Olile v R [2023] SBHC 174; HCSI-CRC 228 of 2023 (2 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Olile v R
Citation:
Date of decision:	2 August 2023
Parties:	Freddy Olile and Primo Halu
Date of hearing:	11 July 2023
Court file number(s):	228 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Talasasa; PJ
On appeal from:
Order:	1. Appeal is allowed – sentences for each offender to serve 6 months imprisonment for each offence is to be served concurrent to each other.
Representation:	Mr Tovosia, S for the Prosecutions Mr Harunari, B for the Defence
Catchwords:	Appeal against order by Magistrate’s Court for sentence to be served consecutively – Appeal conceded by Prosecutions – High Court considered circumstances prevailed, does not warrant interference by High Court – though appellate court has power to reverse or vary the order of sentence by the Magistrate’s Court; authority of Bade - where a number of offences arise out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences.
Words and phrases:
Legislation cited:	Penal Code S 244, 326 (1), Criminal Procedure Code S 293 (1)
Cases cited:	Angitalo v Regina [2005] SBCA 5; Laui v DPP [1987] SBHC 4; Bade v Reginam [1988] SBHC 10; [1988-1989] SILR 121, Berekame v Director of Public Prosecutions [1986] SBCA 5; Skinner v. The King [1936] 16 CLR 336, Saukoroa v. R. [1983] SILR 275, Rocky Fuilorentino v Reginam [2008] SBHC 47

