Regina v Rikiloni [2015] SBMC 2; Criminal Case 674.2014 (22 April 2015)

IN THE CENTRAL MAGISTRATES COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)

Criminal Case No. 674 of 2014

REGINA

V

JIMMY RIKILONI

Coram: AULANGA (Magistrate of the First Class)
Prosecution: Ms. Fonota of Police Prosecutions Office (PPO)
Defence: Accused in Person
Plea date: April 20, 2015
Sentence delivered: April 22, 2015

SENTENCE

1. On 20th of April 2015, Jimmy RIKILONI ("the accused") pleaded guilty to one count of simple larceny contrary to section 261 (1) of the Penal Code. The maximum penalty is 5 years imprisonment.
   
2. The facts of the case showed that on the 10th of July 2014 at the central market area in Honiara, the accused stole two boxes of electrical supplies from a vehicle driven by Bruce Thomas Wale. The accused escaped with the boxes and passed them over to other unknown person when he was searched by the police. The accused was located however, the boxes were never recovered by the police.
   
3. The prosecution submitted to the Court to consider the following aggravating features. They are:
   
   • (i) The items were not recovered;
     
   • (ii) The accused avoided the course of justice as he was arrested under a warrant of arrest; and
     
   • (iii) The accused had 10 previous convictions.
     
4. Court accepts the first and third aggravating features but put less weight to the second aggravating feature because it has no relevance to the offending itself. Any submission to any warrant of arrest will only be relevant for any issue of delay should this issue is raised in Court. However, the Court found that as a result of the electrical supplies not recovered, the owner of the items must have incurred loss of the properties as a result of the accused action. This I found this to be another obvious aggravating feature to this case.
   
5. The prosecution recommended that a custodial sentence is the appropriate sentence to be imposed on the accused.
   
6. The accused stated that he was single and unemployed. He committed the offence because he was drunk with kwaso. He was sorry for what he did as reflected in his guilty plea. He lived with his relatives at Mbokona area. His relatives and family members in town did not support him financially. He said that those boxes were taken away from him by police after he was located by police. Whether this is true is something which the prosecution should have known off.
   
7. The accused had 10 previous convictions. Those previous convictions ought to be considered in assessing the accused character and his likelihood of changing his ways as stated in R v Su'umania[1] where CJ Ward stated in relation to sentencing offenders with previous convictions:
   

"When sentencing persistent offenders the court must make protection of the public the principal consideration in determining the length of sentence.

It is well settled however that even in such cases the sentence must be still be appropriate to the offence and the court must be careful not to sentence the accused for his previous convictions as was explained by Spreight JA in Kaboa v. R (1980/81) SILR 43 at 46. Thus, whilst previous good character may reduce a sentence, previous bad character cannot increase it beyond the proper term but the court can and should consider previous convictions in assessing the character of the man before it and the likelihood of his changing his ways (underlined mine)."[2]

8. The accused is a 23year old young person. His criminal history showed that a significant portion of his previous convictions were theft related. Two of them involving robbery cases. He first confronted this Court when he was 16 year old or in other words, when he was a juvenile. Whether it was the influence from his peers or the environment that he raised in, it cannot be said that resort to criminal activities is the available option for him in life. It is unfortunate for him that instead of focusing on positive ways to build up his youth life, he instead chose to involve in criminal activities.
   
9. The offence of simple larceny is a serious offence as reflected by its maximum penalty. In Regina v Kemakeza[3]CJ Palmer stated:
   

"the level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty. The more serious an offence the greater the maximum penalty imposed"[4].

Each case must be considered on its own unique facts and circumstances (see Ahi v Regina).[5]Past cases can only be used as a guide in determining the appropriate sentence. This Court is empowered to utilise the maxim penalty provided by the legislation and can impose sentence that is fair and reasonable in light of the circumstance of each case. A glean from the past cases decided more than a decade ago showed a sentence range from 6 months to 9 months.

10. In R v Pandavisu[6]the learned Chief Magistrate sentenced the accused to 9 months imprisonment on a charge of simple larceny. Ward CJ while reviewing that case, altered other sentences imposed on the accused but confirmed the sentence of 9 months on the charge of simple larceny.
    
11. In Eapa v Reginam[7], the appellant pleaded guilty to simple larceny. He stole a CD player from his friend's house. He was sentenced to 9 months imprisonment by the LTM. On appeal Kabui J, as he then was upheld the sentence of 9 months but suspended it for 2 years because the CD was recovered. Kabui J, as he then stated that simple larceny is a fairly serious offence.
    
12. In Regina v Pilly[8] The accused was charged for store breaking and stealing contrary to section 300 (a) of the Penal Code. Accused pleaded guilty to the charge and was sentenced to 10 months imprisonment. On review before Kabui J, he set aside the conviction and sentence for store breaking and stealing and instead convicted the accused (prisoner) of simple larceny contrary to section 261. He sentenced him to 6 months imprisonment. This was a case in which the accused simply stole $1,700 from a store.
    
13. In the present case, the accused knew that the electrical boxes were not his properties, yet he took them as his own. Not only that, he escaped away with them and handed them to another unknown person. Those stolen properties were not recovered. His action showed that his intention was clearly to deprive the owner of the properties. This type of behaviour must be strongly discouraged otherwise, the prevalence of it would create our public place not safe for people to freely move around for fear of being robbed.
    
14. In R v Rafita[9], the Court when referred to R v Soni[10]stated that "it is time for our Courts to better utilise the scope of the maximum sentence made available to them by the legislature in a way that better reflects current sentencing and community needs and in a way that recognises the apparent contemporary ineffectiveness of benchmarks set so long ago.[11]In R v Chacia,[12] the Court stated the "level of past sentencing practice runs the danger of making a mockery of the maximum penalty provided by the legislature and risks a serious erosion of confidence and faith in the sentencing process within the community at large."[13]
    
15. In considering the appropriate sentence, the Court took into account issues of deterrence, retribution and rehabilitation (see R v Oge[14]). The aggravating features and mitigating features of this case were taken into account in deciding the appropriate sentence to be imposed.
    
16. This Court must also impose a sentence that sends a message to our community that any person(s) who committed this same offence will be punished. Neither the Courts nor the community can tolerate such offending and an appropriate sentence must be imposed.
    
17. On the other hand, Court gives credit to his guilty plea. This shows the accused is remorseful and saves the court's time and resources. The Court must also ensure he has prospect of reforming his character and attitude and thereafter upon his release, to be a responsible and good citizen of this country.
    
18. Having carefully taking all these into account and balancing them with the aggravating and mitigating features, the appropriate sentence in this case 8 months imprisonment. I order that this sentence is reduced by 1 month to reflect the accused guilty plea.
    
19. The resulting sentence therefore is that the accused will serve 7 months in prison. Time spent in custody is to be taken into account.
    
20. Accused has a right to appeal this sentence within 14 days pursuant to section 285 (1) of the Criminal Procedure Code.
    

ORDERS OF THE COURT

(a) Impose sentence of 7 months imprisonment.
(b) Time spent in custody is to be taken into account.

THE COURT

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^[1](Unrep. HCSI-CRC 00287)
^[2] At page 2
^[3] HCSI-CRC 467 of 2007
^[4] At paragraph 19
^[5] [2005] SBHC 53;HCSI- CRAC 124 of 2005 (29 March 2005)
^[6] [1990] SBHC 86; HC-CRC 1634-1990 (1January 1990)
^[7] [2001] SBHC 77; HC-CRC 248 of 2001 (2 November 2001)
^[8] [2001] SBHC 64; HC –CRC 074 of 2001 (5 September 2001)
^[9] HCSI – CRC 63 of 2011
^[10] [2011] SBHC 128
^[11] At page 3
^[12] HCSI CRC 95 of 2012
^[13] At paragraph 19
^[14] [2004] SBHC 72