R v Sharma [2023] SBHC 97; HCSI-CRC 186 of 2022 (22 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sharma
Citation:
Date of decision:	22 August 2023
Parties:	Rex v Natasha Neha Sharma
Date of hearing:	9 August 2023
Court file number(s):	186 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I hereby sentence the appellant to a fine of $1,500.00 to be paid within 14 days. I order accordingly. Right of appeal.
Representation:	Ms Rachel Olutimayin for the Appellant Mr George Gray for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Constitution S 16 (2), Emergency Powers Act [cap 11] , Penal Code S 24 (2)[cap26]
Cases cited:	Bara v Regina [2018] SBCA 10

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 186 of 2022

REX

V

NATASHA NEHA SHARMA

Date of Hearing: 9 August 2023
Date of Decision: 22 August 2023

Ms. Rachel Olutimayin for the Appellant
Mr George Gray for the Respondent

SENTENCE

Bird PJ:

1. This sentence is a consequence of my ruling of 4 July 2023 allowing the appeal by the appellant against the acquittal of the respondent in the lower court. I have received written submission on sentence from both the appellant and the respondent for which I am grateful. Both submissions were filed in court on 9 August 2023.
2. There is no dispute that a state of public emergency was declared by the Governor General on 25 March 2020 under s. 16 (2) of the Constitution. The Prime Minister under the Emergency Powers Act (cap 11) made orders and regulations. The relevant laws pertaining to this case are the Emergency Powers (COVID-19) (Prohibition of Entry of Non-Citizens) Order 2020 and the Emergency Powers (COVID-19) (No. 2) Regulations 2020.
3. It is submitted by Ms Olutimayin for the appellant that in the sentencing of the respondent, the court must consider and take into account the principles of retribution, general deterrence and prevention. I am referred to the case of Bara v Regina [2018] SBCA 10; SICOA-CRAC 36 of 2017 whereby the Court of Appeal stated that the sentencing judge should identify a starting point and must then take into account the aggravating and mitigating features therein. Effect should be made to early guilty pleas and pre-sentence periods of custody.
4. I have noted that the maximum penalty for this offending under clause 4 of the Emergency Powers (COVID-19) (Prohibition of Entry of Non-Citizens) Order 2020 as read with reg. 8 (1) (2) and (3) of the Emergency Powers (COVID-19) (No. 2) Regulations 2020 is 10,000 penalty units or imprisonment for 5 years, or both. Having said that, I am also aware that the court had a discretion to award a shorter sentence than the maximum sentence prescribed under section 24 (2) of the Penal Code (cap26).
5. It is submitted by counsel that there are several aggravating features in this offending. It is submitted that the timing of the offending was a crucial and trying time for the country. The nation was in a state of public emergency and it was during that state when the respondent entered the country. Had the respondent acted with due diligence, she would have found out that non-citizens were not allowed to enter the country without an exemption from the Prime Minister. The respondent knew that the country’s borders were closed but decided to enter with out an exemption from the Prime Minister. It is submitted that it has cost the relevant authorities significant monetary and human resources to investigate and bring the case to finality.
6. On behalf of the respondent, it is submitted that the respondent is 23 years old. She is married to a Solomon Islander. I am not informed whether or not they have children from their marriage. She is unemployed and she is living with her husband’s family at Henderson. She pleaded not guilty to the offence for which she is charged. I am told that she is supported by her husband who earns between $500.00 to $1,000.00 per fortnight.
7. I am further urged by Mr Gray to treat the appellant differently from the previous two cases dealt with by the Magistrates Court. He argues that the state of public emergency had elapsed and the order and regulations that she is charged under are no longer effective. It is therefore submitted that a fine be imposed on the respondent taking into account her current status in the country.
8. Having considered the circumstances of the offending by the respondent as well as the effect of law at hand, I will impose a fine on the respondent. Adopting the guidelines stipulated in the case of Bara, I put the starting point in this case for a fine of $2,000.00. For the aggravating features mentioned above I will increase the fine by $1,000.00. For the mitigating features and the fact that the state of public emergency had elapsed together with the fact that the respondent is sentenced after 2 years from the judgment of the Magistrates Court, I will reduce the sentence by $1,500.00. I hereby sentence the appellant to a fine of $1,500.00 to be paid within 14 days. I order accordingly. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge