Dola v R [2021] SBHC 150; HCSI-CRC 554 of 2021 (22 December 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Dola v R
Citation:
Date of decision:	22 December 2021
Parties:	Jack Dola v Regina
Date of hearing:	23 November & 14 December 2021
Court file number(s):	554 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:	Central Magistrate Courts
Order:	i) The appellant’s application for leave is granted nunc pro tunc; ii) Appeal allowed; iii) The imprisonment term of 12 months imposed by the Magistrates Court is set aside and substituted by a fine of $500.00 in default an imprisonment of 20 days. iv) Fine to be paid by 12 noon on the 24th December 2021 v) Right of appeal
Representation:	Mr Bobby Harunari for the Appellant Mr Steward K Theophilus Tonowane for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Emergency Powers (Civid-19) (No.2) (Honiara Emergency Zone) (Restriction of Movement) Order 2021 and Regulation 15 (1) (a) (2) and (4) of the Emergency Powers (Covid-19) (No. 2) Regulations 2021 Clause 4 (1) and (2) (a) and (b)
Cases cited:	Reef Pacific Trading Ltd v Price Waterhouse [1999] SBHC 72, Emmanuele v Australian Security Commission [1996-1997] 188 CLR 115,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 554 of 2021

JACK DOLA

V

REGINA

Date of Hearing: 23 November & 14 December 2021
Date of Decision: 22 December 2021

Mr Bobby Harunari for the Appellant
Mr Steward K Theophilus Tonowane for the Responded

RULING ON APPEAL

Bird PJ:

