Regina v Saeni [2017] SBMC 1; Criminal Case 1143 of 2015 (18 April 2017)

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

Criminal Case No. 1143 of 2015

REGINA

-V-

OSBORN SAENI

Date of Hearing: April 13, 2017
Date of Sentence: April 18, 2017

Ms. O. Ratu for the prosecution
Mr. L. Waroka for the defendant

SENTENCE

Background

1. The accused, Osborn Saeni, pleaded guilty to a single charge of robbery contrary to section 293(1)(a) of the Penal Code. Robbery is one of the most serious offences under our laws. This is reflected in the sanction the law prescribes against offenders, which is the maximum sentence of life imprisonment. Anyone who decides to commit it will expect an immediate imprisonment term.
   

Brief facts

2. The brief facts of this case is rather straightforward based on the accused admission in the following manner:
   

2.1 On 25^th of July 2015, the accused and his other 5 friends were drinking liquor beside a logging road that leads up to NAC area in the Guadalcanal Province. When they were still at the roadside, a log truck owned by Galego Company approached them and they stopped it so that it could transport them to their village. The accused asked the driver, Adrian James, who was an Asian to transport them to their village but he refused. The accused disagreed with his response and immediately ordered him to get out of the vehicle. As soon as the driver got out, they got inside, took control of it and one of them went to the driver’s seat and drove it to their village, leaving the driver behind. They took the vehicle until they reached Tina River. There, they left it at the side of the river since they could not able to drive it across.

2.2 The driver walked back to the logging camp and informed his superiors about what had occurred. A search was immediately conducted for the vehicle. They located it near the Tina riverside and they discovered its front rear screen and its side mirror were broken.

3. The accused admitted in his written submission that the reason he committed this offence was due to his disagreement with the logging company for its failure to settle or pay its outstanding royalty to them as the customary land owners.
   

Aggravating factors

4. From this facts, it is clear that the accused was in company of other 5 individuals when he robbed the vehicle at the time of the offending. Robbery of the vehicle in the company of his friends aggravates the offending. It shows the power imbalance that exist between the driver of the vehicle and the accused and his friends during the forceful taking of the log truck. The lone driver was unable to resist them or did any retaliatory action to restrain the vehicle since by doing so would risk his own personal safety.
   
5. Also, the accused was under the influence of liquor when he robbed the log truck. This aggravates the offending because it triggered the accused to act uncontrollably and with intimidating behaviour towards the victim when he ordered to take the log truck without the consent of the driver or even the Galego Company.
   
6. The prosecution also urged me to consider that the front rear screen and the side mirror were damage during the robbery. Whether it was done by the accused is silent on the evidence. To hold the accused liable for this for purposes of the aggravating factor in the absence of any evidence will be unfair for him. I have reached this conclusion in light of ‘no evidence’ and also, taking into account the charge of malicious damage instituted against him was already withdrawn by the prosecution.
   

Mitigating and personal factors

7. For purposes of his mitigation. I give credit to his guilty plea, his remorse, being a first time offender and the fact that he is a married person with 4 children. I have noted that he now realizes the anguish of a prison life and will make necessary decisions in future whether or not to commit any further offence. Details of these submissions in his favour were well explained by his counsel which I have considered them in their entirety.
   
8. I also noted a delay of about 1 year this case had taken before it is finalized. This delay must be considered and ordinarily, he must be given the benefit of the delay if it is not attributed to his conduct.
   

Inappropriate action of the accused

9. I have considered the accused reason for committing this offence was due to his disagreement with the Galego Company for unpaid royalty payments. Though this might seem to be a genuine reason from him as a resource owner especially when dealing with logging companies, the law does not allow him to take the law in his own hands. There are other lawful and appropriate ways to deal or address this problem other than resorting to robing of the company’s vehicle. Perhaps if the company has failed its obligation then, one possible way to deal with this issue is by filing a case against the company in court. In this case, the accused unfortunately overlooked that lawful procedures and decided on a self-help mission which somehow made him eventually ended up in a place where it is meant only for lawbreakers.
   

Decided cases

10. Few case authorities were referred to me by both counsels^[1]. Though they were robbery cases, they more or less involved looting of buildings with cash unrecovered and robbing of vehicles. I have looked at those case authorities regarding robbery of vehicles but noted they involved the use of high-powered weapons or firearms which is different to the circumstance of the current case. The sentences imposed for guilty pleas matters for robbery of vehicles ranged from 1 ½ year to 3 years imprisonment. This depends on whether or not the vehicle is recovered. The pattern seemed to advocate imposing a lesser sentence if the vehicle is recovered. This same principle equally applies to robbery of money or valuable items from dwelling houses or buildings.
    
11. Whilst each case has to be decided on its own set of facts, it is common understanding of the law that if the crime is increasing or prevalent then there is a legitimate expectation that the sentence must also correspondingly increase to reflect the need for deterrence in light of its prevalence.
    

Matters of concern about robbery of vehicles

12. The practice of robbing of vehicle or vehicle – hijacking in other words is now increasing in and outside Honiara. This is an introduced system or advanced form of criminal behaviour which a small and unsophisticated country like ours should not practice or even to adopt it. Our country should not be seen as a training ground to dump all these unwanted and unlawful foreign behaviours which are displayed only to break our laws and create disharmony in our societies. Therefore, if this practice is on the rise then the role of the court is to discourage it with deterrent message and not to celebrate serious offence like robbery of vehicles or vehicle - hijacking with remorseful sentence.
    

Sentencing consideration

13. To get an indication of where to start in terms of the sentence; recently I have sentenced juveniles for 2 years imprisonment for the offence of robbery^[2]. This shows the recent twist by this court in its stands in deterring this type of offending. Therefore, for adult offenders, they expect higher sentence.
    
14. I am urged to consider the welfare of his family that they have been affected by his incarceration. An example is that his children no longer attend education following his incarceration. Unfortunately, I am of the view that many offenders are also in the same position as he is and therefore, his concern is of no exceptional circumstance that would warrant his case to be considered differently or exceptionally.
    

Sentencing order

15. Having regard to these factors and the recent indication of sentence, and considering his level of culpability, I therefore imposed a sentence of 26 months imprisonment term on the accused, Osborn Saeni. Given the objective seriousness of this offence, this term of imprisonment is not subject to any partial suspension.
    

Delay issue

16. The next issue is whether he should be given the benefit of the delay for this case. I have noted that he had been on bail and for a considerable time, he was without a lawyer. Following his remand for another criminal charges he allegedly involved in whilst on bail, he was then represented by the Public Solicitors Office. He entered a not guilty plea to the current charge on 21^st April 2016 and a trial date was set to commence on 29^th May 2017. Not until 16^th March 2017, he then changed his plea and pleaded guilty to the charge. The matter thereafter then proceeded normally for sentence.
    
17. I consider the delay in this case was attributed substantially by the conduct of the accused. The means to find a lawyer whilst on bail and the decision to prolong the guilty plea lie within his means. If because of plea bargaining or for other tactical reasons he decided to withhold his plea for almost a year and then decided to change it whilst valuable time and resources have already been expended, this would clearly be a hopeless expectation for the court to give him favour for the delay. I find that there is some delay caused by the prosecution but the significant part of it must rest on the accused.
    
18. Based on this finding, I am not inclined to give the accused any benefit of delay but order that the period spent in custody is to be deducted from this 26 months imprisonment term.
    
19. 14 days right of appeal commencing from the date of this sentence.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] Defence – R v Maenu [2007] SBCA;CA-CRAC 20 of 2006; R v Ross Piu CMC, 14 March 2005; R v Ahi Criminal Appeal No. 124 of 2005; R v Chris Mae and Moses Su’u Criminal Appeal No. 120 of 2004; R v Aili [2009] SBHC-CRC 74 of 2007. Prosecution – R v Aili [2009] SBHC-CRC 74 of 2007; R v Suba CMC-1154 of 2015 and R v Junior Kaluae CMC-CRC No. 1492 of 2015
^[2] R v Junior Kaluae CMC-CRC No. 1492 of 2015