Regina v Bona [2017] SBMC 6; Criminal Case 511 of 2016 (21 March 2017)

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

Criminal Case No. 511 of 2016

REGINA

-V-

WALTER BONA

Date of Hearing: March 15, 2017
Date of Sentence: March 21, 2017

Mr. I. Tebakota for prosecution
Mr. C. Ruele for accused

SENTENCE

Background

1. Walter Bona (“accused”) pleaded guilty to the charge of shop-breaking and committing a felony, contrary to section 300(a) of the Penal Code. The offence of shop-breaking and committing felony is a serious offence, and one that the law set its maximum penalty to 14 years imprisonment.
   
2. The accused is less than 17 year old when he committed the offence. Given his young age, he will not be treated as an adult offender, but as a young offender under the Juvenile Offenders Act for purposes of his sentence.
   

Summary of facts

3. The complainant in this case, Kevin Lui, is a provincial member for Banika ward in Central Islands Province. He ran a shop in Yandina at the time of the incident.
   
4. On 1^st or 2^nd of August 2016 between 9:00pm and 7:00am, the accused and his associates broke into the complainant’s shop. The reason why they broke into his shop was due to disagreement for his failure to assist or support the youths in Yandina.
   
5. They gained entry into that building by cutting the copper wall with an implement. When they inside the building, they collectively removed goods valued $4090.00 and cash of $200. They fled the building with the goods and the cash. The goods and the money were not retrieved by police nor given back to the complainant following the incident.
   

Aggravating factors

6. There are some matters of aggravation that are present as a result of the offending:
   
   • Firstly, the accused committed the offence in the company of other boys and also, during the night. When an offence is committed by a group of males and especially in the night like this case amount to an aggravating factor. Amongst other reasons, the most obvious one is; it puts extreme fear on the owner of the property to defend him or his family or his property(s) if confronted by a group of burglars.
     
   • Secondly, the offending involves preplanning. Prior to the offending, he already had disagreement with the complainant for his failure to assist or support the youths in Yandina. Therefore, the commission of the offence is a reflection of the translation of that evil motive into an unlawful act he harbored against the complainant. It is not an offending that occurred spontaneously or by mistake but one that was founded on a retaliatory action he held against the complainant.
     
   • Thirdly, the value of the goods stolen was $4090.00 apart from the $200.00 cash. When added together, it totaled up to $4290.00. This is significant amount of goods and money stolen from the complainant. No doubt, his action had caused financial loss to the complainant. Thus, he has put the complainant in a financially disadvantaged position having to refinance the replacement of the goods that were stolen by the accused and his accomplices.
     

Mitigating factors

7. From the submission put forward by learned counsel for the accused, I observed that there are 3 main considerations that would serve as his mitigating factors. These are:

Firstly, his early guilty plea. With the limited number of court rooms and the current backlog of criminal cases faced at the Central Magistrate’s Court, his guilty plea has undoubtedly saved much of the court’s time and resources which otherwise would be expended if the matter proceeds for trial.

Secondly, he was very remorseful and regrets his involvement in the offending. His guilty plea reflects his sorrow for the wrong he had committed. It also indicates he was conscious of his wrong and thus, will take steps to see it is not repeated in future.

Finally, he is 17 years of age and is a juvenile. It has been judicially recognised in our jurisdiction that a juvenile like him should be specially treated in terms of sentencing. Therefore, unlike adult offenders, he should deserve a lesser penalty.

8. However, he is not a first time offender. I have noted that he was previously convicted and sentenced by this court in 2015 for 12 months suspended sentence for the same offence. Less than 2 months after he served his suspended sentence, he then reoffended again. Therefore, in light of his reoffending, it is my view, that he won’t be given the benefit of being a first time offender.
   

Sentencing reasons

9. Breaking into other people’s dwelling houses or shops for the sake of stealing is utterly unacceptable. It is a form of offending where the courts and communities cannot easily tolerate. Even our moral values resent it. The prevalence of this particular offending in any society can arouse fear amongst individuals or households for the safety of their properties. It can also promote a culture of no-care attitude, lack of respect and other antisocial behaviours or delinquencies that are like syndromes to any orderly behaviour in any society. Those who steal are lazy people taking advantage to enrich themselves from the efforts and sweats of hardworking people though unlawful means. This is a very shameful act especially when one decides to feed himself/herself or his/her family with dirty money obtained from stealing.
   