1. The appellant Mr Jack Dola appeals against the sentence of 12 months imprisonment imposed by the Central Magistrate Court subsequent to pleading guilty to the offence of restriction of movement in Honiara contrary to Clause 4 (1) and (2) (a) and (b) of the Emergency Powers (Civid-19) (No.2) (Honiara Emergency Zone) (Restriction of Movement) Order 2021 and Regulation 15 (1) (a) (2) and (4) of the Emergency Powers (Covid-19) (No. 2) Regulations 2021.
2. In the petition of appeal filed on the 23^rd September 2021, two appeal grounds are set out. When the appeal was argued on the 23^rd November 2021, three grounds of appeal were advanced by the appellant. The court was not advised by counsel for the appellant and the respondent of any amendment to the petition of appeal. Whilst perusing the file and in the process of considering its ruling, it became apparent to the court that the grounds of appeal on the petition of appeal do not correspond with the appeal grounds on the filed submissions from both counsel. The court then invited further submissions from counsel on that issue and on the issue of s. 286 (4) of the Criminal Procedure Code.
3. Further submissions were made in court on the 14^th December 2021. The crux of submissions from the appellant is that this court in its inherent jurisdiction is entitled to grant leave to amend the petition of appeal. They further submitted that the court can also grant leave nunc pro tunc upon the basis that leave could have granted previously.
4. Section 286 (4) of the CPC requires the filing of an amended petition by the appellant 3 days before the hearing of the petition. That was not done in this case. The appellant’s submission was filed on the 26^th October 2021 containing 3 grounds of appeal. The respondent had filed reply submissions on the 22^nd November 2021 also canvassing the three grounds of appeal on the appellant’s submission. No issue was raised by the respondent in their written submissions as well as during the hearing of the appeal on the 23^rd November 2021 about the difference in the petition of appeal and filed written submissions. In fact both parties were ready for the hearing and hearing proceeded as listed.
5. Counsel for the appellant had referred to cases in which the court had granted leave notwithstanding leave was not previously sought. In the case of Reef Pacific Trading Ltd v Price Waterhouse [1999] SBHC 72, this court had confirmed the Court’s power to rectify procedural errors by making nunc pro tunc orders. In that case, this court had adopted the view of the court in the case of Emmanuele v Australian Security Commission [1996-1997] 188 CLR 115. Also in the case of Kelly v Regina [2006] SBCA 17, CA-CRAC 019 of 2006, leave was granted by the Court of Appeal during the hearing of the appeal in which an appeal against conviction was raised by the court.
6. In light of the above cases, I am able to grant leave nunc pro tunc to the appellant to amend their petition of appeal filed on the 23^rd September 2021 and include appeal ground 3 as enunciated in their filed submissions dated 26^th October 2021.
7. I will now discuss the appellant’s grounds of appeal as amended. The appellant’s first ground of appeal is a complaint that the sentence of 12 months imprisonment imposed by the Magistrates Court is manifestly excessive. The maximum punishment codified under the relevant laws for the type of crime that the appellant is charged with is one of a fine of $15,000.00 and or 5 years imprisonment. In view of the maximum punishment that could be imposed by the court, an imprisonment term of 12 months is not unlawful because it falls within the lower range of punishment.
8. Having stated that, it must also be noted that the punishment imposed by the court in any particular crime must be proportionate to the facts and circumstances of each offending. The type of offending for which the appellant is charged is a particularly new offence created under the powers of the State through a State of Public Emergency due to the likely threat posed by covid-19 and delta variant.
9. It was submitted on behalf of the appellant that the learned Magistrate should only have taken into account the level of seriousness of the offence. It was submitted that on the facts of the case, the case was less serious and the learned Magistrate could have imposed a fine on the appellant. It was further submitted that at the time of the offending, there was no community transmission of covid-19 or the delta variant so that the appellant had posed a risk of transmitting it to other citizens. It was further submitted that the learned Magistrate had failed to take into account the material circumstances of the case and imposed a custodial sentence.
10. On behalf of the respondent, it was submitted that it was within the powers of the learned Magistrate to impose a custodial sentence of 12 months in the circumstances. Case authorities were referred to by counsel in support of their argument.
11. I am minded to state that appeal ground 2 can properly be dealt with by merging it with appeal ground 1. That ground of appeal talks about the disparity of sentences imposed by the Magistrates Court on similar offences. A whole lot of similar cases disposed of by the Magistrates Court on similar charges were referred to by counsel for the appellant. In those various cases, the offenders were punished by way of fines and conditional discharge. The fines imposed ranged from $300.00 to that of $1,000.00 and in default an imprisonment for a number of days.
12. It is therefore important to note that there must be consistency and conformity of sentencing by the courts in similar crimes. I am aware that an order or sentence of another Magistrate is not binding but only persuasive. Notwithstanding, it would be prudent for the Magistrate Court to take note of the comments of other Magistrates on similar crimes and to explain to offenders, why a custodial punishment was unavoidable in their case. The courts are dealing with the accused personal liberty and they must fully understand why they are imprisoned.
13. I can understand that we should not underestimate the threats of covid-19 and delta variant being transmitted into the communities. That would have been devastating for our country. Aside from that issue, each case must be necessarily dealt with by its own facts and circumstances. As previously stated in this ruling, this is a particularly new crime introduced this year to cover the period of the State of Public Emergency.
14. Taking into account that aspect of the crime and the particular circumstances of this case, I am of the view that a custodial sentence of 12 months imprisonment is manifestly excessive. I can also say that there must be conformity of sentences for similar offences by the Magistrates Court. If a term of imprisonment is justified in the particular circumstances of each case, that should have been explained by the learned Magistrate. Appeal grounds 1 and 2 are hereby allowed.
15. Appeal ground 3 is premised on the issue that the learned Magistrate erred in failing to consider other sentencing options prior to imposing a sentence of immediate imprisonment. Save as it is lawful for the learned Magistrate to impose a custodial sentence, I must reiterate that the sentence that should be imposed by the court in any particular case must depend on the facts and circumstances of each case.
16. In paragraph 14 of his sentence, the learned Magistrate had taken into account the option of payment of fines. He was nonetheless unconvinced that the appellant had the capacity to pay a fine. I must repeat here that the court could have enquired of counsel if the appellant had the capacity to pay a fine. In the absence of that evidence, it is not proper that a substitute sentence of imprisonment is imposed. In any event if a fine had been imposed and the appellant was unable to pay then the in default part of the orders kicks in. I therefore allow ground 3 of the appeal by the appellant. In lieu therefore I make the following orders:
    1. The appellant’s application for leave is granted nunc pro tunc;
    2. Appeal allowed;
    3. The imprisonment term of 12 months imposed by the Magistrates Court is set aside and substituted by a fine of $500.00 in default an imprisonment of 20 days.
    4. Fine to be paid by 12 noon on the 24^th December 2021
    5. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge