R v Meke [2005] SBMC 7; GMC 215 of 2005 (25 October 2005)

IN THE PRINCIPAL MAGISTRATES COURT AT GIZO
IN THE SOLOMON ISLANDS

Case No 215/05

R

-v-

JOSEPH MEKE

Before Deputy Chief Magistrate K F Chapman

25 October 2005

Mr M McColm for the DPP
Ms E Garo for the Defendant

SENTENCE

The Charge

The defendant pleaded guilty to the charge of breaking and entering a dwelling house at night and stole property there from contrary to S 299 of the Penal Code.

The facts

The facts were agreed and reduced to writing in a document produced by the prosecution. The Caution Statement was also produced by consent for the purpose of sentencing.

Comments on the offence

This is a serious offence as is indicated by the penalty of life imprisonment provided for in the Code. A term of imprisonment will almost always be imposed.

Penalty

Section 299 of the Penal Code (Ch. 26) states:

‘Any person who in the night –

(a) breaks and enters the dwelling – house of another with intent to commit any felony therein; or

(b) breaks out of the dwelling – house of another having –

(i) entered the said dwelling – house with intent to commit any felony therein; or

(ii) committed any felony in the said dwelling – house,

is guilty of the felony called burglary, and shall be liable to imprisonment for life.’

Section 21 of the Penal Code states:

Principal offenders

21. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence;

In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission.

Magistrates’ Court (Increase In Criminal Jurisdiction) (1977) Order

Subject to the provisions of section 27(3) of the Magistrates’ Courts Act (Ch. 20), all Principal Magistrates’ Courts within Solomon Islands shall have jurisdiction to try any of the following offences:

Section	Statute	Offence
224	Penal Code	Acts Intended To Cause Grievous Harm Or Prevent Arrest
293	Penal Code	Robbery
299	Penal Code	Burglary
319	Penal Code	Arson

The personal circumstances of the offender

The offender is 25 years old and has three children.

Prior offences

The defendant has no prior convictions.

Mitigating and aggravating facts

Courts must consider ‘mitigating factors’ of equal importance to ‘aggravating factors’, see R v Peter Taku (Unrep. Criminal Case No. 3 of 1995; Palmer J; at page 3).

‘Aggravating factors’ include:

[i] the seriousness of the offence generally;

[ii] the modus operandi in committing the offence;

[iii] the use of weapons;

[iv] the defendant’s level of culpability;

[v] a breach of trust;

[vi] previous convictions;

[vii] repeated commission of offences;

[viii] period of which offences are committed;

[ix] whether the offence was committed in the night-time; and

[x] consumption of alcohol.

Whilst prima facie the ‘seriousness of offences’ is reflected by what the law imposes as the maximum punishment, the other applicable ‘aggravating factors’ and any ‘mitigating factors’ will assist the court in determining the degree of seriousness for the offence in question.

Courts in Solomon Islands always consider imprisonment when a weapon is used, see Saukoroa v R [1983] SILR 275 at page 277 (Court of Appeal) & Michael Buruka v R (Unrep. Criminal Appeal Case No. 31 of 1991; Muria J; at page 4).

The ‘value of property’ involved in the commission of offences reflects the ‘seriousness’ of such offences, see R v Rex Topilu (Unrep. Criminal Case No. 35 of 1995; Palmer J).

Mitigating Factors

In Morris Bock v R (Unrep. Criminal Case No. 17 of 1993) Palmer J stated at page 3:

‘When passing sentence, the mitigating factors need to be assessed properly.’ (emphasis added)

‘Mitigating factors’ need to be taken into account before making the decision whether to impose a custodial sentence, see R v Francis Hori (Unrep. Criminal Review Case No. 118 of 1993; Palmer J) & R v Robert Mani (Unrep. Criminal Appeal Case No. 29 of 1997; Palmer J; at page 3).

‘Mitigating factors’ may include:

[i] the entering of a plea of guilty;

[ii] good character generally;

[iii] no / limited previous convictions;

[iv] co-operation with police;

[v] family circumstances;

[vi] youthfulness;

[vii] genuine remorse;

[viii] delay;

[ix] good work record;

[x] payment of compensation;

[xi] acting as an informer;

[xii] level of culpability;

[xiii] health of defendant;

[xiv] period in custody prior to sentencing;

[xv] motive; and

[xvi] risk of repetition.

