R v Manukama [2021] SBHC 66; HCSI-CRC 159 of 2021 (13 August 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Manukama
Citation:
Date of decision:	13 August 2021
Parties:	Regina v Benjamin Manukama
Date of hearing:	23 July 2021
Court file number(s):	159 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. I quash the sentence of 1 ½ years 2. I substitute a sentence of eight months imprisonment 3. I direct that 3 months of the sentence is to be suspended for one year on condition that the appellant does not re-offend on similar offence. 4. The appellant to serve only 5 months in prison. 5. Consequently, the appellant is to be released at the rising of the court. 6. This order is to be certified to the Magistrate Court.
Representation:	Mr. Frank Brennan Kama for the Appellant Miss. Patricia Tabepuda for the Crown
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 319 [cap26], S44, 44 (3)
Cases cited:	R v Runikera

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMANL JURISDICTION

Criminal Case No. 159 of 2021

REGINA

V

BENJAMIN MANUKAMA

Date of Hearing: 23 July 2021
Date of Decision: 13 August 2021

Mr. Frank Brennan Kama for the Appellant
Miss. Patricia Tabepuda for the Crown

RULING ON APPLICATION AGAINST SENTENCE

Bird PJ:

1. This is an appeal against sentence by the appellant, Mr. Benjamin Manukama. He was sentenced to 1 ½ years imprisonment by the lower court on the 17^th March 2021 following a guilty plea on a charge of arson. This appeal was lodged by the appellant on the 30^th March 2021. There are a total of five grounds of appeal raised by the appellant.
2. After having perused the petition of appeal filed on the 30^th March 2021, I have formulated the view that ground 1, 2 and 3 could be dealt with together as they all concerned the sentence imposed by the lower court as manifestly excessive. Grounds 4 and 5 will be dealt with together.
3. On the issue of whether or not the sentenced imposed by the lower court was manifestly excessive, I will have to consider the peculiar facts and circumstances of the offending. According to section 319 of the Penal Code (cap 26) the maximum penalty for the offence of arson is one of life imprisonment. The maximum penalty shows that the offence of arson is viewed as very serious. Notwithstanding, the maximum penalty can only be imposed on very serious of cases according their own facts and circumstances.
4. I have perused and have noted the summary of agreed facts as were presented in the lower court at page 6 of the Appeal Book. Paragraph 9 of the agreed facts is of concern to the court. That paragraph reads “the accused abscond since the 5^th July 2016 and under warrant of arrest until it is executed on the 29^th January 2021”. The courts concern is because according to the documentary records on file, that paragraph is an obvious error which had never been picked up and rectified by the prosecution, the defence and the court.
5. On page 35 of the Appeal Book, it is obvious that the appellant was bailed to appear at Honiara Magistrates Court on the 4^th July 2016. There is no other document in the Appeal Book that can confirm that the appellant was bailed to appear at Honiara Magistrates Court on the 5^th July 2016. The warrant to arrest the appellant was issued by the lower court on the 5^th July 2016 because the appellant did not answer to his bail on that date.
6. On the documents now before the court, the prosecution had misinformed the court as to the date of appearance at the said court. Without perusing the content of Notice of offence charged at page 35 of the Appeal Book, the learned Magistrate had allowed the application and issued a warrant on the same date. From the documents presented to this court there is no proof of service by the prosecution that the appellant was summonsed to appear on the 5^th July 2016. I am therefore of the view that the warrant of arrest dated 5^th July 2016 was issued in error by the court and is therefore not effective. On that note, the allegation of absconding bail should not be taken against the appellant in this case. It is an obvious error that this court must rectify according to law. Also on that note, I would urge all lawyers and even the courts to be more vigilant in their normal duties in the proper administration of justice.
7. From the records, a bench warrant was issued against the appellant on the 5^th July 2016. It had taken the police more than four years to execute that warrant. When a bench warrant is issued by the court, the obligation is shifted to the police to have it executed. There is no explanation why it had taken the police more than four years to execute the warrant. When that issue is taken into account, the longest period of delay is caused by the police. Why was the bench warrant not executed by them as soon as reasonably practicable?
8. From the facts which were brought to this courts attention, the delay of more than four years is caused by the police. There is no evidence before this court that the appellant was summonsed to appear at the lower court on the 5^th July 2016. The summons on page 35 of the Appeal Book clearly stated 4^th July 2016. Since then the police had left the matter in abeyance until when the bench warrant dated 5^th July 2016 which was erroneously issued was executed on the 29^th January 2021. On this note, I take into account the comments of Ward CJ in the case of R v Runikera on the effect of delay in sentence and I quote;
   • “Delay generally affects sentence in three ways. It increases the anxiety of the accused man who has it hanging over him for that time. This will obviously only apply from the time of discovery of the offence – any delay before that is entirely in the hand s of the offender. The second factor relates to the plea because any person must realise that, the greater the delay, the more chance the prosecution will be unable to prove their case. Thus, a plea of guilty entered with that knowledge becomes a strong mitigating factor. Finally, it only gives the offender the chance, denied to many accused, of showing that he really does intend to reform and stop offending”.
9. I have also taken note from the agreed facts that the appellant had been remanded in pre-trial custody since the 29^th January 2021. When he was sentenced by the lower court on the 17^th March 2021, he had already been in custody for a period of 1 month and 17 days. I have noted that the court at first instance did not take into account the pre-trial custody period in its sentence. The respondent takes no issue on this point.
10. Grounds 4 and 5 of the notice of appeal deals with the learned Magistrate’s powers to impose alternative sentences according to the provisions of the law. With particular reference is the provision of section 44 of the Penal Code which provides for the suspension of an imprisonment term of an accused person.
11. If the court has to apply the provision of section 44 of the Code, subsection (3) would have to be taken into account. That subsection provides:
    • S. 44 (3) The court shall not deal with an offender by means of a suspended sentence unless the case appears to the court to be one in respect of which a sentence of imprisonment would have been appropriate in the absence of any power to suspend such a sentence by an order under subsection (1) of this section.
12. In my reading of s.44 of the Code, the case must appear to the court to be one in respect of which a sentence of imprisonment would have been appropriate in the absence of any power to suspend such a sentence by an order under subsection (1) of this section. That in my view depends on the circumstances of each case. Consequently, the court in its own discretion could have applied the provisions of s. 44 of the Code. I do not wish to interfere with the sentence under that provision.
13. I have been referred to in a number of previous cases where accused persons were charged with the offence of arson. The sentences imposed ranges from 2 years to six months imprisonment. In respect of this appeal, the offending occurred in June 2016. For various reasons, the matter was not finalised until the 17^th March 2021. For the various and the very same reasons the case was delayed for a period of 4 years, 7 months and 11 days.
14. Taking into account all the above factors discussed in this ruling and the principle stated by Ward CJ in the case of R v Runikera, cited above, I can hold that the imprisonment term of 1 ½ years imposed by the lower court is manifestly excessive. The appeal is allowed.

Orders of the court

1. I quash the sentence of 1 ½ years
2. I substitute a sentence of eight months imprisonment
3. I direct that 3 months of the sentence is to be suspended for one year on condition that the appellant does not re-offend on similar offence.
4. The appellant to serve only 5 months in prison.
5. Consequently, the appellant is to be released at the rising of the court.
6. This order is to be certified to the Magistrate Court.

THE COURT
Justice Maelyn Bird
Puisne Judge