guilty plea and previous good character and other mitigating factors The error is I think, as counsel for appellant had submitted, the learned principal magistrate took as aggravating factors things which are not aggravating factors at all. It was noted from the sentencing judgment that the learned principal magistrate places a lot of emphasis on general deterrence rather than deterrence specific to the appellant.

For a first offender and a person of young age, the prime consideration should be on personal deterrence and rehabilitations. I however, respect the views expressed by the learned principal magistrate about the need for deterrence and sending a strong message that those who prey on and steal from innocent people enjoying a walk through the streets of Honiara will bear the consequence of their actions.

I also find his comments about the need to adjust the current sentencing practice needs to be elevated in light of prevalence in this kind of offending has some merit. But like some Church denominations the court is still one of the very few state institutions which still sticks to tradition. So while society values have changed to the extent that in some countries persons of the same sex can now legally marry each other, the courts still look to century old precedents as authorities to determine issues in this electronic age. How relevant this practice is to our modern society is open for debate.

But if sticking to the traditional sentencing considerations are having no impact or inappropriate in the modern society then we need to change, for it was said that doing the same thing again and again and expecting different results is stupidity. While there is merit in these sentiments, it still require research in those areas to see if the sentences the court are imposing are having any impact. If not and if there is evidence before the court that young people are persistently making our street unsafe by stealing from people enjoying their walk on the streets of Honiara or doing their shopping the court has a duty to protect the community by imposing sentences which reflect the community’s disapproval of such behaviour and this may well involve sentencing young first time offenders to long imprisonment terms.

In the present case however, the learned principal did not explicitly stated that there was evidence before him or that he has taken judicial notice that this offence is prevalent. The learned principal magistrate remarks in my view are not based on any evidence before the court but rather on presumptions.

When one considers the strong mitigating factors and take into account all other circumstances of this case and weight them against any aggravating factors which may exist the sentence imposed on the appellant was indeed manifestly excessive. The appeal is allowed to that extend, the sentence of 4 years imprisonment imposed on the appellant is squashed and substituted with 9 months imprisonment. Since the appellant has already served a substantial portion of the sentence I order that he be released at the rising of the court.

Right of appeal to the Court of Appeal.

Emmanuel Kouhota

Puisne Judge