R v Kavei [2019] SBHC 69; HCSI-CRC 143 of 2017 (22 July 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kavei
Citation:
Date of decision:	22 July 2019
Parties:	Regina v Jeffrey Kavei
Date of hearing:	19 July 2019
Court file number(s):	CRC 143 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Mwanesalua; DCJ
On appeal from:
Order:	Convict the defendant of the offences of false pretence and impose sentence as follows: (i) Counts 1, 2, 6, and 9: 3 years each; (ii) Counts 3, 5, 8, 10, 11: 2 years each; and (iii) Counts 4, 7, and 12: 2½ years each. Convict the defendant of the offence of operating an unlicensed financial institution and impose a sentence of 2 years for count 13. Direct that the sentences imposed under counts 1 and 3 to be made consecutive to each other giving a total sentence of 5 years. Direct that the sentences imposed under the remaining counts are to be made concurrent to those sentences. Direct that the period spent in pre-trial custody is to be deducted from the sentence of 5 years. Further direct, that a substantial part of the sentence having been served, he is to be released at the rising of the Court.
Representation:	Ms. E. Rizzu for the Crown Mr. B Alasia for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Financial Institution Act 1998, s3 (2) (a), Penal code s308 (a) (cap 26)
Cases cited:	Edward Fiuadi v Regina [1989] SBHC 17 Regina v Idris [2008] SBHC 29 Regina v Poloso [ 2004] SBHC 154 Regina v Davies [2011] SBCA 8 Regina v Maenua , Hora v Regina

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 69 of 2018

REGINA

V

JEFFREY KAVEI

Date of Hearing: 19 July 2019
Date of Ruling: 22 July 2019

Ms. E. Rizzu for the Crown
Mr. B Alasia for the Defence

1. The defendant, Jeffrey Kavei is charged with twelve counts of False Pretence contrary to section 308(a) of the Penal Code (cap. 26), and one count of carrying on banking business while not being licensed as a financial institution, contrary to section 3(2)(a) of the Financial Institution Act 1998. He entered a guilty plea when re-arraigned on 4^th July 2019. However, much earlier on, he had indicated a possible guilty plea at a call over on 12 April 2019. I will take that into account in this sentence.
2. The brief facts of the case showed that from about January 2014 to January 2015, he was engaged in fraudulent activities, obtaining money from numerous persons around the area he lived in at GPPOL, convincing them that an interest of about $700 would be paid on top of each payments with big profits for those who participated in that form of investment he was promoting; a scheme akin to a pyramid money scheme with promises of high returns but in reality with little or nothing to show for it.
3. There were a total of about nine persons who are the subject of the charges in this case. The money swindled came to a total of about $68,600.00. None of it or any interest promised had been paid back to the complainants.
4. The moneys obtained ranged from $400 to $14,200 in some instances. During that time, he operated this scheme under guise of a business name “GPK Investment”. He did not have any license to conduct such activity.
5. It is pertinent to note that this matter should not have been committed to the High Court for trial for the reason that the charges of false pretence (a misdemeanour), carrying a maximum sentence of 5 years if convicted, and operating an unlicensed financial institution, carrying a maximum sentence of imprisonment of 3 years, if convicted, fall squarely within the jurisdiction of a Principal Magistrate and therefore could have been dealt with timely in the court below. I remind Magistrates and Counsel taking carriage of such matters to be more vigilant so as to avoid unnecessary delay in the disposal of such matters by having them committed to this Court.
6. I note the defendant initially entered a not guilty plea but after taking instructions in or about April 2019, indicated a possible guilty plea on the charges, which set in motion process of negotiations and discussion between Counsel and resulting in a plea taken on 4 July 2019, in which he entered guilty pleas to all 13 counts.
7. I accept this has saved time, expense and is demonstrative of remorse on his part. Due credit is given for this.
8. I note his personal circumstances, he is married with four children and indications that his wife is disabled, which I note would have made things quite difficult for her to manage the children on her own since his incarceration in remand.
9. I note aggravating features referred to by Ms. Rizzu, of Counsel for the Crown, which included the following. Ms. Rizzu described the activities of the defendant to be pre-meditated, cynical and despicable, in defrauding complainants who readily parted with their money based on his false promises. He sought to legitimise those activities by providing receipts which had the name “GPK Investment” stamped on them.
10. I couldn’t agree more. He knew it was a sham from the outset and yet persisted in those activities without any sense of shame and guilt to take money from vulnerable victims, who were prepared to trust him for his assurances.
11. Secondly, that this amounted to a breach of trust of relationship between the client and him. Ms. Rizzu referred to the case of Edward Fiuadi v Regina^[1], in which Ward CJ as he then was, pointed out:
    • “Any offence of dishonesty is serious but, when it is committed by a person in a position of trust in breach of the trust placed in him, it is more serious.”
    • His Lordship continued: “It must be clearly understood that, in any offence where a breach of trust is involved, a sentence of imprisonment will always be appropriate.”
12. I couldn’t agree more, that a sentence of immediate imprisonment will equally apply in this case.
13. I note as well that the offences were committed over a period of time. They were not a spur of the moment act, or occurred over a short span of time and desisted with; it is obvious he had time to think over carefully and implemented.
14. I accept there were multiple victims and involved substantial sums of money, totalling some $68,600.00.
15. Finally, I note there has been no restitution or recovery of the monies obtained. Some have lost substantial sums of money.
16. In mitigation, I note the following matters raised by Mr. Alasia, of Counsel for the defendant. First, that he is a first offender and has no previous convictions. Secondly, his change of plea, which has saved court time and resources. I give due credit for both.
17. I accept as well his guilty plea which is consistent with remorse, and an acknowledgement of his culpability and being sorry for what he had done.
18. Finally, the delay in timely prosecuting and progressing this matter through after committal to this Court. I note he has been in custody since 26 November 2015. He was committed to the High Court on or about 31 March 2017. I note at the court below he was represented by Mr. Alasia.
19. After committal, no information was filed until on or about 18 January 2019, when the matter was then listed for the first call over on or about 1^st March 2019. He has been in remand at Rove Correctional Centre for almost two years without any movements on his case. The delay is unacceptable. I remind all stakeholders, including the Registrar, the Director of Public Prosecutions and the Public Solicitor, that they are duty bound to ensure such committals do not lie forgotten in the High Court Registry. I give credit and will allow appropriate discount for that delay in the sentence to be imposed.
20. I have been referred to a number of comparative sentences in similar situations, Idris v. Regina^[2], Regina v. Poloso^[3], Regina v. Davies^[4], Maenua v. Regina^[5], Hora v. Regina^[6], which indicate a range of sentences from 1 – 4 years imprisonment for the offences of false imprisonment. For the offence of conducting banking business without a licence, there doesn’t appear to be any case authority in this jurisdiction.
21. Balancing all factors in mitigation and aggravating features referred to, I am satisfied the following sentences can be imposed. For each of the offence of false pretence, I am satisfied the following sentences can be imposed:
    • Counts 1, 2, 6, and 9: 3 years each;
    • Counts 3, 5, 8, 10, 11: 2 years each; and
    • Counts 4, 7, and 12: 2½ years each.

