Bongi v R [2023] SBHC 70; HCSI-CRC 275 of 2023 (28 July 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Bongi v R
Citation:
Date of decision:	28 July 2023
Parties:	Leeroy Bongi v Regina
Date of hearing:	22 July 2023 (Last Written Submission)
Court file number(s):	275 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Court will therefore dismiss the appeal, maintain the 8 months sentence
Representation:	Mr Limeniala for the Appellant Mr Vaike for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Liquor Act [cap 144] S 50 (2) (b), S 50 (2) (a), (b), (c) and (d)
Cases cited:	Sisione v Regina [2004] SBHC 69, Kiap v Regina [2005] SBHC 121,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 275 of 2023

LEEROY BONGI

V

REX

Date of Hearing: 22 July 2023 (Written submission in)
Date of Decision: 28 July 2023

Mr. Limeniala for the Crown
Mr. Vaike for the Respondent

DECISION ON APPEAL AGAINST SENTENCE

Introduction

1. Appellant is Mr Leeroy Bongi. Appellant comes from Green valley village, around Malu’u area, North Malaita, Malaita Province. Appellant was charged and convicted in the Court below on the 17^th May 2023, upon his guilty plea to the charge of “restriction on making liquor contrary to Section 50 (2) (b) of the Liquor Act (Cap 144)”. Principal Magistrate Luke Sandy sentenced the appellant to 8 months imprisonment.
2. By petition of appeal filed 31/5/2023, the appellant raised four grounds of appeal namely: -
   • (i) Principal Magistrate did not adequately take into account the mitigating factors, defence Counsel put on behalf of the appellant (defendant in the Court below).
   • (ii) Principal Magistrate erred in law and in fact when he drew inference that the defendant was cooking kwaso.
   • (iii) Principal Magistrate erred in law by failing to consider the different natures of each of the offences under Section 50 (2) (a), (b), (c) and (d) of the Liquor Act (Cap 144).
   • (iv) That the sentencing Principal Magistrate failed to consider the sentence tariff or precedents argued for and on behalf of the appellant (defendant in the Court below).
3. Appellant sought to quash the custodial sentence of 8 months or give a lower sentence or impose a fine instead of custodial sentence. The last broad relief sought on appeal is for this Court to give any other orders that it thinks fit.

Charged for being in possession or custody of utensils used or intended to be used for brewing/making kwaso

4. The relevant law under which the appellant was charged and convicted - Section 50 (2) (b) of the Liquor Act (Cap 144) states: -
   • “A person who, without the written approval of the Minister: -
   • (a) Imports...;
   • (b) Has on his premises or in his possession or custody any still, still head, worm, machinery implement or utensil used or intended to be used for brewing or distilling liquor;
   • (c) Makes...;
   • (d) Supplies...,

is guilty of an offence and liable to a fine of one thousand two hundred dollars or to imprisonment of three years or to both such fine and imprisonment (My underlining indicate the provision under which defendant was charged and convicted).