Sentence

In Stanley Bade v R [1988 – 89] SILR 121 Ward CJ stated at page 125:

‘Burglary is an extremely serious offence. Anyone who breaks into a private house at night, however careful he may be to try and do it when the house is empty, runs the risk that there is someone inside. The effect on anyone who has been in a house when it is burgled can be extreme and may frequently have the same effect as an act of violence. Even where the house was unoccupied at the time of the burglary, the sense of violation felt by the owners when they return can have very long term effects. [...]

When sentencing offences of violence, a court will always consider the effect on the victim in deciding the appropriate sentence. In burglary also, that is an important consideration.

For a normal burglary case, the only appropriate penalty must be an immediate custodial sentence. Where the burglary is not aggravated in any way, the starting point for an adult first offender should be two years imprisonment. From that point, this court should consider any aggravating factors such as committing the offence with the support of others, theft of personal items that can be little or no value to the thief, general ransacking of the house, wanton damage, pre – planning and the degree of breaking necessary to gain entry. If such matters are present they should add to the penalty. Where masks are used, weapons are carried, threats are made or similar escalations in the seriousness of the sentence are present, the penalty should be further increased and it would rarely be appropriate to pass a sentence of less than four years.’

In R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996) Palmer J stated at pages 16 – 17:

‘[...] I am satisfied an immediate custodial sentence must be expected and imposed. The message must be made clear and plain that those who venture out at night, armed and break into people’s homes and attack people in their homes must expect to be sent to prison. People are entitled to feel safe and secure in their homes (whether they have a fence around and good locks on their doors or not), and to have a good nights sleep and rest without being disturbed. It is plain common sense that a person's house is out of bounds to anyone whether in custom, the law or whatever religious beliefs that one might have. (In English law, an Englishman’s home is known as his castle, a place of refuge and safety). It is the same here, and the courts have a duty to protect society from such persons with criminal minds. The element of deterrence therefore must be borne in mind and applied so that at least persons who are minded to do such things can at least think twice or again before venturing out in such activities full well what they might face if brought to the courts.

I take note of the submission of learned Counsel for Prosecution in the circumstances of what he described as a trend developing in Honiara of people taking the liberty to break into people’s homes, that the Courts must send out a clear and distinct sound to the Public on such matters. However, I do not need to repeat what in my view had been a consistent approach taken by this Court and the lower courts, on such matters. I am not aware that the lower courts may have been taking a less serious view of such offences. Rather, it is my understanding that the courts have continued to apply a firm hand on such offences and if there is any indication that this may not be the case, then let it now be dispelled that the courts must and will continue to take a firm hand on such offences.’ (emphasis added)

The dwelling house broken into was part of a logging camp and in that sense was not a “private” dwelling house. None the less employees at the camp lived there and were entitled to do so peacefully. For all intent and purposes this was their home. Given the cases referred to above and the fact that some of the employees of the company lived at the camp the starting point in this case would be imprisonment of at least two years.

By way of aggravation one of the persons confronted was a police officer, doors were smashed, it took place at night, the defendant was in the company of six other men, the sleeping quarters of two men were invaded, masks were worn, a gun and an axe were carried and a shot was fired into the air as the group left. As one would expect the men from the camp were frightened by the incident.

In addition to this the value of the property taken was $233,000 plus a sum of $32,000. $151,000 worth of property has been recovered thus a significant amount of property is still not recovered. It is said the defendant did not know of the money taken. That may be but that was a likely consequence of the actions taken by the group which he was part of.

Given the circumstances of aggravation I would have thought a period of imprisonment in excess of five years would be appropriate.

There are however circumstances of mitigation. The defendant pleaded guilty but this was late in the peace and in my view should not be given much weight. The defendant is relatively young, has a family and has no prior convictions.

Further, the defendant has surrendered some property, did not know of the money taken, named his accomplices and generally cooperated with the police. From his Caution Statement and the cooperation with the police he seems to show remorse.

Although in isolation it is difficult to ascertain the extent of his participation in this enterprise it does not seem to be at the high end. One does not have the sense he was a ringleader. Indeed the facts as presented would indicate otherwise.

Whilst he has been denied participating in some significant family matters since he has been in prison for this offence I do not consider this should significantly reduce any period of imprisonment imposed. That is a consequence of his actions for which he must take responsibility. I have non the less taken that and all of the other mitigating factors into account in reducing the sentence that would otherwise be imposed.

Taking all of the relevant factors into account I consider a period of imprisonment of 3 ½ years is an appropriated sentence. That period is to commence from the time he was taken into custody for this offence.