R v Fini [2005] SBMC 4; CMC 975 of 2005 (14 September 2005)

IN THE CENTRAL MAGISTRATES COURT
OF THE SOLOMON ISLANDS

Case No 975/05

R

-v-

MARTIN FINI

Before Deputy Chief Magistrate K F Chapman

14 September 2005

Mr H Kausimae for the DPP
Mr Ashley for the Defendant

SENTENCING

At trial I found the defendant guilty on Counts 1,2,5,6 & 9 and not guilty on the others. For convenience I will deal with each count separately but have taken into account the totality principle in assessing the penalties and have made several comments in this regard.

Count 1

Demand property with menaces things capable of being stolen S295 Penal Code

The facts

The facts are set out in the judgment.

Comments on the offence

The offences took place during the tensions by a then serving police officer and the menace was made to a police officer. Further the vehicle was taken despite the fact a senior officer endeavoured to talk the defendant out of his actions.

Penalty

Imprisonment for 5 years

The personal circumstances of the offender

The offender was a police officer and the offence took place at the police station at which the offender was stationed.

He is married with 6 children ranging in age from 8 years to 6 months. He was the only one working.

Prior offences

Nil

Mitigating and aggravating facts

The property in question was a Police Monitoring Council vehicle, which had been involved in an accident and for that reason was impounded at the police station for inspection. One would have expected the defendant would have known this. If he did not this was made known to him at the time.

The incident took place during the tensions, which at the very least added to the fear of the police officer and the menaces were made to a police officer in the execution of his duty.

The offender did not heed the direction of a superior police officer namely Inspector Filia.

In my view each of these are aggravating facts.

The defendant defended the charges and thus is not entitled to a discount for an early plea. Indeed I am not persuaded there are any mitigating factors in this case.

In all of the circumstances I consider a custodial sentence is called for.

Sentence

Imprisonment for 2 years

Count 2

Wilful and unlawful damage S326 Penal Code

The facts

The facts are set out in the judgment.

Comments on the offence

The vehicle was a police vehicle with one of the occupants being a superior officer in the course of his duties.

Penalty

Imprisonment for 2 years

The personal circumstances of the offender

The offender was a police officer and the property was police property.

His family circumstances are outlined above.

Prior offences

Nil

Mitigating and aggravating facts

The property in question was a vehicle belonging to the Solomon Island police force. The offender would have known this. Superintendent Tagini, who was known to the defendant, was an occupant of the vehicle.

The incident took place during the tensions.

In my view each of these are aggravating facts.

Apart from the replacement of the broken windscreen by the defendant I am not persuaded there are any mitigating factors in this case.

The damage to the vehicle was not substantial and in isolation the offence would not warrant a custodial sentence particularly as the windscreen has been replaced.

Totality of the sentence

It may be that a custodial sentence would be appropriate given the circumstances in which the offence took place. However in considering the totality of the sentences I do not propose to follow that course.

Sentence

Fine of $ 800.00 with no time to pay. In default of payment 5 months imprisonment. Any period of imprisonment to be cumulative on Count 1.

Counts 5 & 6

These charges relate to intimidating two different people and are brought pursuant to S231 (1) Penal Code

The facts

The facts are set out in the judgment.

Comments on the offence

The offences took place in circumstances where gunshots were fired, two buildings were set on fire and there were at least two masked men carrying guns.

Penalty

Imprisonment for 3 years

The personal circumstances of the offender

The offender was a police officer. His family details are outlined above.

Prior offences

Nil

Mitigating and aggravating facts

The incident took place during the tensions, at a time when two buildings had been set alight, the defendant and others were masked and guns had been fired. This added to the fear of the complainants.

The defendant was a police officer and should therefore set about upholding the law not acting in a lawless and irresponsible manner.

In my view each of these are aggravating facts.

The defendant defended the charges and thus is not entitled to a discount for an early plea. He endeavoured to hide his identity and discredit the complainants’ evidence. Indeed I am not persuaded there are any mitigating factors in this case.

These are serious offences and given the circumstances, which prevailed, warrant custodial sentences of a substantial period.

Totality of sentence

An appropriate sentence on each charge would be imprisonment for 2 years. The totality principle would be satisfied by having each served concurrently on each other although to be served cumulatively on Count 2 in the event the fine is not paid or on Count 1 if the fine is paid. Although these were separate and distinct offences they took place at the same time.

Sentence

Imprisonment for 2 years on each count to be served concurrently on each other although to be served cumulatively on Count 2 in the event the fine is not paid or on Count 1 if the fine is paid.

Count 9

This Count relates to obstructing court offices in the lawful execution of an arrest warrant pursuant to S 128 Penal Code.

The facts

The facts are set out in the judgment

Comments on the offence

The police officers were in possession of a warrant to arrest the defendant in relation to a number of very serious charges that is evident from the charges dealt with during the course of these trials.

Penalty

Imprisonment for 1 year

The personal circumstances of the offender

The defendant was previously a police officer. His family details are set out above.

Prior offences

Nil

Mitigating and aggravating facts

It is apparent form the evidence that the police officers arrived at the premises where the defendant was working to execute a warrant and asked if Martin Fini was present. The defendant did not identify himself and when specifically asked if he was Martin Fini denied this and gave a false name.

He had been a police officer for some time and well understood police procedure and his obligations to comply with the lawful directions given to him. This he failed to do.

This behaviour strikes at the very heart of law and order in society.

Totality of the sentence

This as a separate and distinct offence and the penalty I intend to impose is consistent with the totality principle.

Sentence

Whist obstructing court officers is a serious offence this is not at the highest end of the scale. There certainly was obstruction and the defendant clearly hoped to avoid detection but there was no physical force used by him.

I consider a term of imprisonment of 5 months to be served cumulatively on Count 6 is an appropriate sentence.

The respective periods of imprisonment I have imposed should commence from the date the defendant was taken into custody for these offences.