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 228 of 2023

FREDDY OLILE AND PRIMO HALU

V

REX

Date of Hearing: 11 July 2023
Date of Ruling: 2 August 2023

Mr. Tovosia, S for the prosecutions
Mr Harunari B for the Defence

Talasasa; PJ

RULING

1. On the 9^th March 2023 at the Yandina Magistrate’s Court Circuit, Central Province, the learned Chief Magistrate convicted and sentenced the appellants on their own plea. The two appellants together with a 3^rd person had pleaded guilty to the offences of common assault, contrary to section 244 of the Penal Code and wilful and unlawful damage, contrary to section 326(1). The statement of offence for section 326 of the Penal Code is ‘Punishment for malicious injuries in general and special cases.’
2. The maximum penalty for the offence of common assault is 12 months imprisonment and for willful and unlawful damage is two years imprisonment.
3. The learned Chief Magistrate sentenced the two appellants as follows:
   • (i) Ishmael Halu – 6 months imprisonment; (suspended 12 months);
   • (ii) Primo Halu – sentenced 6 months for Common Assault and 6 months for willful and unlawful damage;
   • (iii) Fred Olile – sentenced 6 months imprisonment for Common Assault and 6 months imprisonment for wilful and unlawful damage;
4. The learned Chief Magistrate ordered that the total terms of imprisonment imposed for common assault and for wilful and unlawful damage were be served consecutively. For Fred Olile and Primo Halu, each appellant was to serve a total of 12 months imprisonment.
5. In sentencing the appellants, the learned Chief Magistrate gave credit for the guilty plea which saved court’s time and resources from having to conduct a trial. Her Worship also gave credit for the appellants’ antecedents, noting that both appellants were first time offenders.
6. The learned Chief Magistrate highlighted when handing down sentence that the house was built following the Chief’s decision. Her Worship highlighted that any disagreement with the Chief’s decision should have been appealed to the Local Court responsible for land disputes. The appellants should have utilized that avenue says the learned Chief Magistrate. Her Worship pointed out that the use of violence was not one of the options.
7. The learned Chief Magistrate further stated:
   • ‘The three of you (referring to the appellants and the 3^rd person whose sentence was suspended for 12 months) ganged up on the complainant.
   • The seriousness of your offending lies in the fact that you used the strength and threat of numbers to assault the victim and then Primo Halu and Fred Olile destroy and removed the new building structure and damage the building structure.’ (emphasis mine).
   • In terms of land issues. The venue to address such issues is through chiefs and then local courts. Not and never violence. I accept Ismael Halu was present and laid a punch that missed. Be that as it may, as a father and elder, it is expected that he should have controlled the other two defendants who are his sons. All defendants have been charges as joint and principle offenders. Thus, submissions by Mr. Harunari that I take into consideration the culpability of the punch missed has limited application.
   • It is inevitable that given the nature of the assault, the use of strength of numbers and destruction of property, I am of the view that immediate custodial sentence is warranted.
   • The reason explained by Mr. Harunari is the bottle beer shop was going to located at the access road and close to the village. The proper thing to do is to lodge an objection with the Central Island Liquor board and give reasons. Not fighting and destroying building structures.’
   • ‘My view is that immediate custodial sentence are inevitable.
   • For defendant, Ishmael Halu-sentence 6 months imprisonment, suspended 12 months.
   • Defendant Primo Halu-sentence 6 months imprisonment for common assault and 6 months for wilful and unlawful damage.
   • Defendant Fred Olile-sentence 6 months imprisonment for common assault and 6 months for wilful and unlawful damage.
   • Total term of imprisonment for common assault and wilful unlawful damage to be served consecutively. For Defendant Fred Olile and Primo Halu 12 months imprisonment.’
8. On that basis, among other reasons, the learned Chief Magistrate imposed a custodial sentence which was outlined earlier on in this ruling.
9. In this appeal, counsel for the appellants Mr Harunari quite correctly did not appeal against the penalty imposed for each offence. Mr Harunari, however, complained that the sentence of 6 months imprisonment for each of the offences pleaded to by the appellants should have been ordered to be served concurrently to, and not consecutively upon each other.
10. The petition of appeal filed on behalf of the appellants on 23^rd March 2023 outlined the following one single ground of appeal:
    • ‘The learned Chief Magistrate erred in law when she imposed a consecutive sentence of 12 months imprisonment, resulting in the effective sentence to be manifestly excessive.’
11. Mr Harunari filed his submission in support of the appeal on 29 June 2023 and Mr Samuel Koeto Tovosia of counsel for the Respondent filed his reply on 5 July 2023.
12. The appeal was heard on 11 July 2023. Ruling was not delivered until today for various reasons.
13. I am grateful for counsels’ both written and oral submissions and for their assistance in citing relevant authorities to support their arguments.
14. Needless to say, on the outset, that counsel Mr Tovosia for the Respondent conceded to the appeal ground, submitting as follows:
    • ‘It is submitted that an error in law was made by the lower court in ordering that the sentences imposed on the appellants were to be served consecutively.’^[1]
15. Counsel Tovosia further submitted that the learned Chief Magistrate wrongly applied a sentencing principle when Her Worship ordered that the sentences of 6 months imprisonment for wilful and unlawful damage be served consecutively.
16. I note the reference by Mr Tovosia to the case of Angitalo v Regina [2005] SBCA 5; CA-CRAC o24 of 2004.
17. Mr Harunai in support of the appeal submitted that the learned Chief Magistrate should have imposed the sentences to be served concurrently.
18. Counsel found comfort in the cases of Laui v DPP [1987] SBHC 4; HC-CRAC 011 of 1987 and Bade v Reginam [1988] SBHC 10; [1988-1989] SILR 121 (21 December 1988), and made the following submissions:
    • ‘In the case of Laui V Director of Public Prosecutions, the court said:
    • “The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, sentences should be concurrent. If not them consecutive sentences are appropriate subject to the overall total”
    • The court in Laui also stated that:
    • “On the other hand, the sentences for a series assaults against the same person even though spread over a lengthy period of time should properly be made concurrent,”
    • ‘In another case in Bade v Reginam, the court stated that:
    • “where a number of offences arise out of the same single transaction and cause harm to the same person there may grounds for concurrent sentences....”
19. What is notable in the authority of Bade, as referred to by Counsels, is, when court is considering to exercise the discretion as to whether a sentence is to be ordered to be served concurrently or consecutively, it is relevant to consider whether a number of offences arise out of the same single transaction and cause harm to the same person.
20. The single transaction principle in Bade is not about a single transaction per se, but the same single transaction and the act convicted of and now to be sentenced for, has to cause harm to the same person. It must depend on the facts and merits of each case.
21. Counsel Harunari submitted further,
    • “By applying the principles in the Laui case and Bade case, the appellants submitted to Court that both offences (Count 1 and Count of the charge) are both series of offences committed against the same complainant, Peter Vaea. The offences in both charges also occurred on the same day on the 9^th of July 2022.”
    • “It is the Appellants submission in this appeal that even if these two offences are separate offences, they can be regarded as a single transaction of act which are committed against the same complainant. As such, the sentence should be ordered as concurrent and not consecutive.”
22. Counsel laid no complaint on the learned Chief Magistrate imposing a custodial sentence for both offences. However, as highlighted in his submission, Counsel’s concern was in relation to the sentences being ordered to be served consecutively.
23. I note the concession by Counsel for the Respondent. Counsel however, referred the court to section 293 of the Criminal Procedure Code, and submitted as follows:
    • “We submit that the power of this Honourable Court in relation to appeals can be found in section 293 of the Criminal Procedure Code, Cap 7. This Honourable court upon hearing parties, has the power to reverse, vary the decision of the lower court, may remit the matter with its opinion or make such other order as to it may seem just and may be such order exercise any power which the Magistrates’ Court may have exercised. This court also has the power to dismiss an appeal if it considers that no miscarriage of justice has actually occurred.
    • Further to that, this honourable court if it thinks that a different sentence should have been passed, has the power to quash the sentence imposed by the Magistrate’s Court and pass such other sentence law (whether more or less severe) in substitution therefor as it thinks ought to have been passed. The Court of Appeal case of Berekame v Director of Public Prosecutions^[2] stated as well that:
    • “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”
24. I agree. The High Court, by virtue of section 293(1) of the Criminal Procedure Code is vested with the powers, when dealing with an appeal from the Magistrate’s Court, as outlined in Mr Tovosia submissions.

