R v Kelly [2005] SBMC 3; GMC 215 of 2005 (2 September 2005)

IN THE MAGISTRATES COURT HELD AT GIZO

Case No 215/05

R

-v-

JIM KELLY

Before Deputy Chief Magistrate K F Chapman

2 September 2005

Mr H Kausimae for the DPP
Ms E Garo for the Defendant

SENTENCING

At trial I found the defendant guilty on all four Counts.

Counts 1- 4

Each Count related to demanding property with menaces things capable of being stolen S295 Penal Code. The facts of each Count are very similar and there really is nothing to distinguish them.

The facts

The facts are set out in the judgment.

Comments on the offence

The offences took place in the Solomon Islands close to the boarder of Bougainville. There is clearly some ill will about ownership of land and the distribution of royalties from logging.

Penalty

Imprisonment for 5 years

The personal circumstances of the offender

The offender is a family man with no regular employment. He is a Bougainvillian married to a Solomon Islander.

I am told his wife is not well and is in need of help from him. She is currently living with the defendant’s parents who are old.

He is 42 and has two children 9 & 4.

Prior offences

The Defendant has 7 previous convictions and was last sentenced on 12/12/90 for several offences the longest sentence being 12 years for armed robbery.

Mitigating and aggravating facts

It is of concern that

1. the offences took place so close to the boarder of the two countries
2. the Defendant entered the Solomon Islands to commit the offences
3. the offences related to land issues and royalties from logging of land within the Solomon Islands.
   

On the other hand the menaces did not relate to people and no weapons were used. Counsel for the Defendant argued that the threats would not have resulted in harm to individuals. That submission overlooks the fact that there was an inherent danger to people if the defendant carried out his threats.

Counsel for the defendant submitted that a short sharp sentence is what is needed and I should consider the family circumstances of the accused and his rehabilitation. Whilst that submission has some appeal it overlooks the fact the defendant has not long ago served a significant period of imprisonment and has not mended his ways. I am told he was released on licence on those charges in 1995. Clemency was shown to the Defendant then and he has shown little regard to it. These offences were offences of violence and the public has a right to be protected from such behaviour.

Despite the personal circumstances of the Defendant, in all of the circumstances I consider a custodial sentence is called for. And Counsel for the Defendant concedes that. I am firmly of the view that a short sharp sentence is inappropriate.

Sentence

The maximum penalty for each offence is 5 years imprisonment. The circumstances of the case would warrant a sentence towards the middle of the range. I consider in all the circumstances and taking into account the Defendants antecedents a sentence of 2 ½ years on each count is warranted.

Totality of the sentence

Although each Count took place on separate dates and thus in truth are separate and distinct matters justifying separate sentences I consider four separate sentences of 2 ½ years would be excessive in the circumstances of this case.

That matter can be dealt with by having the last two periods of imprisonment served concurrently on the first two.

Sentence

I consider a term of imprisonment of 2 ½ years on each Count the second period to be served cumulatively on the first and the remaining two to be served concurrently. The periods of imprisonment I have imposed should commence from the date the defendant was taken into custody for these offences.