R v Oto [2022] SBHC 26; HCSI-CRC 187 of 2018 (17 May 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Oto
Citation:
Date of decision:	17 May 2022
Parties:	Regina v Stephen Jude Oto
Date of hearing:
Court file number(s):	187 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:	Magistrates Court
Order:	1. The magistrate erred in applying the rules of concurrent and totality rules on the 11 counts of official corruption official corruption charges, 2. The sentence of 3 years imprisonment to be served for the 11 counts is manifestly inadequate, 3. The defendant Steven Jude Oto is sentenced to the serve the sentences of Ct 1 and Ct 2 consecutively, 4. He is to serve a total of 6 years imprisonment, 5. Sentences on Counts 3, 4, 5, 6, 7, 8, 9, 10 and 11 is suspended, 6. No further orders
Representation:	Ratu O for the Appellant Pulekera for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 91 (a) [cap 26]
Cases cited:	Berekame v Public Prosecutions [1986] SBCA 5, Saukoroa v R [1983] SILR 275, Skinner v The King [1913 HCA 32

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 187 of 2018

REGINA

V

STEPHEN JUDE OTO

Date of Ruling: 18 May 2022

Ratu O for the Appellant
Pulekera for the Respondent

RULING ON THE APPEAL

Maina, PJ:

Steven Jude Oto (Respondent) pleaded guilty and convicted on 11 counts of official corruption contrary to section 91 (a) of the Penal Code (Cap 26). For all the Counts he was sentenced to a total of 26 years’ imprisonment.

Respondent was ordered to serve three (3) years imprisonment.

The Appeal

The Crown appealed against the sentence as manifestly inadequate for the charge of official corruption. And the grounds of appeal are that Principal Magistrate erred in law:

1. in failing to specify the starting point of the sentence to be applied in the present case,
2. in failing to adequately consider or reflect the aggravating features in her sentencing remarks,
3. when she ordered the sentences in counts 1-5 were to be served concurrently when these are separate offences, particularized in five separate charges/counts,
4. when she ordered the sentences in counts 6-11 were to be concurrently when these are separate offences, particularized in six separate charges/counts; and
5. in holding that the sentence of 6 years’ imprisonment is manifestly excessive for this matter thereby reducing it to 3 years’ imprisonment on the totality basis.

The Appellant seeks the order of this court quash the sentence 3 years’ imprisonment and pass a sentence of 6 years and order for Counts 1 – 10 and 11 to be served concurrently. In the alternative, order for the 3 years imposed for counts 1 – 5 to be served consecutively to the sentence of 3 years imposed for counts 6 – 11. And any further orders the court sees fit to impose.

Brief Facts

The Respondent was a financial Controller of the Ministry of Police, National Security and Correctional Service when he committed the offences.

Between 1^st December 2015 and 8^th December 2016, the Respondent being the owner and operator of Jahman Enterprises used his business entity as a mechanism to hide his identity. Respondent used his position within the Ministry of Police, National Security and Correctional Services to manipulate the tendering process for his own pecuniary advantage.

The Ministry of Police, National Security and Correctional Services made the payments totaling $756,087.24

The Sentences

The sentences for the 11 charges/counts of the Official Corruption total of 26 years’ imprisonments as follows:

• 7 counts - 3 years’ imprisonment each
• 2 counts - years’ imprisonment each
• 2 counts 6 months’ imprisonment each

When the court applied the concurrent and totality rules in the sentence, the Respondent was ordered to serve 3 years’ imprisonment.

The Issues

There 5 grounds of appeal and all relates to the applying of the sentencing rules or principles that resulted to the sentence in the case to be manifestly inadequate. On this basis, the court will deal with the grounds together and the issues are:

1. Whether the court properly applied the process in the sentence to enable it arrive on such sentence.
2. Whether the sentence of 3 years’ imprisonment to be served is manifestly inadequate.

The Appellate Jurisdiction

The Appellate Jurisdiction has been settled in the case Berekame v Director of Public Prosecutions [1986] SBCA 5; CA-CRAC 2 of 1986 (19 December 1986) in this Jurisdiction

“1. A court of appeal will not interfere with the trial judge’s 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 feature of the evidence. (Skinner v. The King [1913] HCA 32; (1936) 16 CLR 336 as applied in Saukoroa v. R. [1983] SILR 275”

With this appeal, the court is to review or check if the sentence imposed on the Respondent is manifestly insufficient or inadequate because the magistrate had acted on a wrong principle.

Issue 1

The Appellant submitted that the Principal Magistrate had fail to specify the starting point of the sentence to be applied in this case when she sentenced the accused on the 11 counts of official corruption.

Counsel for the Appellant stated that this failure had resulted to the magistrate to order or arrive at the sentence of 3 years’ imprisonment be served by the Respondent out of the total sentence of 26 years’ imprisonment for the 11 charges/counts. A sentence manifestly inadequate in the circumstance of the offence.

