Regina v Keho [2016] SBMC 7; Criminal Case 657 of 2015 (4 April 2016)

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

Criminal Case No. 657 OF 2015

IN THE MATTER OF: SENTENCE FOLLOWING GUILTY PLEA

BETWEEN: REGINA

AND: MOSE KEHO

Prosecution: Mr. A. Maelanga of Police Prosecutions Office (PPO)
Defence: Mr. J.R. Brook of Public Solicitors Office (PSO)
Plea Date: October 23, 2015 and February 4, 2016
Sentencing Submissions: March 21 and 30, 2016
Sentence Delivered: April 4, 2016

SENTENCE

1. You pleaded guilty to the following offences:
   
   • (i) One count of stealing of 1Getek Black Laptop, 2 external drive and 1 white Samsung mobile phone being the property of Michael Apuli. It carries a maximum penalty of 5 years imprisonment pursuant to section 261(1) of the Penal Code.
     
   • (ii) One count of threatening violence of Ms. EllenaPoiki contrary to section 89(a) of the Penal Code. It has a maximum penalty of1 year imprisonment.
     
   • (iii) Two counts of intimidation of the two victims Ms. EllenaPoiki and Ms. Melisa Kauolisi contrary to section 231(1) of the Penal Code. These offences were committed on separate occasions. For each count, it carries a maximum penalty of 3 years imprisonment.
     

Simple larceny

2. The summary of facts for the simple larceny chargerevealed that on 17^th of June 2015 between 2:00am and 3:00am, you went and entered the house of Michael Apuli at the Lord Howe settlement. At that timeApuli was sleeping. When you inside the house, you proceeded into the bedroom and removed1 Getek Black Laptop, 2 external drives and 1 white Samsung mobile phone. You escaped afterwards but were apprehended by some boys at the Lord Howe settlement. All the stolen items were recovered on that same night.
   
3. The following were aggravating features to this offending:
   
   • (i) You committed the offence at night which put the victim in a vulnerable position for the protection of his properties and himself in person. It is trite law that it is an aggravating feature when an offence is committed at night.
     
   • (ii) You planned to carry out this offending. You first decided to go into that house and preferred to carry out the theft at the odd hours of the night when most of the people are expected to be sleeping. You had carried out your mission and successfully removed those items, and escaped out of the house.
     
   • (iii) You disturbed the complainant that night and made him got up from his sleeping and had to chase after you for his properties. Your act can be described as disrespectful and having total disregard to another person’s privacy and property.
     
4. On the other hand, I take into account that you did not benefit from this offending since all the properties were recovered when you were apprehended by the boys from that settlement.
   
5. Besides, I take into account your guilty plea which reflects your honesty; you are single and 24 years of age. In my view, you are still a young person with a lot potential to reform and to be a law abiding person in future. However, you have 4 previous convictionsso I will not consider you as a first time offender.
   
6. The fact of your case is similar to the case of Eapa v Reginam^[1] where the property was recovered after theft. In that case, the offender was invited by the complainant for drink at his house. During the course of the night, the accused removed a CD deck and two speakers after the complainant went to bed. The accused confessed stealing the properties when confronted by the complainant. Only the CD deck was recovered after the incident.Kabui J, on appeal considered simple larceny as a fairly serious offence. He upheld the sentence of 9 months imprisonment imposed by the Magistrate but suspended it because the offender was a first time offender who showed good prospect of reform and rehabilitation.
   
7. In your case, you are not a first time offender, not an invitee to the complainant’s house and did not confess your wrongdoing to the complainant. The properties were only recovered after you were apprehended after a chase. It is not a case where you voluntarily returned the stolen items.If you were not apprehended by the boys, it would be a different story. Besides, your offending involves planning. You had to monitor the complainant until he slept before you entered his house and bedroom at the odd hours of that night. This is an inexcusable behaviour and shows total disrespect to other’s privacy and property.
   
8. Another disturbing factor is the fact that you have 4 previous convictions - all were larceny offences. The recent one was in 2015 where you were sentenced to 9 months imprisonment by this same court. In relation to sentencing of offenders with previous convictions, our law is clear as stated in R v Su’umania^[2]where Ward CJ, stated:
   

"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."^[3]

9. Despite your previous bad character cannot be used to increase your sentence beyond the proper term, the Court is entitled to consider your previous convictions in assessing whether there is likelihood that you will change your character and ways. This is important because of the need to protect the publicand also,the need to ensure you will change your ways to becoming a law abiding person when you release from prison.
   
10. After having carefully considered your level of culpability and balancing them with the aggravating and mitigating features, I sentence you to 10monthsimprisonment for this offence.
    

Threatening violence

11. In relation to the threatening violence offending, the facts of the case showed that on 28^th of June 2015 about 8:15am, you armed with a knife and walked in YE Kai Bar at Rove. When you entered that building, you slammed the main entrance door when the complainant Ms. EllenoPaiki (his aunt) and her employees were inside that building. You then threatened them by saying these words “bae me busamonefala lo iufala.” The complainant was very frightened of your threatening behaviour and reported the matter to police resulted in your apprehension.
    
