R v Fakani [2021] SBHC 65; HCSI-CRC 554 of 2015 (21 May 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Fakani
Citation:
Date of decision:	21 May 2021
Parties:	Regina v Frank Fakani
Date of hearing:	14 May 2021
Court file number(s):	554 of 2015
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant is convicted and sentenced to nine months’ imprisonment. 2. The whole of the sentence is to be suspended for 12 months pursuant to section 44 of the Penal Code. 3. Section 44(6) has been complied with.
Representation:	Mr A Kelesi for the Crown Mr H Fugui for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code 387, 215, 44 (6) 45
Cases cited:	Public Prosecutor v Tenene [2018] VUSC 261, Patterson Runikera v DPP, State v Niume [2011] FJH, Regina v Oge [2004] SBHC 72, Regina v Gwali [1999] SBHC 10, Kyoi v Reginam [2004] SBHC 90

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 554 of 2015

REGINA

V

FRANK FAKANI

Date Hearing: 14 May 2021
Date of Decision: 21 May 2021

Mr A Kelesi for the Crown
Mr H Fugui for the Defendant

Lawry; PJ

RULING

Introduction

1. The Defendant Frank Fakani is charged with one count of being an accessory after the fact to attempted murder contrary to section 387 of the Penal Code. He had been charged with attempted murder contrary to section 215 of the Penal Code. On 6 May 2021 the Director of Public Prosecutions filed a nolle prosequi in relation to that charge and presented the information charging him as an accessory. On the same day the fresh charge was laid he pleaded guilty. He now appears for sentence.

Facts

2. The Defendant is a taxi driver. On 8 November he drove three customers in his taxi from the taxi base at Kukum to the domestic airport at Henderson. The victim also travelled to the domestic airport at Henderson on a flight from Rennell. Once at the domestic airport the victim boarded a car and travelled to Honiara. The Defendant was directed by one of his passengers to follow the car in which the victim travelled. Both vehicles travelled to Point Cruz. The passengers of the Defendant taxi exited the taxi. They were armed with 30 cms bush knives. The victim had gone to Kingsley Fast Food Bar at Point Cruz. While he was there one of the three from the taxi struck him on the left arm with a bush knife. The three passengers then rushed back to the taxi where the Defendant remained. People were shouting at the three of them.
3. The Defendant then knew that one of the passengers had attacked the victim. The Defendant drove his passengers quickly from Point Cruz to Lengakiki where he dropped them. The victim sustained a serious open fracture to his left arm. He was rushed to hospital.
4. The Defendant was arrested on 9 November 2014. In explanation the Defendant said he had not been paid for the fare travelling from Kukum to Henderson and back to Point Cruz.

Submissions on Sentence

5. The Defendant has no previous convictions. He has not come to the notice of the Police in the more than 6 years since the offence. He had one child at the time of the offence. He now has two children. He spent one month in custody prior to being granted bail. The delays in bringing this matter to a conclusion were not of his making. There was one occasion when a warrant was issued after his arrest for failing to appear in Court after a trial had been vacated. He made a voluntary appearance shortly afterwards explaining his reason for failing to appear in Court. I record that there have been 64 appearances in the High Court. There were other appearances in the Magistrates Court before the committal. The one breach did not result in a further delay in progressing this matter.
6. For the Crown, Mr Kelesi confirmed that the maximum penalty for the offence was 3 years’ imprisonment but there was no guideline judgment case to assist the Court. He referred the Court to a recent decision in Vanuatu, Public Prosecutor v Tenene [2018] VUSC 261. The Court in Vanuatu had taken a starting point of three years’ imprisonment, reduced it by one third to reflect his lack of previous convictions, deducted the time spent in custody leaving a sentence of 1 year 9 months and 13 days which was suspended for 2 years. It is noted that the offender in that case was an accessory after the fact to charges of unlawful entry and theft.
7. The second case referred to by Mr Kelesi was from Fiji. In State v Niume [2011] FJHC the Defendant was charged with being an accessory after the fact to murder. He assisted the offenders by concealing the murder weapon and disposing of the blood stained clothes of a co-Defendant. The Court noted that Fiji had no guideline judgment. The maximum penalty in Fiji was three years’ imprisonment. The Court took a starting point of one year and deducted 3 months to reflect the time spent in custody. The Accused did not plead guilty nor did he have good character, having been convicted previously.
8. Mr Kelesi correctly reminded the Court of the need for general deterrence and that the Defendant had assisted by transporting persons involved in a very serious offence. He referred to the need for specific deterrence to show that such offending will not be tolerated.
9. For the Defendant Mr Fugui emphasised the delay in bringing this matter to a conclusion, and highlighted that the delay was not brought about by the Defendant. He raised in mitigation that the Defendant was a family man who had spent more than 6 years with his liberty restricted on bail. This resulted in his missing important occasions including two funerals, one of a grandmother and another of an uncle. He referred the Court to Patterson Runikera v DPP HCSI-CRAC 14 of 1987, Regina v Oge [2004] SBHC 72, Regina v Gwali [1999] SBHC 10 and Kyio v Reginam [2004] SBHC 90 which all dealt with the issue of delay. As Kabui J recorded in Oge, that section 10 of the Constitution requires those facing criminal charges to be tried within a reasonable time. Six years cannot be said to be reasonable. In Kyio, Palmer CJ was dealing with a lengthy delay of 9 years after charging the Defendant. His Lordship reviewed the authorities and reduced a sentence from 5 years to two years as a result. Mr Fugui in his written submissions took the Court through a number of other authorities which confirmed a significant discount is to be applied where there is significant delay.
10. In his oral submissions Mr Fugui emphasised that the Defendant had pleaded guilty at the first opportunity. He emphasised that the Defendant had no prior knowledge of the intended offending by his passengers. He explained that the reason for taking them from the scene included concern for his welfare and the fact that he had not been paid for the taxi fare.

