Lapa v R [2023] SBHC 49; HCSI-CRC 553 of 2020 (10 June 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Lapa v R
Citation:
Date of decision:	10 June 2023
Parties:	Danny Lapa v Regina
Date of hearing:	3 June 2021
Court file number(s):	553 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:	Magistrates Court
Order:	1 Allow appeal underground 1 and quash the order of the Magistrates’ Court dated 21st September 2020 imposing a total sentence of imprisonment of 4 ½ years. 2 Quash sentence of 1½ years in count 3 and re-sentence with 3 years’ imprisonment. 3 Direct that sentences imposed under counts 1, 2, and 4 to be made concurrent to count 3, the total amount to be served is 3 years. 4 The order to have the period served in pre-trial custody to be deducted from the sentence remains undisturbed. 5 Dismiss appeal underground 2.
Representation:	Mr D Kwalai for the Appellant Mr S Tonowane for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code[cap 26] S 308 (a), S 309 (a), S 27 and 28, S 29 (4)
Cases cited:	R v Kavei [2019] SBHC 69, Idris v. Regina [2008] SBHC 29, Regina v Davies [2011] SBCA 8, Angitalo v. Regina [2005] SBCA 5

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 553 of 2020

DANNY LAPA

V

REGINA

Date of Hearing: 3 June 2021
Date of Judgment: 10 June 2023

Mr D Kwalai for the Appellant
Mr S Tonowane for the Respondent

Palmer CJ.

1. This is an appeal against the order of the Magistrates’ Court issued on 21^st September 2020 to serve a total of 4½ years in prison for three counts of false pretence contrary to section 308(a) of the Penal Code [cap. 26], and one count of obtaining credit by false pretence contrary to section 309(a) of the Penal Code [cap. 26].
2. The appellant had pleaded guilty to all four counts and was sentenced by the presiding Magistrate as follows:
   • (1) Count 1 – False Pretence: 1½ years;
   • (2) Count 2 – False Pretence: 2 years;
   • (3) Count 3 – False Pretence: 1½ years; and
   • (4) Count 4 – Obtaining Credit by False Pretence: 6 months
3. The presiding Magistrate ruled the sentences were to run cumulatively amounting to a total of 5½ years and reduced it by one year taking into account the totality principle. She also ordered that the prisoner to repay the monies taken within 28 days following his release from prison and in default to serve 8 months in prison.

Grounds of appeal.

4. The two grounds of appeal were:
   • (1) That the sentence of 4 ½ years was manifestly excessive in the circumstances; and
   • (2) That the order of compensation to repay the sum of $21,400 to all the victims of the offences within 28 days failing which he is to serve 6 months is also manifestly excessive.

Brief facts of the appeal – ground 1.

5. There were four different victims who fell prey to the fraudulent activities of the prisoner. To the first two he lied to them that he had cartons of cigarettes to sell. He obtained $2,000 from the first victim, and $10,000 from the second.
6. For the third victim he lied to her that he was an agent of ABA store and collected $7,000 from her before escaping.
7. The fourth victim was a taxi driver that he had engaged and incurred up to $2,400 fees without paying him before escaping. He was subsequently caught and handed over to the Police.

Sentencing Tariffs.

8. A number of cases authorities have been referred to by Mr. Kwalai of Counsel for the Appellant in support of his submission that the sentence imposed was manifestly excessive. In R. v. Kavei^[1], the defendant had been charged with twelve counts of false pretence and one count of carrying on banking business while not being licensed as a financial institution.
9. There were a total of nine victims and the amounts of money taken ranged from $400 to $14,200. On being re-arraigned he entered guilty pleas to all the charges. The total amount of money stolen came to $68,600, a much larger sum of money than what was taken in this appeal case.
10. He was sentenced to three years each on counts 1, 2, 6, and 9, two years each for counts 3, 5, 8, 10 and 11, and two and half years each for counts 4, 7, and 12. For count 13, he was sentenced to two years imprisonment. Taking into account the totality principle, the Court ordered that the sentences of three years for count 1 and two years for count 3 be made to be served cumulatively and the rest made concurrent. The total sentence to be served accordingly was five years.
11. It is pertinent to note that the circumstances of offending in that case were more serious than this one. There were multiple victims, nine in total as opposed to four, and the amount stolen was much larger than the total taken in this appeal. As well there was no recovery to the amount taken and no offers at repayment made.
12. In Idris v. Regina^[2], the prisoner had been charged with numerous offences (3 counts) of forgery, one count of money laundering and one count of obtaining money by false pretence. He was sentenced by the Magistrates’ Court to a total of 4 years and an order for compensation of $2,500 made.
13. On appeal to the High Court, the appeal was dismissed, and the total sentence of 4 years and compensation order upheld. The total amount of money stolen came to approximately $108,059.68, a much larger sum of money than the amount in this appeal. There were multiple offences committed and two defendants, a husband and wife team in the commission of the offences. The circumstances of offending to that extent were more serious.
14. The third case, Regina v. Davies^[3] referred to a Court of Appeal decision that had gone through on appeal from the Magistrates’ Court to the High Court and to the Court of Appeal; the sentence of 3 years imposed for false pretence was upheld. The total amount involved was $85,052.46, which was shared with his accomplice, he retained the balance of $66,000.00. Again the amount involved is much larger than the amount in this appeal.

