Regina v Tom [2017] SBHC 129; HCSI-CRC 20 of 2017 (6 September 2017)

REGINA

V

OLOGA TOM

IN THE SOLOMON COURT OF APPEAL

Criminal Jurisdiction

(KOUHOTA; PJ)

Criminal Appeal Case No. 20 of 2017

Date of Hearing: 25^th August 2017

Date of Judgment: 6^th September 2917

Counsel for the Appellant: Mr Fugui H

Counsel for the Crown: Mr Fakarii M F

JUDGMENT

Kouhota PJ:

Introduction

The appellant Tom Ologa pleaded guilty to two counts of the offence of Restriction on making liquor contrary to section 50(2)(b) and section 50 (2) (c) of the Liquor Act before the Magistrates Court on 15^th December 2016. He was convicted and sentenced by the learned Principal Magistrate Augustine Aulanga on 20^th December 2016

The first conviction related to an offence committed on 17^th October 2013, the second conviction relates to an offence committed on 14^th November 2016. The learned Principal Magistrate sentence him for the first count to 1 ½ years’ imprisonment and 2 years for the second count and order the sentences to run consecutively.

The appellant appealed to this court against both sentences on the following grounds and submits;

1. That the sentence imposed by the learned sentencing Principal Magistrate was manifestly excessive.
   
2. That the learned sentencing Principal Magistrate erred in law in failing to take into consideration the appellant’s guilty pleas and his clean criminal record.
   
3. That learned sentencing Principal Magistrate erred in law in imposing a custodial sentence on the appellant for 2 offending when imposing a fine would have been appropriate in the circumstances, having regard to other similar cases and consistency of sentencing thereto.
   
4. That the learned sentencing Principal Magistrate erred in law in failing to obtain from the appellant personally regarding information on issue of his financial capacity to pay a fine if imposed and instead erroneously relied solely on the prosecution’s submission on the issue (sic)
   
5. That the learned sentencing Principal Magistrate erred in law in failing to take into consideration the deleterious effect of imprisonment where the term of imprisonment would result in the appellants loss of his job and resulting in severe hardship not only on the appellant but his extended family and dependants as well.
   
6. That the learned sentencing Principal Magistrate erred in law in failing to take into account the totality of the sentence and the ensuing hardship and unfairness in its effect where the two (2) terms of imprisonment are served consecutively.
   

I will deal with appeal grounds 2-6 first as they all alleged errors of law by the learned Principal Magistrate.

In ground 2 the appellant submits that the learned Principal Magistrate erred in law in failing to take into consideration the appellants guilty pleas and his clean criminal record. I had perused the learned Principal Magistrate’s sentencing judgment and it is true there is in no mention that he took into account the appellants guilty pleas and previous good character. It is a good and desirable practice that a sentencing magistrate should clearly state in their sentencing judgment all the relevant factors they took into account when passing sentence. This is would make it clear to the accused or an Appeal court judge why a particular sentence was imposed. Failing to expressly state this on the record gives the impression that the matters in question have not been considered even if they were in fact considered by the magistrate.

In the present case, as the learned Principal Magistrate did not expressly stated in the court record that he took into account and give credit for the guilty pleas and the previous good character of the appellant, I take into the appellant’s favour that no allowance was given for the guilty pleas and previous good character. This is a serious error as it affects the type of sentence and the length of the sentences that he imposed. This ground of appeal is allowed. I will return to this later in this judgment when I consider the 1^st ground of appeal.

With regard to the 3rd ground of appeal, the penalty for the offences for which the accused was convicted are stipulated under the Liquor Act, Cap 144, they are; a fine of $1200 or 3 years imprisonment or both such fine and imprisonment. Parliament increases the fine from $1,200 to $1500.00 under the Penalty Miscellaneous Amendment Act, 2009. The imprisonment penalty however, remains the same. The learned Principal Magistrate therefore has the discretion to impose any of the sentences provided by law after considering all the factors and the circumstances of the case. In the present case there is no error in law if he imposed a sentence of imprisonment as that is one of the sentences available in law.

