Regina v Osifelo [2016] SBMC 32; Criminal Case 905 of 2016 (6 December 2016)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS )

(Criminal Jurisdiction)

Criminal Case No. 905 of 2016

REGINA
-v-
FRED MOURIASI OSIFELO

Prosecution: Mr. Mosese of Honiara Police Prosecutions
Defence: Accused in person
Plea date: December 1, 2016
Verbal Sentence delivered: December 1, 2016
Written sentence: December 6, 2016

SENTENCE

1. Fred Mouriasi Osifelo admitted that he carried out the sale of an illegal liquor called kwaso at the Central Market area on 30^th of November 2016. He also admitted in Court that he had already sold 6 szeba bottles of kwaso and still in the process of selling another 12 bottles of kwaso when he was seen by police and eventually arrested. In total, he carried 18 szeba bottles of kwaso for sale. He was 17 years of age and a Form 3 student at Mbua Valley Secondary School when he committed the offence.
   
2. The facts read out in Court which the accused had agreed to, showed that on 30^th November 2016 at about 12:50pm, the accused was selling bottles of kwaso at the Central Market in Honiara. Whilst during the course of selling the kwaso products, he approached an off duty police officer and tried to sell the kwaso to him. That officer immediately told him that he was a police officer and instantly arrested him on the spot. He was taken to the Market Police Post and conveyed to the Central Watch House for further interrogation. As a result of his admission of the commission of the offence, he was charged with one count of liquor for sale without license contrary to section 59(2) of the Liquor Act^[1].
   
3. At the outset, if I can point out that it now become a prevalent practice for youths in Honiara to indulge in the production and selling of this illegal and dangerous product called kwaso. This liquor is illegal and outlawed in our country since its introduction. The prevalence of the mass sale of kwaso in light of the past messages sent by the Court requires the Court to adjust its approach when dealing with offences regarding the selling of this illegal liquor.
   
4. A simple survey will inevitably show that most people in Solomon Islands have fed up of this illegal liquor. Its negative impacts it generates in our societies are numerous and catastrophic. It is one which contributes to a lot of social problems and even deaths in several instances. A lot of awareness has been given by police and village chiefs for the need to refrain from producing and selling it in our communities because of its negative consequences. Despite those numerous awareness, it seems the messages just fall on deaf ears by the concerned producers and sellers.
   
5. If the roles of the police and village chiefs to discourage this have been ineffective, undermined and ignored by the offenders and the last resort is for the Court to intervene then, the message will be simple and straightforward. That is, a strong deterrent message is expected so that any likeminded offender(s) must take a positive step to refrain from any attempt to commit this type of offence. Otherwise, there will be no real objective change at all and likeminded offenders will continue to take the risk of repeating it in future knowing that the Court will leniently punish them.
   
6. For the present case, there are few aggravating factors in this case. First, he already sold 6 bottles of kwaso and was about to sell another 12 more bottles. In total, there are 18 szeba bottles. This is a huge quantity of kwaso products that he carried with him to sell and one that significantly contribute to increase its distribution and consumption to the public. Second, he made a conscious decision to sell the kwaso and it’s not one that happened by spur of a moment reaction. He admitted in Court that he knew it’s not right to sell them at that time but decided to do the contrary. Third, he was a student at the time of selling the kwaso and his act is utterly contrary to what is expected from a student who trained to become a future leader.
   
7. For purposes of sentence, I treat him as a first time offender. I give credit to his early guilty plea and take into account that he was just 17 years of age. Therefore, he is a juvenile. I take cognizance that youthfulness is a powerful mitigating factor for his case. I have also considered that he was remorseful for what he did and the fact that he was a student at Mbua Valley. I understand that his education is very important to his future.
   
8. The sentence that I will pass must not only reflect his respective personal circumstances and mitigating factors but must also protect the public (especially people who continue to frequent or access the Central Market area for the sake of purchasing kwaso) by deterring those who are minded to produce and sell kwaso. The chain for the distribution and consuming of this hazardous and illegal liquor must be intercepted now otherwise, it will turn the central market area into a climate of drunkenness and a hub for sale of this illegal liquor.
   
9. I understand that he was a juvenile and subject to the Court’s sentence, his education may be affected or jeopardize by whatever sentence he will receive. However, he is a Form 3 student and he should have thought about the likely consequences of his action before doing things. To refrain from selling the kwaso products at the first place is not hard and complicated. This is just common sense and more so for him as a student. He instead disregarded the obvious and embarked on the sale of this illegal liquor.
   
10. In terms of sentence, I am obliged to consider him as a young person under the Juvenile Offenders Act.^[2] This regime creates special treatment to young offenders and gives 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.
    
11. The maximum penalty for this offence is a fine of $1,500 for a first time offender. The corresponding imprisonment term is 2 months imprisonment.
    
12. Sentencing is a matter within the discretion of the Court. Since he entered a guilty plea, his expected sentence must be less than the maximum penalty. In light of the need for deterrence of this offence which is prevalent especially in Honiara, I sentenced him to 40 days imprisonment.
    
13. Times spent in custody are to be taken into account.
    
14. Order for RSIP to destroy forthwith the kwaso products that were confiscated from the defendant.
    

...........................................................................
THE COURT
[Augustine Aulanga – Principal Magistrate]

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^[1] 2004
^[2] Cap 14