Gao v R [2023] SBHC 170; HCSI-CRC 392 of 2022 (14 April 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Gao v R
Citation:
Date of decision:	14 April 2023
Parties:	Carlos Gao v Rex
Date of hearing:
Court file number(s):	392 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. The sentence for count one is 3 years imprisonment. 2. The sentence for counts 2 is one-year imprisonment. 3. The sentence for count two to be served concurrently to count 1. 4. Any days in custody to be deducted from the sentence. 5. No further order.
Representation:	Manaka MB for Appellant Waletofea G for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 261 (1)
Cases cited:	Saukoroa v R [1985-1986] SILR 272, Berekame v DPP [1985-1986] SILR 272, Buruka v Reginam [1991] SBHC 53

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 392 of 2022

CARLOS GAO

V

REX

Date of Ruling: 392 of 2022

Manaka MB for Appellant
Waletofea G for Respondent

RULING

Maina PJ:

Defendant Carlos Gao pleaded guilty on the two charges of simple larceny c/s 261 (1) of the Penal Code. Upon his own plea, convicted and sentenced to 41 months or 3 years 5 months imprisonment for both charges.

The Appeal

The Defendant appealed against the sentence for both charges as excessive in the circumstances of the offences.

The appellant raises the following as the errors made by the Principal Magistrate:

• failing to properly take into account the guilty plea and other mitigating factors
• failing to take proper account of the totality principle in sentencing the appellant,
• gave excessive weight to irrelevant consideration,
• when it ordered the sentence to run cumulatively and
• sentence imposed by Magistrate was excessive in the circumstances

Summary Background

Defendant were charge with two counts of theft and admitted the offences.

The first incident was in the morning of 18^th April 2022 when the complainant Silas Feliz Qopu and his bus driver parked their bus in front of L&J Hardware shop at the Kukum seaside area. When the complainant went to help with the loading of the materials in a vehicle, the defendant approached the bus removed from complainant’s a brown bag placed at the front seat of the bus. The bag contain a mobile, $18,000 (SBD), NPF Card, driving licence and other personal items.

Out of the $18,000 (SBD), the Police recovered only $1,800 from the defendant.

While the defendant was on bail for the above case, he carried out another theft.

On May 27, 2022 at 9 pm, the shop owner of H&D Enterprises Ltd Mr. MD Eilas decided to close his shop at Kwaimai Building. He then looked for his keys inside the shop and while doing this, the defendant entered the shop to the counter, grabbed a Black Redmi 115 lite mobile phone valued $4,300 (SBD) and escaped.

The Police recovered the mobile phone from the Defendant.

The law

Principle of law governing criminal appeals against sentence is clear and featured in the Saukoroa v R [1985-1986] SILR 272, Berekame v DPP [1985-1986] SILR 272. With reference to the above Court of Appeal cases, Justice Muria stated in the case BURUKA v REGINAM HC Case No. 31 of 1991:

“It has been a well-established rule that an appellate court will not interfere with the trial judge’s discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because the trial judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence.

The principle of criminal appeals against sentence is settled or applies well in this jurisdiction as noted from the above cases.

Submissions of the Appellant

The appellant counsel submitted that, the error relate to his consideration mitigation when the magistrate took into account the guilty plea, a form 2 leaver, unemployed and being a first offender though two charges at the first appearance. Counsel said that these irrelevant and cannot be the aggravating features.

I noted the appellant argument but when reading the sentence by the magistrate, it appears that the mitigation and aggravating features came under heading in the written sentence. However, what seems to be clear was that the magistrate considered what prompt as mitigation into account in his sentence.

For the aggravating features, the magistrate noted it and took the attitudes in the commission of the offences and background to make it serious for the defendant.

With the totality principle in the sentence of the appellant and we can start it from the sentence the court can impose in a case of simple larceny c/s 261 (1) of the Penal Code and the maximum penalty is five years imprisonment.

With the case of the defendant, there were two charges and the magistrate imposed the sentence as follows:

“32. The final sentence is the defendant, Carlos Gao is sentence to 41 months imprisonment or 3 years 5 months imprisonment .................

Orders of the Court

1. For both offences, I imposed a total of to 41 months imprisonment or 3 years 5 months imprisonment,
2. Presentence period in custody is to be deducted from this to order 1 above
3. 14 days right of appeal applies”.

From the above quote, there is only one sentence for both offences.

The level of sentence for any particular offence is provided in the law and with this offence it is under section c/s 261 (1) of the Penal Code and the maximum penalty has been set at five years’ imprisonment. While the law fix the upper limit of the sentence permissible and appropriate for a single occurrence, the court always reserve the maximum for the worse case or may properly exceeded where the offence is repeated.

With this case the magistrate did not exceeds the maximum sentence under the Penal Code even with both offences committed by the defendant.

While I am satisfied with the sentence the magistrate imposed on the offences and within the level of sentence for the offence, it was out of line on the fact that there were separate offences of theft committed on different occasions and that deserves the separate sentences for each count.

The sentence for both charges was three years and 5 months to be served by the defendant. However, I have to consider whether I would impose sentence for the each count of simple larceny committed by the defendant.

I consider that as the appropriate approach in this appeal. I will adopt and it is when I will consider the totality of the sentence. Therefore, the sentence by the magistrate of 41 months or three years and 5 months is quashed.

And taking into account the facts with the sum of $17,000 from Count one not recovered from the defendant, what had been stated as mitigation and other related matters, I am satisfied and sentence the defendant to 3 years on Count one and 1 year on count 2 and the sentence to run concurrently.

Orders of the Court

The sentence by the magistrate is quashed and substituted by the following:

1. The sentence for count one is 3 years imprisonment.
2. The sentence for counts 2 is one-year imprisonment.
3. The sentence for count two to be served concurrently to count 1.
4. Any days in custody to be deducted from the sentence.
5. No further order.

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge