Regina v Ologa [2016] SBMC 34; Criminal Case 1125 of 2013 (20 December 2016)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

(Criminal Jurisdiction)

Criminal Case No. 1125 of 2013 & 995 of 2016

REGINA
-v-
TOM OLOGA

Prosecution: Mr. Mosese of Police Prosecutions
Defence: Accused in person
Plea date: December 15, 2016
Sentence delivered: December 20, 2016

SENTENCE

1. Tom Ologa pleaded guilty to two counts of restriction on making liquor contrary to section 50(2) of the Liquor Act 2004 after he preferred the Court to read over the charges to him for purposes of plea.
   
2. These offences occurred on two separate occasions. One in 2013 and the other or final one in 2016. For the first offending, he was under a warrant of arrest for his failure to attend Court since 11^th November 2013. His warrant of arrest matter was still outstanding until his apprehension for the new offence which is exactly the same offence he committed in 2013.
   

First offending - 2013

3. The facts of his first offending in 2013 revealed that on 17^th October 2013 at about 10:00am, Central Police conducted an operation targeting illegal production or brewing of the illegal liquor called kwaso. Being suspicious of the accused premises, a search warrant was issued to search his house at Kukum labour line area. Police entered his premise and conducted a search on his house. Police found implements or utensils used in the production of kwaso discovered about 239 litres of kwaso at his premise. All were confiscated.
   
4. He was arrested and conveyed to police for interrogation. He admitted that he and his nephew did the illegal brewing of the kwaso.
   

Second offending - 2016

5. The facts for the second offending revealed that again on 14^th December 2016 at about 11:30am, police mounted an operation at his premise on information received that the accused was believed to have involved in the illegal brewing of kwaso. Police entered his area, found and confiscated the following implements:
   
   • (a) 13 x 2 litres distilled kwaso;
   • (b) 7 x 330 milliliters containing distilled kwaso;
   • (c) 1 x 60 litres bucket containing distilled kwaso;
   • (d) 2 x 200 litres rubbish bin containing fermented homebrew;
   • (e) 5 x cylinder bottles; and
   • (f) Cooking utensils such as brash pipes.
     

Mitigating factors

6. In his allocutus, he was very remorseful indicting that he will not repeat it in future. I also take into account that he is a family man with two children and currently, he is a 57 year old elderly man. He said that he involved in the brewing of the kwaso on trial basis only. This explanation is ridiculous since the quantity of the implements were large and one that clearly indicted mass production of this illegal liquor and not one that merely on trial only as described by the accused.
   

Aggravating factors

7. There are few aggravating factors in this case. First, the accused repeatedly brewed this illegal liquor (kwaso). One in 2013 and one in 2016. He never learnt or refrained from doing it despite he was previously charged by police. Second, the amount of kwaso produced on both occasions was significant. This is a huge quantity of kwaso products that he produced and one that significantly contribute to increase its distribution and consumption especially to its consumers. Third, he made a conscious decision to produce it and not one that happened by mistake. Fourth, he produced it in a vicinity or area very close to Kukum Police Station. This is an act which showed no care attitude at its peak despite he knew he was brewing this illegal liquor next door to a police station. Finally, he produced it in a suburb and not one that was done in a remote or isolated area. The fact that he produced it inside that suburb where it can be easily accessed by public has the potential of inducing other persons to succumb into the temptation of duplicating the knowledge on how to produce it and runs the danger of breeding widespread production of kwaso.
   

Illegal production of kwaso and its negative effects

8. The production of this illegal liquor called kwaso is a criminal act and carries a maximum penalty of $30,000^[1] or 3 years imprisonment.^[2] This penalty reflected how serious our legislators viewed this offence and the need to seriously discourage it.
   
9. Since the introduction of this liquor, it has done no good to properties, individuals, families, communities and the country as a whole. It is not only hazardous, but it can breed widespread of black market outlets where cheap liquor can be brought and in turn translate that particular locality where it is produced to a climate of drunkenness and disorderliness.^[3]
   
10. A simple survey will simple 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. In short, it is one that contributes to a lot of social problems and even deaths in several instances. A lot of awareness has been given by the Court and the police for the need to refrain from producing 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.
    
11. If the roles of the police to discourage it 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 committing this liquor related offence. Otherwise, the offenders will continue to take the risk of repeating it in future knowing very well that the court will leniently punish them at the end of the day.
    

Decision on sentence

12. The maximum penalty for each charge is a fine of $30,000 or 3 years imprisonment^[4]. This fine and penalty clearly indicated that it is one of the most serious offences within the category or species of liquor offences. As a starting point, the Court must be conscious of that when sentencing offenders for this type of offending.
    
13. This brings me to consider what ought to be the appropriate sentence for his two charges.
    
14. First of all, if fine is to be considered as the option to sentence the accused for the present charges, the anticipated fine would be about $4,000 or even more for each charge. For the two charges, it is anticipated a minimum of $8,000 as the total fine in light of the need to deter this offending. Hence, this raises a question whether he is financially prepared to pay this total fine if the imposition of fine is the appropriate form of penalty.
    
15. The prosecution submitted that he earned about $700 fortnightly. This piece of information is significant because it shows whether or not he has the mean to pay any fine since the Court must be realistic with its sentence taking into account his current means of income. Therefore, in my view, a non-custodial sentence is not an option for me given his current means of income but, a custodial sentence is inevitably the appropriate form of penalty for the accused.
    
16. It is accepted that each case has to be decided on each own set of facts. It is also accepted that the technique of comparing past cases can be of limited value and provide an imperfect guidance as to the appropriate sentence in any given case.^[5] The principle of comparing cases ought to be carefully considered whether or not it has relevance to the maximum penalty provided by the legislature in light of the prevalence and widespread brewing of this liquor. The fact that our parliament has just recently passed the Penalties Miscellaneous Amendments Act in 2009 which increased its fine from $1,200 to $30,000 or 3 years imprisonment clearly shows how serious our legislators have viewed this offence. This is an increase of 25 times more than the previous monetary fine. Therefore, it is the Court’s duty to uphold and translate that intention objectively and not to suppress and overlooked the need for deterrence when it comes to sentencing.
    
17. If past sentences and the sentencing trend has failed to deter this offending and this offending continued to be sky-rocketed, the Court must be sensitive to this failure and adjust its sentence correspondingly with the increase of this offending. To put it short, if this offending is one at present become too prevalent despite past sentences and the ongoing police awareness, and if the Court continued to impose remorseful sentences that in the face of it is indirectly encouraging future potential offenders then, that judicial mindset needs to be changed. Otherwise, the Court will continue to confine or even comforting itself with the pattern of sentence that does little, if not, one that fails to deter this particular offending in light of its prevalence.
    
18. The sentence that I pass must not only reflect his respective personal circumstances and mitigating factors but must also protect the public in particular the youths and people who frequented his premise for purchasing of this illegal liquor. The sentence must also able to deter not only him but also those who are minded to indulge in brewing kwaso that if they commit this offence they too will face the same or similar penalty.
    
19. I understand that his family will be affected by his incarceration however, he, as a 57 year old elderly man should have considered the likely consequences of his actions before embarking on committing these offences on those two occasions. He should learn from the first instance but failed miserably. To refrain from producing the kwaso products at the first place is not hard and complicated. More so, for him as an elderly and married man.
    
20. I sentence him to 1 ½ year imprisonment for the first charge and 2 years imprisonment for the second charge. I order that his sentence is to be consecutive since these two offences are committed on different years. Therefore, he is sentenced to a total of 3 ½ years imprisonment. Any time spent in custody is to be deducted from this imprisonment term.
    
21. All the items used in the commission of these offences and confiscated by police be forfeited to Royal Solomon Islands Police and be destroyed forthwith.
    
22. 14 days right of appeal.
    

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

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^[1] See section 8 of the Schedule (No. 21) of Penalties Miscellaneous Amendment Act 2009
^[2] Section 50(2) of the Liquor Act 2004
^[3] For same sentiments see: R v Hellen Kasi HCSI-CRC No. 141 of 2009
^[4] Penalties Miscellaneous Amendments Act 2009 and Liquor Act 2004.
^[5] Sahu v Regina [2012] SBHC 122