Regina v Waiti [2016] SBMC 17; Criminal Case 1534 of 2015 (6 July 2016)

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

Criminal Case No: 1534 OF 2015

REGINA

V

ARON WAITI

Prosecution: Mr. I. Tebakota of Police Prosecutions Office (PPO)

Defence: Mr. G. Gray of Public Solicitors Office (PSO)
Plea Date: April 13, 2016
Sentence Delivered: July 6, 2016

SENTENCE

[1]. On 13^th of April 2016, you pleaded guilty to one count of burglary contrary to section 299(a) of the Penal Code. The offence involved the illegal entry into John Anita private house and theft of his personal properties at Kwaio valley, East Honiara. Since the arraignment, this matter was adjourned for 8 occasions for your lawyer to file his written submission for your mitigation. Nothing forthcoming. Rather than to continue to wait for an indefinite period, I decided to deliver your sentence despite no written submission on your behalf. It is quite unfortunate that your lawyer has left you to face this predicament.

[2]. The offence you committed is a very serious offence. It carries a maximum penalty of life imprisonment.

[3]. You were only 16 years of age when you committed the offence. On 18^th of February 2013 at about 2:00am, you broke and entered a dwelling house of the complainant by the name of John Anita. When you inside that house, you then removed these following items:

• (i) 1 Samsung touch screen mobile worth $890.00
• (ii) 1 Hous mobile worth $400
• (iii) 1 Nokia mobile worth $1,300
• (iv) 1 pair of speaker worth $450
• (v) 1 hand bag from Belona worth $100
• (vi) 1 full chicken
  

[4]. The total value of those itemswas $3,140.

[5]. During the course of police investigation, only the speaker and Hous mobile phone were recoveredwhilst the rest were still missing. By calculation, the value of the missing items was $2,290. I have looked at the prosecution’s written submission and there was not any mention that police would still able to recover those items in future. Since the incident had occurred more than 3 years ago, I doubt this will happen. Only the effect of it continues to remain. That is, the owner of these properties is now permanently being deprived off the use and enjoyment of his valuable properties.

[6]. Deduced from thesummary of facts, the following are the aggravating features of your offending:

• (i) The circumstance surrounding your participationin the offending involves an element of planning. First, you selected the house of John Anita. Second, you have to wait until 2:00am being an odd hour of the night before you broke and entered his house. This shows your entry into his house is not accidental but pursuant to a plan or decision deliberately made to enter into Anita’s house. You have successfully carried it out and accomplished your mission that night.
  
• (ii) The valueof the items you stole is $2,290. This is quite a significant amount of money. It shows these items are valuable items as reflected by its total value.
  
• (iii) Your act of entering into the dwelling house of John Anita for the sole purpose of stealing at that early part of the morning showed total disrespect to other people’s property. It is an outright display of no care attitude at its peak towards other people’s privacy and property.
  
• (iv) You caused loss of property to the complainant and permanently deprived him from the use and enjoyment of his personal properties.
  

[7]. In terms of the mitigating factors, the following are the identifiable ones for your case:

• (i) Your guilty plea which saves the Court’s time and resources. It is alsoreflective of your honesty and remorse for what you had done.
  
• (ii) You have no prior conviction. In other words, this is your first time to be sentencedbeforea Court.
  
• (iii) You were a married person with no children. This means that you have a family who will be affected by your incarceration.
  
• (iv) You committed the offence when you were 16 years of age and not matured in your thinking. Given your immature age, it shows you did not think properly about its likely consequences when you committed the offence.
  

[8]. I have taken into account all those aggravating and mitigating features for purposes of your sentence.

[9]. The facts of your case revealed you committed this offence when you were only 16 years of age. You begin your young life by committing a very serious offence involving unlawful entry into other persons’ dwelling house at an odd hourof the night for the sake of stealing.This type of offending has been strongly condemned and won’t be ever accepted by our Courts or our communities. Very often, innocent people are being targeted and ripped off of their valuable properties at the hands of selfish and irrational individuals like you who have no-care attitude. The vast majority of our people in Solomon Islands are tired of this type of offending and desire to live in a society that is peaceful and harmonious, and not one that is dominated by thieves and thugs. Hence, if the trend of this offending is on the rise then the Court as the institution which the people of this country have put their faith and trust to deter this type of offending must not turn a blind eye to it in terms of sentencing. The Court will be failing its duties if it is too merciful with offenders like you in the instant case who commit a very serious offence under the cloak of youthfulness.

[10]. In your case, you should respect the complainant’s house whether or not it is fenced.Common sense should tell you that the house you broke into that night belongs to another person. You have no right to enter into his house especially at that odd hour of the night unless you are invited. Therefore, you have committed an unlawful act when you decided to enter in his compound and then broke into his private house that night.

[11]. For serious offences involving invasion of person’s privacy and property, the message from the Court is simple and straightforward. That is, the Court will not easily tolerate such offending and hence, a clear and deterrent message must always be sent to discourage this type of offending. This is to ensure inhabitants of this country regardless of ethnicity, race, colour and creed live in a society where people’s privacy and property are guaranteed, respected and better protected.

[12]. In terms of sentence, I am obliged to consider you as a young person under the Juvenile Offenders Act^[1]despite you are now a married person at the time of sentence. This regime created special treatment to young offenders and give license to the Court to sentence them on a special consideration not available to adults. In particular, I am mindful of the application of sections 12 and 16 of the said Act. However, section 16(j) of that Act provides for imprisonment as one of the sentencing options for young persons.