The learned Principal Magistrate has the discretion to depart from the sentences previously imposed for past similar cases if after taking into account all the circumstances of the case he had reasons to do so. In this case the learned magistrate considered that a deterrent sentence is appropriate having regard to the prevalence of the offence and to protect the society from the harms of kwaso hence unless the learned Principal Magistrate applied the wrong principle or take into account irrelevant factors an appeal court would not easily interfere with his discretion. In Berekame V Director of Public Prosecution CA- CRAC 2 of 1986, the Court of Appeal held that “a court of appeal will not interfere with the trial judge’s discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because, for instance, the trial judges has acted on a wrong principal or clearly understated or overstated or misunderstood some salient feature of evidence “Ground 3 is dismissed.

With regard to the 4^th ground of appeal, the law does not require nor is it as a matter of practice that the information regarding the accused earnings or the ability to pay his fine must come from the accused personally. In practice the accused person’s personal information would already be in the possession of the prosecutor in the accused antecedent history usually recorded by the police investigators and the prosecutor would normally produce this to the Magistrate court. It is however, still open to the accused person to inform the court of anything he wish the court to take into account. It is advisable however, that when an accused is unrepresented the magistrate must give him the opportunity to do so.

With regard to other issues raised in submission under the 4^th ground of appeal, I think the learned Principal Magistrate erred when he consider how much the accused earns as a basis to determine whether he should impose a sentence of a fine or imprisonment. The sentence should be based on the seriousness of the offence together with the mitigating and aggravating factors and other circumstances surrounding the offence and the offender but it is an error to impose a custodial sentence just because the court feels that the accused would not be able to pay his fine if a fine is imposed on him. In Solomon Islands cultures, even if the accused had no money, relatives would normally assist him pay his fine. In the end however, the sentence of imprisonment imposed is well within the learned sentencing Principal Magistrates discretion hence I see no reason why this court should interfere his discretion.

All that can be said with regard to the 5^th ground of appeal is, that it is ill conceived, paragraph 18 of the learned Principal Magistrate’s sentencing judgment clearly showed that he took into consideration the effect the appellant incarceration will have on his family but as the learned Principal Magistrate correctly pointed out, these are matter that the appellant should considered before embarking on committing the offences. The 5^th ground is dismissed.

With regard to the 6^th ground of appeal, the learned magistrate took the correct approach in considering the appropriate sentence and I see no reason why this court should interfere with his decision.

I now turn to the first ground of appeal. The 1^st ground of appeal is that the sentence imposed by the learned principal magistrate is manifestly excessive. To determine whether the sentence is manifestly excessive the appeal court took into account the guilty pleas, the appellant previous good character the mitigating and aggravating factors as well as the seriousness of the offence and the maximum penalty for the offences. The maxim penalty for each of the offences for which the appellant was convicted is a fine of $1500.00 or 3 years imprisonment or both such fine and imprisonment. The penalty is not $30,000 fine as erroneously stated by the learned Principal Magistrate. I do not have a hard copy of the Penalty Miscellaneous Amendment Act 2009 but the copy that is on paclii stated the fine to be $1,500.00. In the present case, by erroneously believing that the penalty was $30,000 fine the learned Principal Magistrate consider the offence more serious than it actually was. This coupled with not giving credit for the guilty pleas and the appellant previous good character, the learned Principal Magistrate was led to impose a higher sentence of imprisonment than he would have imposed if he is aware of the correct penalty and given credit where it was due.

Having said that, I still consider it is well within the learned Principal Magistrate discretion to impose a custodial sentence on the appellant except that a short imprisonment sentence should have been more appropriate considering the guilty pleas and previous good character of the appellant. In this instance however, it is apparent that the learned Principal Magistrate overstated the penalty for the offence and fail to take into account important matters that he should take into account hence it is incumbent on this court to review the sentence. That I do, but having regard to the learned Principal Magistrate comments in paragraph 16 and 17 of his sentencing judgment, I do not consider that a custodial sentence imposed on the appellant were inappropriate or wrong in principle except that that they are excessive in the circumstance. The 1^st ground of appeal is allowed to that extent. The sentences imposed on the appellant are quashed and substituted with the following sentences;

Count 1: 6 month’s imprisonment

Count 2: 9 months imprisonment. The sentences will remain consecutive, however since the appellant had already served a substantial part of his sentence I order that he should be released forthwith.

Right of appeal to the Court of Appeal.

The Court

..........................................................

Emmanuel Kouhota

Puisne Judge