5. So, the charge against the appellant which was proven on his entering a guilty plea was for being “in possession or custody of utensil used or intended to be used” for brewing or distilling or making liquor. On the evidence before the Magistrate, as per the agreed facts, the utensils found on the premises of the defendant’s kitchen house were: -
   • (i) 2 x Sol-brew cylinder
   • (ii) 2 x Cooling system
   • (iii) 2 x 4-gallon containers
   • (iv) 2 x bucket empty breakfast biscuit
   • (v) 2 x big aluminium cooking pot
   • (vi) 1 x Medium size aluminium cooking pot
6. The Principal Magistrate expressed great concern about the anti-social issues with kwaso (homebrew) in the Malu’u area, North Malaita, Malaita Province. Principal Magistrate noted that Malu’u community was working with the Police to curtail the issue of kwaso. The community had supplied intelligence about those who make kwaso in the area (kwaso production is an issue to address). Such information led to the Police searching the premises (house) of the appellant whereupon the Police confiscated the utensil referred to in paragraph 5 (i) – (vi) above. The Principal Magistrate remarked in his decision that in 2009^[1] there was an increase in the penalty to 30,000 units fine or 3 years imprisonment or both fine and imprisonment. And say parliament was responding to the serious social issue connected with kwaso.
7. Upon defendant entering a guilty plea, the Principal Magistrate was satisfied that the appellant was in “custody/possession of utensil used or intended to be used for making kwaso”, at Green Valley village, Malu’u area. This is the offence the defendant was charged and pleaded guilty to. The Principal Magistrate does not have to be satisfied that the appellant was cooking/making kwaso under Section 50 (2) (b) of the Liquor Act (Cap 144).
8. There is no error with the Principal Magistrate’s inference that the appellant was making/cooking kwaso. Those utensils found in his house/possession and confiscated by the police are used or intended to be used for brewing/making/cooking kwaso. Those are not utensils used for cooking of rice or cooking of taro or cooking of kumara or cooking of fish or cooking of cabbage to feed a young family like that of the appellant (wife and one child). Principal Magistrate made the inference in reference to the intelligence that prompted the police to mount an operation to search the home of the appellant (see paragraph 1 page 14, appeal book). Prior to making that inference, at the last paragraph, page 13 appeal book, the Principal Magistrate already concluded that the defendant had in his possession utensils used or intended to be used for making kwaso contrary to Section 50 (2) (b). The inference was a necessary side line comment but not relevant to the substantive charge. Principal Magistrate was in my considered view making the inference comments as an obiter rather than ratio decidendi.
9. And the Principal Magistrate was of the considered view that to send a clear message of deterrence to the community against the social devastation of kwaso in the Malu’u community, the Principal Magistrate imposed 12 months imprisonment and deducted 4 months for mitigating factors like, early guilty plea and for the other mitigating factors suggested by appellant’s lawyer - first time offender, family circumstance and youthfulness etc. The end head sentence imposed after the reduction was 8 months. Indeed, the Principal Magistrate considered the mitigating factors (see middle of page 13, appeal book).
10. I agree with the Principal Magistrate that the anti-social behaviours resulting from the manufacture, distribution, selling and consumption of kwaso is nerve-wrecking for communities throughout Solomon Islands. What’s more worrying is that production has now penetrated into villages like in Green valley around Malu’u area, and not just the distribution, selling and consumption. The presence of kwaso production utensils like in this case is a real cause for concern. It means that there will be increased manufacture, distribution, selling and consumption of kwaso and hence increase in anti-social and health issues at the village level. In the 1980s, and 1990s, it was unheard of to produce kwaso in villages. There may have been illegal selling and consumption of kwaso or alcohol in the village, but even those were rare. In my village (Masupa, East Are ‘Are, Malaita Province) even to smoke cigarettes or chew betelnut is considered a taboo then. It is no longer the case these days. With the increase in manufacture, distribution, selling and consumption of kwaso in villages, there is also increased anti-social behaviours like – noise pollution, fighting, stealing, sexual activities and even health issues.
11. This is why the Principal Magistrate was intent on a custodial deterrent sentence of 8 months. The question I asked myself on this appeal is whether that is a manifestly excessive sentence for this offending (being in custody of utensils used or intended to be used for making kwaso), a source of social disharmony in Malu’u area. This offence is and must be recognised as a serious crime in the village, reflected in the increased punishment of 30,000 units fine or 3 years imprisonment that parliament made in 2009. To appreciate the serious gravity of this offence - whether its manufacture, distribution, selling and or consumption, a starting point sentence of 8 months is appropriate, in my respectful view. The 2 cases appellant’s counsel cited to me were in 2004^[2] and 2005^[3], the former a starting point sentence of around 3-4 months was recognised. That is about 19/20 years ago. The latter case, 7 months’ imprisonment was imposed for a similar offending such as this. The issues with kwaso have now drastically increased in that same period. I say above that it was unheard of to produce kwaso in the villages more than 20 years ago. Should the punishment still remain low? Certainly not. Courts must approach modern day sentencing tariffs differently from 2004/2005, to reflect the increased gravity in kwaso related social and health tissues, that comes about due to increased production, distribution, selling and consumption of kwaso. So, I will increase the starting point sentence to 8 years, because appellant is a first-time offender and took an early guilty plea. Absent these two factors, I will have put the starting point sentence above 8 months.
12. The starting point sentence will further inflate to 10 months due to two serious aggravating factors (no license from the Minister and utensils found in a village family home). Then I will deduct 2 months for early guilty plea - shows remorse and saves Court’s time; first-time offender; personal circumstances and the other mitigation factors counsel for the appellant submitted on in his written submission. So, I will be left with 8 months. I noted that the Principal Magistrate allowed reductions in respect of the same mitigating factors in the Court below.
13. Following a different route in terms of starting point, aggravating and mitigating factors, the end result head sentence I will impose is still 8 months to reflect the seriousness of this offending in the villages and the need for deterrence. The Principal Magistrate considered the seriousness of the offence, considered the sentencing tariffs, the aggregating factors (see last 2 paragraphs, page 14 appeal book) and imposed a 12 months custodial sentence. And reduced it to 8 months as the final head sentence, due to strong mitigating factors (see last paragraph, page 14 appeal book).
14. Appeal ground number 3, appellant say that his worship erred in law when he failed to distinguish between the different natures of offences under Section 50 (2), (a), (b), (c) and (d). If his worship had differentiated the different natures of offences under paragraphs (a) – (d), he would also have considered different sentences appropriate for each rather than lumping them up and concluding that the different offences and their natures are the same, hence attracting the same harsh penalty of 8 months. Appellant submits that the offence he committed is one of “possession of utensils...” and not “making of kwaso”. So, the penalty for someone in possession of utensils should be lighter compared to a heavy penalty for someone who is actually making kwaso. I do not see an error in the approach, the Principal Magistrate took. Whether one is importing (a); or making (c); or supplying (d); or (b) having possession of utensils used or intended to be used for making kwaso, they all contribute towards the same anti-social and health issues connected to kwaso (whether it be the production, distribution, selling or consumption of kwaso). And the penalty should still be the same irrespective of the different natures of offences under (a) – (d). Authorities should be working towards addressing the same problem of kwaso and its related anti-social and health issues. The problem of kwaso stems out from the production, distribution, selling and consumption of kwaso. That understanding must cut across the different natures of offences under (a) – (d).