The Counsel for the Respondent submitted that the magistrate had specified the starting point of 6 years and he made reference to the paragraphs 49 – 51 in the sentence delivered on 16^th May 2018.

Respondent Counsel further stated that when the Principal Magistrate worked out the appropriate sentence for this case she must have taken into account inter alia, the maximum penalty of 7 years prescribed under section 91 (a) of the Penal Code. He stated that the statutory maximum penalty of 7 years poses difficulty for any sentencing magistrate and or judge in this type of case.

Respondent stated in their submission that paragraphs 49 – 51 relate to the starting point, however these paragraphs in the sentence shows that they are on the orders of the magistrate for the sentences to run concurrently and with totality rule i.e.

• counts 1-5 to run concurrently and to serve 3 years’ imprisonment
• counts 6-11 to run concurrently and to serve 3 years’ imprisonment
• a total of 6 years’ imprisonment for the sentences as above was seen as manifestly excessive and the totality rule which resulted to 3 years’ imprisonment was ordered to be served

These paragraphs do not relate to the starting point in the sentence as stated by the Respondent but they relate to the application of the concurrent and totality rules in the sentences.

Further the maximum penalty for the offence of official corruption is 7 years and although the magistrate did not specify the starting point in the case, the sentence for all counts was made with the highest of 3 years.

And in fact, there are 7 separate charges/counts with 3 years’ imprisonment each and others counts with less sentences. With the principle of reserving the maximum penalty for the worst kind and reflected in the sentences, the starting point should be around or amidst 3 years as noted from the highest for a charge/count and or from the consideration of the mitigation and aggravating features.

With this, the magistrate had taken into account the maximum penalty, comparative sentence and the circumstances of this case with the amount involved, the degree of trust held by the offender and the period over which the money was committed.

The starting point should be around or amidst 3 years as the highest made for a charge/count. I do not find error that required this court to interfere range of in the sentence for all the counts.

This ground of relate to the starting point is dismissed and the sentences on all counts is upheld.

Issue 2

The appellant is appealing against 3 years’ imprisonment imposed for the 11 counts of official corruption as manifestly inadequate.

The Appellant submitted that the respondent was charged with 11 separate offences and as stated the charges/counts for the offences. The offences occurred at different times between 1^st December 2015 and 8^th December 2016.

Respondent was sentenced separately on the 11 charges with total of 26 years’ imprisonment however when the magistrate applied the concurrent and totality rules at the sentence for the counts he ordered the Respondent to serve 3 years’ imprisonment.

The sentences for the 11 courts are:

• 3 years’ imprisonment each for Counts 1, 2, 3, 6, 7, 9 and 11,
• 2 years’ imprisonment each for Counts 4 and 8;
• 6 months’ imprisonment each for Counts 5 and 10.

As discussed in Issue 1, the orders were for the sentences to run concurrently with this format or arrangement:

• counts 1-5 and to serve 3 years’ imprisonment
• counts 6-11 and to serve 3 years’ imprisonment

On that format, the Respondent was to serve a total of 6 years’ imprisonment for the counts 1-5 (concurrent) and counts 6-11 (concurrent). However, the magistrate viewed the sentence of 6 years was manifestly excessive in the circumstances and so applied the totality rule and imposed or ordered a sentence of 3 years’ imprisonment for the Respondent.

Essentially, the concurrent principle in the sentence is based on the “one – transaction rule” that where two or more offences are committed in the cause of a single transaction, all the sentences of these offences should be concurrent rather than consecutive.

With this appeal it quite clear that the offences are separate offences and were committed at different times between 1^st December 2015 and 8^th December 2016.
I find the magistrate erred in the applying of concurrent and totality rules on the sentences imposed for the 11 charges/counts.

The magistrate orders for Counts 1 – 5 to run concurrently and for counts 6 -11 to run concurrently for the defendant to serve 3 years is error and set aside.

There is a degree of trust held by the offender and on a number of times and over the period when he committed the offences and sentences to be served for offences is manifestly inadequate.

The sentences imposed by the magistrate on all the counts is upheld sentences and in applying the totality rules, the defendant is to serve the sentences on Ct 1 and Ct 2 consecutively and the other 9 counts is suspended.

Orders of the Court

1. The magistrate erred in applying the rules of concurrent and totality rules on the 11 counts of official corruption official corruption charges,
2. The sentence of 3 years imprisonment to be served for the 11 counts is manifestly inadequate,
3. The defendant Steven Jude Oto is sentenced to the serve the sentences of Ct 1 and Ct 2 consecutively,
4. He is to serve a total of 6 years imprisonment,
5. Sentences on Counts 3, 4, 5, 6, 7, 8, 9, 10 and 11 is suspended,
6. No further orders

THE COURT
Hon. Leonard R Maina
Puisne Judge