[13]. The offence you committed is a very serious offence as reflected by its maximum penalty of life imprisonment. It is a harshest penalty provided by our law-the same penalty provided for a conviction for murder or rape for example. Therefore, custodial sentence is an inevitable appropriate sentence.

[14]. In terms of whether to sentence you as a young or an adult person, our Courtsseemed to consider the date of offending other that the time of sentence as the relevant consideration for purposes of sentence.^[2]

[15]. I take into account your youthfulness is a strong mitigating factor. In your case, despite you are a married person, you are still in your young age. Hence, your young age ought to be consideredfor purposes of your sentence.

[16]. In R v Anika,^[3] Faukona J, emphasised that custodial sentence is inevitable for young offenders for offences involving house break-in. He then referred to the case of Paroke and Kuper v R,^[4] and adopted the following remarks from Muria CJ:

"I do not accept the suggestion that because an offender is young and first offence, he should not be sent to prison. In cases of serious crime, and house breaking is such a crime, the court must reflect the seriousness of the crime in the sentence they pass upon a young offender".^[5]

The message is clear and plain. Anyone convicted of serious offences as store breaking or housebreaking expects a custodial sentence immediately, even first or younger offender. That will reflect how serious the offences are.”^[6]

[17]. I concur with his Lordship’s implicit reasoning of the need for deterrence for serious offences regardless of a young offender when it comes to sentencing.

[18]. The sentences imposed for this offence for young offenders depends very much on the circumstance of each case.My limited research revealed that sentences for this offence for young persons under the Juvenile Offenders Act ranged from 6-12 months imprisonment. This of course will depend on the presence of any aggravating feature(s). In other words, the more aggravating the case, the greater the penalty expected. Conversely, when the case is not aggravated, then the sentence should also be less.

[19]. In the case of R v Kohili,^[7] the defendant who was 15 years of age at the time of the offending pleaded guilty to number of theft related offences including burglary. In relation to the burglary offence, he broke into a dwelling house of WikimanRubaha between 3am-7am at the time of the offending. He stole a number of electronical items including other personal items of the complainant. However, the complainant managed to recover all those items through the help of his close friend and the public. He was sentenced to 6 months imprisonment because he was a juvenile and more importantly, all the items were recovered from him.

[20]. In another case of R v Dennie, Maeka and Weba^[8],the appellants were sentenced to 18 months imprisonment by the Gizo Magistrates Court for the charge of burglary. Dennie and Weba were 16 and 17 years of age respectively while Maeka was 22 yearsat the time of the offending. They appealed against the failure to afford them a lawyer for their mitigation and also, against the excessiveness of the sentence imposed by the Magistrate.Kabui J, after considering their respective roles as only aiders and abettors but not the ringleader resentenced them to 12 months imprisonment. He then further ordered Dennie and Weba to release from custody and enter into bond each to appear and receive sentence when called upon within a period of twelve months from the date of the sentence imposed by the Magistrate Court.

[21]. In your case, most of the properties valued at $2290 were never recoveredand has left the owner permanently deprived of his properties. This is a significant amount of money that cannot be easily earned in order to repurchase those stolen properties. Also, you were the sole principal offender. Hence, this differentiates your case from the case of Kohili and Dennie&Ors. In my view, the sentence to reflect your level of offending should be well above the sentences imposed for Kohili and Dennie and Ors.

[22]. I have noted that there is a delay of more than 3 years to complete your case since the time you committed this offence. The Court’s record shows that you were charged on 7^th of March 2013 and bailed to appear at the Central Magistrates Court on 25^thof March 2013. You continued to appear until 20^th of May 2013 when you failed to turn up and warrant of arrest was issued against you. That was only 2 months after your case was registered in Court. You never turned up until you were rearrested on 1^st of December 2015, a period of 2 years and over 6 months since you last appeared in 2013.

[23]. Your case then proceeded normally for mention. On 26^th of January 2016,you were allocated a lawyer from PSO. By 15^th of February 2016, full disclosure for your case was hand delivered to your lawyer. On 13^th of April 2016, you were arraigned and pleaded guilty to this charge. Direction was given for the defence and the prosecution to file the agreed summary of facts with their respective sentencing submissions on 5^th of May. Only the prosecution had complied. From 5^th of May – 4^th of July, this matter continued for mention to give time for your lawyer to file his submission. Nothing forthcoming despite that over leniently and lengthy period. A period of 2 months has been unnecessarily wasted of what could have been less than 2 days or even less, to prepare the written submission and file it in court.

[24]. When the history of this case is considered to decide who is to be blamed for the delay, clearly, the substantial delay caused in this case should be attributed to yourselfon one part and your lawyer on the other part. Hence, I will not put much weight on the delay issue in this case except to say that there is at least some delay caused by the Court during the normal hearing of your case during the course of this year.

[25]. In conclusion, based on the reasons I have outlined, the appropriate sentence in my view for your case is 2½ years imprisonment. I reached this sentence after I have carefully considered all the mitigating, aggravating, the need for deterrence and some delay caused by the Court to have your matter eventually finalised.

[26]. 14 days right of appeal applied.

ORDERS OF THE COURT

(A) Impose2½ years imprisonment.

(B) Period spend in custody is to be deducted from this sentence.

....................................................................................
THE COURT

Augustine Aulanga - PM

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^[1] Cap 14
^[2]Pese v R [2008] SBCA 10
^[3] [2008] SBHC 91; HCSI-Criminal Review Case 762 of 2008
^[4]Unrep Criminal Case No. 21 of 1999
^[5] At page 2
^[6] At page 2 of Anika’s case
^[7]CMC-CRC. No. 201 of 2015
^[8] [1998] SBHC 90; HCSI-CRAC 12 of 1998