Regina v Hayward [2016] SBMC 29; Criminal Case 534 of 2015 (1 September 2016)

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

Criminal Case No. 534 of 2015

Regina

-v-

Robert Hayward

Prosecution: Mr. B. Dalipanda of the Office of the Director of Public Prosecutions
Defence: Ms. T. Beneteti of Public Solicitors Office
Hearing: July 15, September 1, 2016
Ruling: September 1, 2016

Ruling on application for reconciliation under 35(1) of the Magistrates’ Court Act (As Amended)

1. This is an application by the defence to reconcile this matter under section 35(1) of the Magistrates’ Court Act (As amended)^[1]. For purposes of the background of this case, the defendant, Robert Hayward, was charged with one count of false pretence contrary to section 308(a) of the Penal Code.
   
2. The alleged offending involved a false representation made by the defendant to a person by the name of Robertson Dode to obtain a white Suzuki vehicle registered as A6349 on the promise that he would purchase it for $20,000. This took place in Honiara on an unknown date between 1^st October 2013 and 30^th November 2013. The defendant took possession of the vehicle but never paid for it as promised. Instead, he sold it to another person the following year.
   
3. Following prosecution and realizing that he will succumb to legal consequences, the defendant eventually gave $20,000 to the complainant sometimes this year. That is a period of almost three years since the vehicle was taken from the complainant.
   
4. For this application, the only issue for me to decide is whether the court can reconcile a charge of false pretence that involves a motor vehicle with a selling price of $20,000 at the time of the offending.
   
5. For purposes of my ruling, I am mindful of the requirements set out under section 35 (1) of the Magistrates’ Court Act and also the Practice Direction No. 1 of 1989 issued by then CJ Ward.
   
6. Section 35(1) of the Magistrates’ Court Act states:
   

“35.—(1) In criminal cases a Magistrate's Court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any offence of a personal or private nature not amounting to felony and not aggravated in degree, on terms of payment of compensation or other terms approved by such Court, and may thereupon order the proceedings to be stayed or terminated” (underlined mine)

7. There is no issue that a charge of false pretence is a misdemeanour and generally is reconcilable subject to two requirements under section 35 (1) of the said Act.^[2] These requirements are; first, it must be an offence of personal or private nature not amounting to felony and second, it is not aggravated in degree. The inclusion of the word “and” in the wording of this section shows that the applicant has to satisfy these two requirements together and should not merely rely on one in isolation.
   
8. I concur in principal with the defence submission that the offending arose from a personal and private arrangement or dealing between Robertson Dode and Robert Hayward. However, the matter does not end up there. The next consideration is whether it is not an aggravated form of offending so that it can be reconciled.
   
9. Hence, the simple question to answer is whether the $20,000 which represented the selling price of the vehicle at the time of the offending or even if I accept $8,000 as the current value of the Suzuki vehicle, as the subject of the false representation, is not an aggravated offence under section 308(a) of the Penal Code.
   
10. In my view, this amount of money is significant and one that obviously considered as an aggravating factor for this matter. Apart from this, there are other potential aggravating factors that can be deduced from the defendant’s alleged commission of the offence. They are; the loss of use, enjoyment and benefit of the complainant’s vehicle for a period of almost 3 years. Another is, the offending is one that is deliberate and intentional and one that cannot be said to happen by mistake.
    
11. The presence of these aggravating factors shows that this is a serious form of an offence under section 308(a) of the Penal Code and one that cannot be reconciled under section 35(1) of the Magistrates’ Court Act. To put it in another way, I can easily reconcile this case if it is not aggravated in any form or, if the value of the property is not significant for example - less than $1,000. To allow this matter to be reconciled in light of these aggravating factors will clearly breach section 35 (1) of the said Act^[3] and therefore, without legal basis.
    
12. It follows that I am not inclined to accept the application to reconcile this matter under section 35(1) of the Magistrates’ Court Act and therefore, I refused it forthwith. Consequent to this ruling, this matter should now proceed for re-arraignment.
    
13. 14 days right of appeal applies.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] 2014
^[2] Magistrates’ Court Act (As amended)
^[3] See footnote 1 above