Regina v Luimalefo [2017] SBMC 46; Criminal Case 958 of 2017 (26 September 2017)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 958 of 2017

REGINA

V

JUNIOR DAVID LUIMALEFO

First Defendant

TOM GAGAME JUNIOR

Second Defendant

Date of Hearing: 21^st September 2017
Date of Ruling: 26^th September 2017

Mr. A. Maelanga for the Prosecution
Both Defendants appear in person

SENTENCE

Charge and events during arraignment

1. The two defendants are charged with one count of simple larceny contrary to section 261(1) of the Penal Code. They were arrested and brought to Court in the afternoon on 4^th September 2017. During the remand application, I asked them if they wanted legal representation before they could take their pleas. They responded that they did not need any assistance of a lawyer since they would plead guilty to the charge.
   
2. Rather than to differ from their wish, I straightaway read the charge to them. Each of them pleaded guilty to the charge and hence, their convictions were formally recorded.
   
3. They are single and very young persons. Junior David Luimalefo was 17 years old while Tom Gagame Junior was 19 years old when they committed this offence and also during their convictions.
   

Facts of the case

4. The facts of the case showed that on the 11^th of September 2017 around 11:00am, Jonathan Pestana, a national from Philippines, parked his car behind his shop at the Kukum Highway after returning from the bank. He left $10,000(SBD) and $5,000(USD) and a green bag containing a pair of shoes in the car while he went to do his normal business inside the shop.
   
5. About 7:00pm, he closed his shop and returned to the car to go home. He opened the door of the car and found out all the monies and the green bag containing the pair of shoes were already missing. He realised that the door of the car was forced open by an instrument.
   
6. He alerted his employees of what had happened and immediately, they started to look and ask around of sighting any person who might attempt to exchange any US dollar at the nearby shops.
   
7. Whilst everyone were still taking about what had happened, someone came and informed a security guard that a woman was seen changing one $50(USD) at the Good Luck shop. A CCTV of that Good Luck shop was played and the identification of that woman was established.
   
8. She was approached and she admitted that the defendant, Junior David Luimalefo, was the one who gave her the money and asked her to do the exchange for him. The defendant, Junior David Luimalefo, then was arrested by police. He admitted to police that he was one of the persons who stole from the car and took the $5,000 (USD) and the green bag containing the shoes. In Court, he further admitted that he picked up that instrument at the seaside and used it to open the door of that vehicle.
   
9. Police investigators were able to recover the shoes and $4,500(USD) but the balance of $500(USD) was still missing and had already been used by the defendant.
   
10. The other defendant, Tom Gagame Junior, was also arrested for this same incident the following day. He admitted to police that he was the one who took the $10,000 (SBD) from inside that vehicle when it was already opened by Junior David Luimalefo.
    
11. However, he already shared that money with his friends and only $700 was recovered by police.
    

Aggravating and mitigating factors

12. From these facts, I consider the following as the aggravating factors:
    
    • (a) First, the large sum of money was stolen from that vehicle including the shoes of Jonathan Pestana. $10,000(SBD) was taken by Tom Gagame while $5,000(USD) was taken by Junior David. By looking at these monetary figures, no doubt, they are significant amount of monies and one that cannot be easily earned.
      
    • (b) Second for Junior David Luimalefo, he planned to commit this offence after he had sighted the vehicle. He made a conscious decision to steal from it. First, he knew that vehicle did not belong to him, was locked and unmanned. Second, he has to search or look for an instrument around that area and eventually, he managed to find it at the seaside in order to open the vehicle. Third, from the seaside, he went straight to the vehicle and opened the door using that instrument. Finally, he removed the $5,000(USD) from inside the vehicle, an action that clearly fulfils what he had tried to achieve or plan to do with the vehicle that material time.
      
    • (c) Third, the offending was sophisticated in nature. Stealing carried out by opening of locked vehicles is a sophisticated or advanced form of theft as those who normally unlock vehicles using foreign objects could only get that knowledge from motor vehicle mechanics.
      
    • (d) Fourth, part of the money was not recovered. For Junior David, $500(USD) was not recovered while Tom Gagame, $9,300(SBD) was not recovered. Both defendants already used those monies. The non- recovery of these monies are the direct result of their individual and unlawful actions.
      
    • (e) Finally, they caused financial loss Jonathan Pestana and deprived him from the use and benefit of the entire amount of money.
      
13. I find the following to be their mitigating factors:
    
    • (a) They were first time offenders.
      
    • (b) Both of them are single, young persons and non-students. For Junior David, he is still a juvenile meaning he is a young person yet to reach 18 years of age. For Tom Gagame, he is 19 years of age.
      
    • (c) They have pleaded guilty to the offence and this saves so much of the Court’s time and resources.
      
    • (d) They were very sorry or remorseful for what they did and respectively apologised to this Court for what they did. They promised not to repeat it again in future realising that prison is not a good place for them.
      