Decision.

15. I am satisfied, the submission that the sentence imposed of four and a half years, to be manifestly excessive in the circumstances. Each case should be dealt with on its own facts and where there are multiple offences of false pretence, to take one as the lead offence and impose a sentence which reflects the overall criminality involved in the commission of the three offences in that category. While there is a discretion^[4] to impose sentences to run consecutively when the offences are different in character or in relation to different victims, the totality principle needs to be kept in mind.
16. I am satisfied the sentences of 1½ years, 2 years and 6 months for counts 1, 2 and 4 to be appropriate and should not be disturbed. With a third offence of false pretence, the seriousness of offending should increase and reflected with a corresponding increase in penalty. The sentence of 1½ years imposed for count 3 therefore I find to be manifestly inadequate and accordingly direct that it be quashed. In lieu therefore, I order that a sentence of 3 years be substituted.
17. Taking the principle of totality into account I further order that the sentences imposed for counts 1, 2 and 4 to be served concurrent to count 3; the total sentence to be served accordingly is 3 years. The orders that the period served in pre-trial custody is to be deducted from the sentence should remain undisturbed.

2nd Ground of Appeal - orders of compensation.

18. Finally, the Appellant also appeals against the order of compensation issued by the Magistrate to repay all the monies stolen, to be made within 28 days on his release from prison as amounting to double jeopardy or being punished twice and therefore is manifestly excessive.
19. There are two points to note under this ground. The first is that a Magistrates’ Court does have jurisdiction to impose orders for the repayment of money inter alia for compensation (see sections 27 and 28 of the Penal Code [cap. 26]).

Section 27 provides:

• “Any person convicted of an offence may be ordered to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment.”

20. It is not wrong therefore for such an order to be issued. It may be in addition to or in substitution for any other punishment. It appears the order for compensation was additional to his sentence of imprisonment imposed.
21. The second point to note is that before imposing such order, there should have been an enquiry entered into the means and capacity of the prisoner to make such payments. It would be pointless to make such an order if it is obvious the prisoner has little or no means, and whether he has movable and immovable property.
22. I note the submissions of Mr. Kwalai that the effect of such an order would be to impose an additional sentence of 8 months being the default period for failure to make the payments.
23. It is pertinent however to note the effect of subsection 29(4) of the Penal Code, which requires that before a warrant of commitment to prison in respect of non-payment of any sum of money by a person to whom time has been allowed for payment, shall not be issued unless the court shall first make inquiry as to his means in his presence.
24. The effect of this is that if the prisoner has movable and immovable property, the amount of money ordered to be paid may be levied on those properties. Failing that, an enquiry as to the means of the prisoner should be made before a warrant of commitment is issued. It will be open to the prisoner at that point of time to ask for time to make instalment payments.
25. In the circumstances, I am not satisfied the order to pay compensation to all the victims to be manifestly excessive in the circumstances and this ground is dismissed.

Orders of the Court:

1. Allow appeal underground 1 and quash the order of the Magistrates’ Court dated 21^st September 2020 imposing a total sentence of imprisonment of 4 ½ years.
2. Quash sentence of 1½ years in count 3 and re-sentence with 3 years’ imprisonment.
3. Direct that sentences imposed under counts 1, 2, and 4 to be made concurrent to count 3, the total amount to be served is 3 years.
4. The order to have the period served in pre-trial custody to be deducted from the sentence remains undisturbed.
5. Dismiss appeal underground 2.

Sir Albert R. Palmer CBE
Chief Justice.

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^[1] [2019] SBHC 69, HCSI-CRC 143 of 2017 (22 July 2019), note the front page of the case as reported in PACLII incorrectly contained the name of Justice Mwanesalua Deputy Chief Justice (as he then was), but this is one of the cases that I had dealt with.
^[2] [2008] SBHC 29, HCSI-CRC 108 of 2008 (3 July 2008).
^[3] [2011] SBCA 8, Criminal Appeal Case 15 of 2010 (9 May 2011).
^[4] Angitalo v. Regina [2005] SBCA 5, CoA-CRAC 024/2004 (4 August 2005)