R v Raoga [2021] SBHC 93; HCSI-CRC 04 of 2018 (22 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Raoga
Citation:
Date of decision:	22 September 2021
Parties:	Regina v Ellison Raoga
Date of hearing:
Court file number(s):	04 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:	Magistrates Court
Order:	1 The appeal is dismissed, 2 The sentence by the Chief Magistrate is upheld. 3 No further order
Representation:	Bradley Dalipanda for the Crown George Gray for Appellant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 91, S 306
Cases cited:	Berekame v Director of Public Prosecutions [1986] SBCA 5, Oli v Regina [2008] SBHC 43

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 04 of 2018

REGINA

V

ELLISON RAOGA

Date of Judgment: 22 September 2021

Bradley Dalipanda for the Crown
George Gray for Appellant

RULING

1. Introduction

Appellant Ellison Raoga appealed against the sentences of 5 years’ imprisonment on one Count of Official Corruption and of 1-year imprisonment for each count of the 5 count of fraudulent Falsification of account and or aggregate total of 5 years’ imprisonment

2. Appeal grounds

The appeal grounds states that the Chief Magistrate:

(i) Erred by failing to give adequate weight to the mitigating factors on behalf of the appellant,
(ii) Erred by taking into account extrinsic matters such as increase of corruption in the country,
(iii) Erred in law by fixing a high starting point when considering sentence of the appellant,
(iv) Erred in law when considering and repeated the aggravating features of the offending when considering the sentence of the appellant,
(v) Erred in law when concluding that the span over a period of five years; and
(vi) Erred in law or the sentences is manifestly excessive in the circumstances of the case.

The Appellant’s counsel submitted that as it stands, the aggregate total of 5 years’ imprisonment for the 5 Counts of Fraudulent falsification of accounts to be served concurrent to one count of Official Corruption of 5 years’ imprisonment, that total of 10 years is manifestly excessive in the circumstances of the case.

3. Brief Background

Appellant Ellison Raoga was employed by the SI Government in the Inland Division. The 6 charges which he had been convicted on were done by him on his capacity as Compliance officer and financial benefit of $30,000-oo payment for himself.

4. Issue

Whether the aggregate total of 5 years’ imprisonment for the 5 Counts of Fraudulent falsification of accounts to serve be in concurrent to the Official Corruption of 5 years’ imprisonment is manifestly excessive?

5. Analysis of the appeal

A total of 10 years’ imprisonment was imposed for the 6 Counts and the Chief Magistrate ordered the aggregate 5 years’ imprisonment for 5 counts of fraudulent falsification of accounts to be served concurrently to 5 years’ imprisonment for the Official Corruption. And he further suspended the aggregate 5 years’ imprisonment for 5 counts of fraudulent falsification of accounts. The Chief Magistrate stated that it was on the consideration of the totality and concurrent sentence and or the charges are related and came about as of single transaction.

For this appeal it is alleged that the sentence is manifestly excessive in the circumstances of the case.

It is straight forward in this jurisdiction when dealing with appeal on the sentence for the court not interfere with the trial Judges’ discretion in passing sentence as stated in the Court of Appeal case in Berekame v Director of Public Prosecutions^[1] when the Court of Appeal stated:

"A Court of Appeal will not interfere with the trial Judges’ discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because, for instance, the Judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient features of the evidence".

This principal of law was restated or retold by Justice Nagiolevu in the case Oli v Regina^[2] when he stated:

“This court is loath to interfere, or indeed will only interfere with the exercise of the lower courts sentencing discretion, where either or the above principle has not been given proper consideration”.

The accused said that his mitigating factors was not considered and repeated the aggravating features of the offending when the Chief Magistrate passed the sentence in his case.

The mitigating factors of two children, bread winner for the family and no previous conviction they were recognized but the Chief Magistrate said these personal reasons and circumstances are not sufficient or adequate factors and cannot go on his favour. And the reason being that any fact of incarnation will always cause hardship on family and close-relatives and such be the consequence. The accused should have thought about this before committing the offence.

With what was described by the appellant counsel as repeated the aggravating features of the offending when considering the sentences, it is not as such but the Chief Magistrate was reiterating on the trust place the accused which he had abused.

Appellant counsel raised a matter with the starting point in the sentence of this case and it is important to state here the penalties of the offences committed by the accused. Official Corruption under section 91 of the Penal Code is felony and shall be liable to imprisonment for seven years and fraudulent falsification of accounts under section 306 of the Penal Code is misdemeanour and shall be liable to imprisonment for seven years. Both offences are stated as felony and misdemeanour and all defends on the circumstances of any incident. In all requisite the trial Judges’ and magistrates’ discretion in passing sentence defends on the situation of each case before him.

Again sentencing is a discretion of the trail judge or magistrate and when the testimonial, statements or sentence submissions (for accused represent by the lawyers) or as mitigation etc, the court will exercise that discretion and sentence. And for consistency or the policy of the court, the starting point is important before the court will decide the appropriate sentence for such a case.

With this or so far the sentence of one-year imprisonment for the offence liable for imprisonment of seven years and for each count of the five charges which was suspended and in particular with this accused or person in trust is in fact a lot of mercy or leniency given to this accused.

I am not satisfied with the appeal and is dismiss.

ORDER

1. The appeal is dismissed,
2. The sentence by the Chief Magistrate is upheld.
3. No further order

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge

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^[1] [1986] SBCA 5; CA-CRAC 2 of 1986 (19 December 1986)
^[2] [2008] SBHC 43; HCSI-CRAC 124 of 2008 (29 August 2008)