Remarks on stealing and how it is viewed in our communities/societies

14. The offence of stealing is one of the criminal offences that is very much hated in any community/society in Solomon Islands. Those who steal are lazy people and preyed on the efforts and sweats of others to get quick or fast money through illegal ways. It is also a shameful act especially when one used the money to feed himself or his family, knowing very well the money was obtained as a result of stealing. In some instances, this kind of incident may result in retaliatory actions where the consequences maybe severe and unfortunate. Also, in some countries, this is an abhorrent crime where it would attract severe punishment.^[1] We are so lucky to live in a country where punishment for this offence is more civilised and less cruel and normally, only imprisonment will follow in serious theft cases. Otherwise, stealing in other countries like in the Muslim world^[2], this offending may result in the cutting/amputation of hands of thieves to avoid repetition of this same offence by the same person once and for all.
    

Sentencing remarks and sentences in this jurisdiction

15. The defendant, Junior David, is a juvenile, therefore, he will be sentenced under the Juvenile Offenders Act. The other defendant, Tom Gagame, will be sentenced not as a juvenile, but a young person since he is already above 18 years.
    
16. The question now is what form of penalty is the appropriate punishment for them?
    
17. Cases decided for this offence for young offenders ranged from fine, bound over, suspended sentence and imprisonment of less than a year depending on the culpability and the amount of the property/money involved. For juveniles, of course, it will be much lower than the adult offenders.
    
18. An example of the penalty for this offence can be seen in the case of R v Jimmy Rikiloni^[3] where the accused, a 23 year old young person and a repeated offender, was sentenced to 7 months imprisonment for stealing a box containing electrical supplies from a vehicle at the Central Market in Honiara. The box was recovered on the same day. That sentence reflected the Court’s disapproval of this particular offending when it is now too common in Honiara and the country as a whole.
    
19. Another example of the sentence passed by the Court for this offence can be seen in R v Pandavisu^[4] where the learned sentencing Magistrate sentenced the accused to 9 months imprisonment on a charge of simple larceny. Ward CJ (as he was then) while reviewing that case altered other sentences imposed on the accused, but confirmed the sentence of 9 months on the charge of simple larceny.
    
20. Also, in another case of Eapa v Reginam^[5], the appellant pleaded guilty to simple larceny. In that case he stole a CD player from his friend’s house. He was sentenced to 9 months imprisonment by the trial Magistrate. On appeal Kabui J (as he then) upheld the sentence of 9 months but suspended it for 2 years because the CD was recovered after the incident. In his remarks, he stated that simple larceny is a fairly serious offence.
    
21. Further, in Regina v Pilly^[6], the accused was charged for store-breaking contrary to section 300 (a) of the Penal Code. He pleaded guilty and was sentenced to 10 months imprisonment. On review before Kabui J, he set aside the conviction and sentence for store breaking and instead convicted the accused (prisoner) of simple larceny, contrary to section 261 of the Penal Code. Consequent to his decision, the accused was resentenced to 6 months imprisonment. This was a case in which the accused had stolen $1,700 from a store.
    
22. These High Court cases were handed more than 16 years ago when this particular offence is not prevalent compared to nowadays. Therefore, in my view, it is common sense within the judicial sentencing process if a particular offending is on the rise, the Court must also adjust its sentence to reflect the present circumstance of the country.
    

Sentencing of the defendants

23. I will start first with Junior David Luimalefo. In my view, the way he carried out the stealing as reflected in the facts is very serious within the offence of simple larceny itself. The level of planning involved, the mode/manner of his entry into the vehicle and the amount of money he took and further, the fact that $500(USD) is yet to be recovered have supported this view. Despite he is a juvenile, the circumstance of this case calls for a custodial sentence as the appropriate form of penalty.
    
24. For Tom Gagame Junior, the fact that he went inside that vehicle and deliberately took $10,000(SBD) and shared it with his friends until only $700(SBD) was recovered by police is also very serious. It also calls for a custodial sentence.
    
25. On the other hand, I am also mindful that their youthfulness/immaturity is one of the factors that contributed for them not to properly think about the likely consequences of their actions (like what normally adult persons would do) before they decided to commit this offence. The Court at the end of the day must do a balancing and careful exercise especially when sentencing young offenders, and not to prey on their vulnerability when passing their sentences.
    

Sentencing Orders

26. It is my view that when all these factors are considered and in light of the communities’ and the Courts’ revulsion against this type of offending, the following are the sentences I imposed on the two defendants:
    
    • (a) Junior David Luimalefo – 1 ½ years imprisonment.
    • (b) Tome Gagame Junior – 2 years imprisonment.
      
27. I am mindful of the parity principle of sentencing that should apply herein, but this sentence is reached taking into account the amount of money been taken and used by the respective defendants.
    
28. Times spent in custody is to be taken into account.
    
29. 14 days rights of appeal applies to any aggrieved party.
    

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(Augustine Aulanga – Principal Magistrate)

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^[1] For example in the Muslim worlds
^[2] For example the Sharia law in Muslim Nigeria and Saudi Arabia
^[3] [2015] SBMC 2; Criminal Case 674 of 2014
^[4] [1990] SBHC 86; HC-CRC 1634 of 1990
^[5] [2001] SBHC 77; HC-CRC 248 of 2001
^[6] [2001] SBHC 64; HC –CRC 074 of 2001