For the offence of operating an unlicensed financial institution, I am satisfied a sentence of 2 years can be imposed.

22. Taking into account the totality principle and noting that if each of the sentences are to be made consecutive (resulting in a total of 29½ years), will have the effect of a crushing sentence on him. Balancing the principles of deterrence, retribution, prevention and rehabilitation as much as is possible in the circumstances of this case, I am satisfied an appropriate sentence should be 5 years. This in my view should accurately reflect those principles of deterrence and retribution in this case as well as taking his personal and mitigating circumstances into account. The sentence of 3 years for count 1 and two years for count 3 accordingly are to be made consecutive to each other, while the rest of the sentences for the remaining counts are to be made concurrent to those sentences.
23. I note concerns expressed in the common occurrences of this type of offences by cunning tricksters taking advantage of the weak and vulnerable members in the community who sadly readily fall prey to such persons resulting in the loss of hard earned money in the hope of quick and easy returns. In spite of warnings being issued by the police and banks to the public about these type of “quick get rich money schemes”, members of the public continue to be caught out by such tricksters. The Courts can only send out a clear message that those involved in this type of crime will expect an immediate and lengthy custodial sentence to be imposed.
24. In the particular circumstances of this case, I note the defendant as from 26 July 2019 will have served 3 years and 8 months in pre-trial custody, waiting for his case to be determined. While this is too long a period to be held in pre-trial detention, I note too that a substantial part of his sentence would have been served and accordingly I am also satisfied he should be released at the rising of the court. I direct that the period spent in pre-trial custody is to be deducted from his sentence of 5 years.
25. The defendant has a right of appeal if aggrieved by this sentence.

Orders of the Court:

1. Convict the defendant of the offences of false pretence and impose sentence as follows:
   • (i) Counts 1, 2, 6, and 9: 3 years each;
   • (ii) Counts 3, 5, 8, 10, 11: 2 years each; and
   • (iii) Counts 4, 7, and 12: 2½ years each.
2. Convict the defendant of the offence of operating an unlicensed financial institution and impose a sentence of 2 years for count 13.
3. Direct that the sentences imposed under counts 1 and 3 to be made consecutive to each other giving a total sentence of 5 years.
4. Direct that the sentences imposed under the remaining counts are to be made concurrent to those sentences.
5. Direct that the period spent in pre-trial custody is to be deducted from the sentence of 5 years.
6. Further direct, that a substantial part of the sentence having been served, he is to be released at the rising of the Court.

The Court.
Sir Albert R. Palmer CBE

---

^[1] [1988-1989] SILR 150 per Ward CJ at page 152
^[2] [2008] SBHC 29; HCSI-CRC 108 of 2008 (3 July 2008);
^[3] [2014] SBHC 154; HCSI-CRC 258 of 2014 (21 October 2014);
^[4] [2011] SBCA 8; CRAC no. 15 of 2010 (9 May 2011);
^[5] [2004] (Unreported);
^[6] [2005] (Unreported) CRAC no. 454 of 2004