Conclusion and Orders on the appeal grounds

15. Court will therefore dismiss the appeal, maintain the 8 months sentence and answer the appeal grounds as follows: -
    • (i) Principal Magistrate took into account the mitigating factors defence Counsel put to him in the Court below.
    • (ii) Principal Magistrate was correct in law and in fact when he drew inferences that the defendant was cooking kwaso as an obiter remark rather than a ratio decidendi remark.
    • (iii) The different natures of each offence under Section 50 (2) (a), (b), (c) and (d) of the Liquor Act (Cap 144) are all the same and all should have the same sentence and should not be treated as separate for purposes of imposing different sentences. Despite the different natures of offences under (a) – (d), we are addressing the same anti-social and health issues connected to the production, distribution, selling and or consumption of kwaso. And so, the sentences should apply equally to the different natures of offences under (a) – (d).
    • (iv) Principal Magistrate did consider the tariffs, but did say that each case will depend on its own merit. Principal Magistrate felt that 8 months custodial sentence is still within range as per the case of Kiap – sentence of 7 months for similar offending in 2005 (footnote 3 above). And other cases put before the Principal Magistrate (see last paragraph, page 14 appeal book).

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Penalties Miscellaneous Amendments Act 2009 (No. 14 of 2009) – See the increased penalties for offences under the Liquor Act in the Schedule.
^[2] Alick Sisione and Zacchariah Avelea v Reginam [2004] Criminal Appeal Case Numbers 385-04 and 394-04 a starting point sentence of 3-4 months for early guilty plea was proper and imposed a 4 months sentence quashing 7 months.
^[3] Philip Kiap v Regina [2005] Criminal Appeal No. 237 of 2005, no starting point was put but a sentence of 7 months was imposed for kwaso production.