R v Happy [2018] SBHC 102; HCSI-CRC 472 of 2018 (4 December 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Happy
Citation:
Date of decision:	4 December 2018
Parties:	Regina v Garry Mamane Happy
Date of hearing:	29 November 2018
Court file number(s):	CRC 472 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:	Magistrate Courts
Order:	1) The sentence of 40 days is set aside, 2) The few days already in custody or sentence served would be sufficient as penalty, for the accused in this case, 3) The accused is released; 4) No further orders.
Representation:
Catchwords:
Words and phrases:
Legislation cited:	Liquor Act, The Penalties Miscellaneous Amendment Act 2009
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 472 of 2018

REGINA

v

GARRY MAMANE HAPPY

Date of Hearing: 29 November 2018
Date of Judgment: 4 December 2018

Mr B. Ifuto’o for the Appellant
Mr I. Kekou for the Crown

RULING

Introduction

Maina PJ: The Appellant Garry Mamane Happy appealed against the Magistrate Court’s sentence of 40 days imprisonment on the charge of consuming liquor in the public place contrary to section 65 of the Liquor Act (Cap 33).

The ground of appeal is that the Learned Magistrate erred in law by imposing a custodial sentence to the Appellant as the maximum penalty under section 65 of the Liquor Act is a fine. Appellant seeks the sentence be set aside, no further penalty be imposed and any other order that the court thinks fit.

Brief Background

The appellant appeared before the Principal Magistrate in the recent court circuit to Taro Choiseul Province on the charge of consuming liquor in the public at Taro Station, Choiseul Province.

The appellant pleaded guilty on the charge for the offence and the Principal Magistrate sentenced the appellant to imprisonment for 4o days.

The record of proceeding in the magistrate court shows that the Appellant entered guilty plea on the charge and he was convicted and sentenced to 4o days’ imprisonment. The magistrate also took into account his previous convictions under section 65 of the Liquor Act. There is no record of fine imposed nor any default order of any fine against the Appellant for the charge under section 65 of the Liquor Act.

Submissions

The counsel for the appellant submitted that this provision which the accused entered or pleaded guilty on has a penalty of fine. And so only a fine can be the penalty for his client under section 65 of the Liquor Act. And the magistrate erred in law to impose the 40 days imprisonment.

Counsel for the Crown in his submission argued that the magistrate has power to impose custodial sentence under this provision. He stated that by the practices, the courts imposed custodial sentence for default of paying fine and if the accused the previous convictions.

The law

Section 65 of the Liquor Act states:

“65. Any person found consuming liquor in any street, thoroughfare or place being part of any town area to which the public has access, whether upon payment or otherwise, not being part of any licensed premises, shall be guilty of an offence and shall be liable to a fine of two hundred dollars”

The Penalties Miscellaneous Amendments Act 2009 (No. 14 of 2009) amends the penalty of the above provision and or introduces a penalty unit system to replace monetary Penalties and related matters. Section 8 of the Act provides for the schedule and list of the Acts which include the Liquor Act as with section 65 of the Act. The penalty units for the provision or section 65 of the Liquor Act is 2000 units in monetary penalties is $2000.00.

The provision in section 65 of the Liquor Act as amended by the Penalties Miscellaneous Amendments Act 2009 (No. 14 of 2009) the penalty is shall be liable to a fine of 2000 units in monetary penalties is $2000.00.

I agree with the counsel for the appellant that any person found or pleaded guilty under section 65 of the Liquor Act, the penalty is fine unless in default of a fine, or an imprisonment will be served by the accused. And the default period is as provided by the Penalties Miscellaneous Amendments Act 2009 at section 2.

With this appeal by the appellant, it is obvious that the magistrate had erred in law to impose or sentence of imprisonment 40 days for the accused at the first instance unless upon default of the fine. And I allow the appeal.
ORDERS

1. The sentence of 40 days is set aside,
2. The few days already in custody or sentence served would be sufficient as penalty, for the accused in this case,
3. The accused is released;
4. No further orders.

THE COURT
................................................
Justice Leonard R Maina
Puisne Judge