12. There are few aggravating features for this offence. First, you armed with a knife being a dangerous weapon when you committed this offence. Second, the offence you committed is unprovoked and uncalled for in the circumstance. Third, you committed the offence in an environment like a mini-restaurant. It is a place where public accessed to have food because it is a Kai bar. Fourth, you did not only terrify the complainant, but the other employees who were present there as well.
    
13. In the case of R v Pedeleni^[4],I imposed 4 months imprisonment for the offender who pleaded guilty and committed this same offence with the use of a knife. For purposes of consistency, I decide to impose the same penalty of 4 months imprisonment for this case. This sentence was reached after I considered your mitigating and personal features referred to in paragraph 5 above.
    

Intimidation

14. Again on 1^st of July 2015, you went back in the same YE Kai Bar. This time round, you were drunk but still armed with a knife. You then approached the same complainant Ms. EllenoPaiki. Having seen you were drunk and armed with the knife, she told you not to cause any disturbance in the Kai bar. Instead, you pulled that knife placed behind your back, lifted it with your hand and replied to her saying “knife yanao bae mi possum lo anyone.”The complainant was very frightened and immediately called for assistance from police. Hence, police came and arrested you thereafter.
    
15. Besides you were drunk, the aggravating features in your threatening violence offence also applied to this offending. You committed this offence again just 3 days after your previous offending. You did not learn from it despite police had arrested you and charged you on 29^th of June 2015. The history of your conduct is quite disturbing and dangerous. You seemed to have a no care attitude with your public display of your anger when armed with knife especially towards your aunt. Whether your decision to intimidate her on this occasion was due to your personal grudges against her, this kind of attitude will not be tolerated by this Court and must be deterred accordingly.
    
16. The usual tariffs of the sentences for intimidation imposed by the Courts ranged from bound over^[5], suspended sentence^[6] and 6 monthcustodial sentence^[7] or even 2 years depending on the circumstances of the offending, the mitigating and aggravating factors and the personal circumstances of the offender.
    
17. In the case of Kilatuv R^[8] the accused pleaded guilty to one count of intimidating a taxi driver and other charges. He was sentenced to 6 months imprisonment and was confirmed on appeal in the High Court. In that case, no weapon was used, he was not drunk and a first time offender. That is the difference of Kilatu’s case in terms of the culpability to the present case.
    
18. In my view, after considering the circumstance of the offending, the aggravating, mitigating and matters personal to the offender, the appropriate penalty for your third offending is 8 months imprisonment.
    

Intimidation

19. In relation to your final offending, the facts showed that on 18^th of July 2015 at about 1:30pm, you again went in the same YE Kai Bar. You approachedthe complainant Ms. Melisa Koulusiand your blood sister. At that time, your sister was busy serving customers. You asked her for a knife but she refused. You got angry and picked up two cups and threatened her including other girls working in that Kai bar. Later, those cups were removed from you by another person who was also there at that time.
    
20. The same aggravating features I mentioned in your early intimidation and threatening violence charges also applied in this case. However, on this occasion, you were not drunk.
    
21. In my view, a sentence of 6 months imprisonment is the appropriate sentence after considering the circumstance of the offending, the aggravating, mitigating and matters personal to you.
    
22. Having imposed these sentences, the question now is whether those sentences should be concurrent or consecutive. It is trite law that the Court will apply concurrent sentence subject to the aggregate or totality of the sentence if the offence committed does not form part of the same transaction and not against the same person. If the offences are from a single transaction then concurrent sentence is the appropriate approach.
    
23. Applying the above principle to this case, I reached the following conclusion:
    
    • (a) The sentences imposed for counts 2, 3 and 4 are to be servedconcurrently since they all formed part of the continuing act of the accused against the same victims and at the same location. Thus, they are considered as part of the same transaction and therefore, out of the 3 sentences, the accused will only serve 8 months imprisonment.
      
    • (b) This 8 months concurrent sentence will be consecutive to Count 1, meaning a total of 18 months imprisonment is the overall sentence imposed for all offences.
      
24. I order that 4 months is deducted from this total sentence for the delay to have this matter finalised and also to reflect the totality principle to be applied for this case. The resulting sentence is that the accused will serve 14 months imprisonment. Time spent in custody is to be taken into account.
    
25. Accused has right to appeal this sentence within 14 days as of the date of this sentence.
    

ORDERS OF THE COURT ARE AS FOLLOWS:

(A) Impose total of 14 months imprisonment for all offences.

(B) Time spent in custody is to be taken into account.

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

Augustine Aulanga (Mr)

(Principal Magistrate)

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^[1] [2001] SBHC 77; HC-CRC 248 of 2001 (2 November 2001)
^[2](Unrep. HCSI-CRC 00287). See also Kaboa v R [1980] SBFJCA 1
^[3] At page 2
^[4] CMC-CRC NO: 676 of 2013
^[5]R v Alfred Waki 2005 CMC
^[6]R v Paul Soso and Ors 2012 CMC
^[7]Kilatu v R [2005] SBHC 118; HCSI-CAC 206 of 2004
^[8] (ibid)