Discussion

11. I accept that there is no guideline judgment for being an accessory after the fact. The maximum penalty is three years’ imprisonment. The Court accepts that the starting point must reflect that the offence committed by the co-Defendant was very serious, attempted murder. That offence carries a maximum penalty of life imprisonment. I accept that the fact of it being such a serious offence is an aggravating factor for the Defendant. I must however balance that against the actions of the Defendant which although they assisted the offenders to leave the scene are significantly less serious than the offender in the Fijian case of Niume who concealed a weapon and disposed of blood stained clothing.
12. In Vanuatu a person convicted of being an accessory after the fact is sentenced as if he were a principal offender. In Tenene the Defendant faced a maximum penalty of 7 years’ imprisonment and the Court took a starting point of 3 years’ imprisonment.
13. I accept that the Defendant has a number of mitigating factors I must take into account. The first I record is that the Defendant pleaded guilty on the first available opportunity. He is someone who had not come to notice either before this offending nor in the years that have followed. A major factor in mitigation is the delay in bringing this matter to a conclusion. I accept that the delays have not been the fault of the Defendant. Those delays have resulted in a restriction to his movement preventing him from attending family functions such as two family funerals. The delays were in spite of section 10 of the Constitution guaranteeing him a fair trial within a reasonable period of time. He had a serious charge over his head until resolution of this matter. I also note that he is a family man.
14. While there is a need for general deterrence and taxi drivers are at risk of being preyed on by offenders needing transport, I accept his actions were not in the most serious category however the offence for which he is an accessory after the fact was a very serious offence.
15. His previous good character and in particular his conduct since the offence satisfy me that he is not in need of a sentence to specifically deter him from similar offending in the future. However, the offending is of sufficient seriousness that the Court has no option but to consider a sentence of imprisonment.
16. I take a starting point of 15 months’ imprisonment to which I add a further 3 months to take account of the seriousness of the principal offending. From that 18 month sentence I deduct one month for the time already spent in custody. I deduct a further 5 months to reflect the delay of 6 and a half years from arrest to being able to plead to take account of the fact of having a serious charge hanging over his head for that time and the consequent restriction on his freedom of movement. From the remaining 12 months I make a further deduction to take account of his early plea, recognising that it came on the same day as the information was put before the Court. For that and his previous good character I deduct a further 3 months. The guilty plea saves the Court the expense of a hearing, it saves the victim and the witnesses the stress of reliving the events and is a recognition of his acceptance of his criminal conduct.
17. That leaves a final sentence of 9 months’ imprisonment. I then turn to section 44 of the Penal Code. I am satisfied that the offence is sufficiently serious that it warrants a term of imprisonment. It is necessary to deter others who may take it on themselves to assist violent offenders. However, the factors I have taken into account in mitigation, in particular the guilty plea, the previous good character and the lack of offending since his arrest all persuade me that this is a case where the sentence can be fully suspended. This means you will be sentenced to 9 months’ imprisonment. That sentence will not take effect unless during the next 12 months you commit another offence punishable with imprisonment and a Court orders under section 45 that the original sentence shall take effect. The suspension of sentence takes effect from today.

Orders of the Court

1. The Defendant is convicted and sentenced to nine months’ imprisonment.
2. The whole of the sentence is to be suspended for 12 months pursuant to section 44 of the Penal Code.
3. Section 44(6) has been complied with.

By the Court
Justice Howard Lawry PJ