R v Ofonau [2021] SBHC 45; HCSI-CC 521 of 2018 (21 May 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Ofonau
Citation:
Date of decision:	21 May 2021
Parties:	Regina v Timothy Ofonau
Date of hearing:	18 May 2021
Court file number(s):	521 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird PJ
On appeal from:	Magistrates Court
Order:	1. The appeal against sentence is allowed. 2. The subsequent sentence of the Magistrate Court dated 13th March 2018 is hereby set aside. 3. The appellant may be further sentenced at the completion of the current case against him before this court.
Representation:	Mr. Daniel Kwalai for the Appellant Ms. Olivia Ratu for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] Section 233 (1)
Cases cited:	Regina v Paewa [2016] SBCA 25

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Appeal Number 521 of 2018

REGINA

V

TIMOTHY OFONAU

Date of Hearing: 18 May 2021
Date of Decision: 21 May 2021

Mr. Daniel Kwalai for the Appellant
Ms. Olivia Ratu for the Respondent

RULING ON APPEAL

Bird PJ:

1. This is an appeal by Mr. Timothy Ofonau filed on the 22^nd March 2018. The appeal was previously dealt with by the court and was never progressed since about April 2019. The matter was brought up in my list on the 26^th March 2021. The hearing of the appeal was listed on the 18^th May 2021.
2. Ms Olivia Ratu appeared for the respondent on the 18^th May 2021 and informed the court that the crown conceded to the appeal by the appellant.
3. The brief background of the case that led to this appeal is as follows:

On the 19^th January 2017, the appellant was convicted of the offence of cruelty to children contrary to section 233 (1) of the Penal Code (cap 26). He was sentenced to 2 years imprisonment and wholly suspended for 2 years.
On the 15^th December 2017, the appellant was charged with the offence of rape. Having appeared at the Magistrate Court for that subsequent offending on the 13^th March 2018, the court was informed by the prosecution about the suspended sentence imposed on the 19^th January 2017. Without further enquiries, the learned Magistrate had activated the suspended 2 years imprisonment term and ordered the appellant to serve the suspended sentence. It is on that basis that the appeal is premised.

4. Section 45 of the Penal Code (cap 26) is the relevant law on issues of suspended sentence by courts. That particular section was discussed by the Court of Appeal in the case of Regina v Paewa [2016] SBCA 25, SICOA-CRAC 8 of 2016. The said court had given guidance on what the courts would do if they are faced with issues of suspended sentences.
5. The essence of the above case is that once the court is faced with the issue of a suspended sentence, the correct way to deal with that issue is to make sure the new case is dealt with and finalised by the said court before the same court is entitled to deal with the suspended sentence. In their words, the court stated that “the court should first deal with the sentence for the new offence and then consider the suspended sentence under section 45”.
6. In view of the provisions of section 45 of the Penal Code together with the guidelines set forth by the Court of Appeal in the Paewa case, it should become reasonably clear to everyone as to the correct procedures that must be followed by the courts in cases of suspended sentences of accused persons.
7. The appeal is allowed. The subsequent sentence of the learned Magistrate dated 13^th March 2018 is hereby set aside. The appellant may be further sentenced upon completion of the current case against him before this court.

Orders of the court

1. The appeal against sentence is allowed.
2. The subsequent sentence of the Magistrate Court dated 13^th March 2018 is hereby set aside.
3. The appellant may be further sentenced at the completion of the current case against him before this court.

THE COURT
Justice Maelyn Bird
Puisne Judge