CONSIDERATIONS

25. I have carefully considered the submissions by Counsel for the appellants in particular the discussion of the principles to be applied in such a case in light of the authorities cited and referred to in the submission.
26. I have also considered the concession by Counsel for the Respondent.
27. In Bade v Reginam, referred to by Counsel Mr Harunari, the court pointed out as follows:
    • “In a carefully reasoned sentencing judgement, the learned trial magistrate referred to the matters for which he would give the accused credit and continued to point out the seriousness of burglary, particularly in Honiara. I do not repeat them but I agree with all the points made.”^[3]
28. In the Bade case, the High Court ruled that the learned Magistrate correctly applied the principle of the same single transaction rule in ordering a concurrent term for malicious damage caused to Solo Lae’s house during the burglary.
29. In the final analysis the High Court in Bade increased one of the burglary offences; its sentence was ordered to be served concurrent to the sentence imposed for malicious damage but consecutive to the remainder of the sentences.
30. The High Court highlighted the prevalence of the offence in Honiara.
    • “Burglary is an extremely serious offence. Anyone who breaks in to a private house at night, however careful he may be to try and do it when the house is empty, runs the risk that there is someone inside. The effect on anyone who has been in a house when it is burgled can be extreme and may frequently have the same effect as an offence of violence. Even where the house was unoccupied at the time of the burglary, the sense of violation felt by the owners when they return can have very long term effects. The general rise in the incidence of burglaries in Honiara is causing a restriction on the style of life.”^[4]
    • “When sentencing offences of violence, a court will always consider the effect on the victim in deciding the appropriate sentence. In burglary also, that is an important consideration.”^[5]
31. Even though the comments in Bade were in relation to the offence of burglary which is not similar to the case now before me, the manner by which the court abhors the increase of certain offences in a particular locality raises the importance of compiling statistics of cases to assist court in its determination on sentence.
32. I would expect lawyers in carriage of such matters to highlight that in their submissions on sentence.
33. Be that as it may, I take into account what Counsel for the Appellant highlighted earlier in his submission, and that is, that I should only consider the appeal on the basis of the ground of appeal filed.
    • “In Boinago v Reginam, The Court at paragraph 9 (P. 5) make
    • reference to the comments made in the case of Rocky Fuilorentino v Reginam and quote:
    • “if the presiding magistrates acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him. If he mistakes the facts, if he does not take into account some materials consideration, then his determination should be reviewed and the appellant court may exercise its own discretion in substituting the appropriate sentence [3]. So unless the appellant can demonstrate that an error had been committed in the sentencing discretion of the court below, this court should not intervene.”
34. In light of the principles discussed in this appeal by both counsels and in view of my acceptance of the concession by the Crown as Respondent, I allow the appeal and grant the orders sought.

ORDERS

1. Appeal is allowed – sentences for each offender to serve 6 months imprisonment for each offence is to be served concurrent to each other.

THE COURT
The Hon, Justice Ronald Bei Talasasa Jr
PUISNE JUDGE

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^[1]Respondent’s submission, page 3, paragraph 15.
^[2] Berekame v Director of Public Prosecutions [1986] SBCA 5; CA-CRAC 2 of 1986 (19 December 1986)
^[3] Bade v Reginam [1988] SBHC 10; [1988-1989] SILR 121 (21 December 1988)
^[4] ibid
^[5] Bade v Reginam [1988] SBHC 10; [1988-1989] SILR 121 (21 December 1988)