Regina v Teleu [2017] SBMC 17; CMC-CRC 388 of 2017 (6 June 2017)

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

(Criminal Jurisdiction)

Criminal Case No. 388 of 2017

REGINA
-v-
SILAS TELEU

Prosecution: Mosese of Police Prosecutions Office
Defence: Kwalai of Public Solicitors Office
Plea date: May 29^th, 2017
Sentence: June 6^th, 2017

SENTENCE

Background of the Case

1. The defendant pleaded guilty of stealing $850, money owned by Frank Gela. His action amounted to an offence called simple larceny, contrary to section 261(1) of the Penal Code. He committed that offence on 15^th April 2017 when he was still serving a bound over sentence handed by the Central Magistrate’s Court on 6^th April 2017.
   
2. The facts of the case revealed that on 15^th April 2017 between 3:00pm - 3:30pm, the complainant, Frank Gela, parked his vehicle at the ITA hardware car park area, opposite the Hyundai Mall. He left the vehicle with all doors closed and walked out to the street. The defendant observed the vehicle was abandoned, walked over and opened the back booth. He wasted no time and entered through the back of the vehicle, and went straight to the front seats. He opened the drawer and removed $850. He pocketed the money and exited the vehicle. The complainant saw him got out of vehicle and quickly followed him and yelled out for him to stop. The defendant did not stop but kept walking away from the complainant. Some police officers conducting the visibility patrol came to assist the complainant and stopped the defendant along the street. They managed to retrieve the money from the defendant.
   
3. He was arrested and taken to custody on 18^th April 2017. On arraignment, he pleaded guilty. Having pleaded guilty, the issue for me to decide is what sentence is to be imposed on the defendant taking into account the aggravating and mitigating factors.
   

Matters of Aggravation

4. It is implicit from the facts that the defendant deliberately made a conscious decision to steal from the vehicle. First, he knew the vehicle was unattended and then walked over in order to steal from it. The manner he entered the vehicle from the back booth and went straight to the front seats of the vehicle to remove the money from the drawer clearly demonstrated how he carefully put his mind and executed it for that purpose.
   
5. Also, the amount of $850 is quite high in value. It is one that cannot be earned within few minutes even for a high paid public servant. For an unemployed person, this amount is no doubt, very significant.
   
6. The defendant was also uncooperative to the complainant despite he knew the complainant was following him and warned him to stop. He continued to flee. It was only through the assistance of police that he was apprehended and the money was recovered.
   
7. He also reoffended just 9 days after he was sentenced by this court. This shows that he didn’t want to follow or abide by any court order and remained defiant to the order issued by the court. Any sane or rational person should have learnt from his past offending and take steps to change his behavior. Only persons that are lunatic and mentally ill would not understand the consequence of breaching the bound over sentence. I have observed the defendant and he is just a normal matured and sane person. Therefore, there should not be any excuse why he did not comply with the terms of the bond especially when it was a little less than two weeks he was previously sentenced by the court. The fact that he committed this offence few days after he was sentenced is clearly aggravating as it showed he has absolutely no thought to become a law abiding person.
   
8. The attitude displayed by the defendant is clearly questionable whether he can ever change his attitude and hence, the court must intervene and adjust its approach on how best he should be sentenced.
   

Matters of Mitigation and Personal

9. Besides entering a guilty plea; a married person with 4 children and for being remorseful, it was brought to my attention that the money was already recovered entirely and therefore, the complainant did not suffer any financial loss from the theft. That is the strongest extenuating factor for this matter. Because of that, it is my view, that despite the need for deterrence, the circumstance of his case warrants a lesser sentence imposed on other simple larceny offences where the stolen properties are not recovered.
   

Sentencing Consideration

10. The defence counsel referred this court to follow the case of Eapa v Regina^[1] when sentencing the defendant. In that case, the appellant pleaded guilty to stealing of a CD player and was sentenced to 9 months imprisonment by the Magistrates Court. On appeal against the excessiveness of the sentence, Kabui J, (as he then) upheld the sentence of 9 months but suspended it for 2 years because the property was recovered. The recovery of the property was seen as the influential factor resulting in the suspension sentence.
    
11. I have considered the circumstance of the present case and it is similar to the case of Eapa since the money was fully recovered. The only difference is Teleu is not a first time offender. That is a significant difference and one that has a bearing to the likely sentence to be imposed.
    
12. I hereby sentenced the defendant to 9 months imprisonment backdated to time spent in custody. Having spent more than 1 month in custody, I order that the balance of the term be fully suspended for 2 years on the condition that he will not commit any further offence during the suspension term. Any breach of this suspended term will result in the automatic reinstatement of the balance of the term suspended herein.
    

Breach of Bound-Over Sentence

13. This brings me to the next issue of the breach of his bound over sentence. According to the bound over condition, he entered into a promise in the sum of $500 to keep the public peace for 6 months starting from 6^th April 2017. That period should lapse on 6^th October 2017.
    
14. His counsel has urged me to impose a default imprisonment term for his former offence. The corresponding imprisonment term for $500 should be 20 days^[2]. Rather than to differ from that call, I agree with the learned counsel and hereby sentenced him to 20 days imprisonment.
    
15. The defendant has been remanded in custody since 18^th April 2017. The question is; when is the commencement date for his default imprisonment term?
    
16. His remand on 18^th April 2017 is for the simple larceny offence and also for the alleged breach of his bound over sentence.
    
17. On 29^th May 2017, he was arraigned and pleaded guilty. His conviction was recorded to confirm or prove the breach of the bound over sentence.
    
18. Section 24(5) of the Penal Code gives the court the discretion to backdate a sentence to pre-detention period. Apart from that legislative provision, the case of Lusibaea v Regina^[3] also supports that view. In that case, the Court of Appeal when referring to the case of R v Governor of Brockhill Prison, ex P Evans^[4] also supported the view that the proper way of sentencing an offender for a number of distinct offences is to backdate the sentence to the time spent in custody.
    
19. Since he had already convicted of the simple larceny charge, his detention on 18^th April 2017 will inevitably affect the custodial sentence that he will receive for breach of the bound over condition. The reason is simple and that is, the reason for making the remand application was based on the breach of bound over sentence, a ground accepted by the court for his detention.
    
20. I order that his 20 days imprisonment is backdated to the time he was detained for the simple larceny offence. Having spent more than 1 month in custody, that sentence however is already served. Therefore, he is to be released forthwith at the rising of the court to serve his suspended sentence.
    
21. Order accordingly.
    

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

---

^[1] [2001] SBHC 77
^[2] Penalties Miscellaneous Amendment Act 2009
^[3] [2007] SBCA 7; CA-CRAC 3 of 2007
^[4] [1977] QB 443