10. The accused should know that despite his disagreement with the complainant for not assisting the youths in Yandina, the law does not allow him to steal into to satisfy his grudges. He should know that it is unlawful for him to break into other person’s building to steal since this is not his first time to commit such an offence. In fact, he was previously charged by police with the same offence so no doubt, he had the full knowledge of the consequence of his action when he made a conscious decision to join the other boys to break into the complainant’s shop that night.
    
11. There are other alternatives to solve this issue without taking the law into his own hands. The summary of facts is silent whether the accused has submitted any application to the complainant before the offending and was not considered resulting in him having to embark on this extreme unlawful retaliatory measure. I am of the view that unless the complainant is a very stubborn person, any sane parliamentarian would normally and easily respond to any genuine application for youth support if there is indeed an application been submitted to him. The omission of this explanation raises a concern whether or not the reason why the accused decided to commit the offence is genuine or perhaps, only a mere excuse.
    
12. In considering his sentence and its effect on his youthfulness, the Court in the case of Paroke and Kupper v R^[1] stated in clear terms that imprisonment can be an appropriate form of sentence for a young offender who commits serious crime. Muria ACJ (as he was then), when emphasising that point stated:

“I do not accept the suggestion that because an offender is young and a first offender, he should not be sent to prison. In cases of serious crime and housebreaking is such as crime, the court must reflect the seriousness of the crime in the sentence they pass upon a young offender.”^[2]

13. In that case, the Court also referred to the case of R -v- Maritino Suilamo, Tome Akwasu'u and Molousafi^[3] where a plea for youthfulness is no longer satisfactory answer to serious crimes.
    

Sentencing range

14. The range of the sentence for this offence in past cases^[4] ranged from suspended sentence to 3 years imprisonment. For cases involving juveniles, the sentence would be around the middle of this range or even further down, depending on the individual circumstance of the offending.
    
15. In the recent case of R v Jeremy Zoni,^[5] a 17 year old offender was sentenced to 14 months imprisonment following a guilty plea to the charge of warehouse breaking contrary to section 300(a) of the Penal Code. In that case, the offender teamed up with another and broke into the Chengs building at Kukum area. Goods worth $22,243.80 were stolen by the offender and his accomplice. In his case, he only took 2 mobile phones, hard disc and $300.00. He admitted that he had already used the money and the goods. The term of his imprisonment reflected his participation in the offending, the value of the goods stolen and of course, the mitigating and aggravating factors, and the need for deterrence.
    
16. In the present case, the value of the goods and money stolen is less than that in Zoni’s case. Also, there is complete absence of any evidence to show how much the accused had benefitted from the stolen goods and the cash. This is important because it will determine the penalty he ought to receive taking into account the nature and extent of his participation. This is to avoid imposition of a crushing sentence which does not reflect his true criminality. Therefore, to suggest 2 years imprisonment as sought for by the prosecution in the present case without any factual basis is a mere prosecutorial assumption without any evidentiary support. As a reminder, it is the role of the prosecution to assist the court with all relevant facts and not merely to get rid of a case as what appeared to be the case here. In R v Banks^[6] Sir Horace Avory emphasized the role of the prosecutor in the following manner:
    

“The prosecutor’s job is to see that all the relevant facts, including those favourable to the accused, are placed before the Court and to present those facts in an ethical, fair and clear manner.....Ideally whatever the result at the end of the case, the prosecutor should be able to say that he has done his best.”^[7]

17. Given the failure of the prosecution to competently and properly discharge its duties in terms of specifying the number of goods and cash taken by the accused in this case, the benefit of this uncertainty must tilt to his favour.
    
18. The submission for the reinstatement of his former 12 months suspended sentence for 12 months period imposed on 16^th of June 2015 is also misconceived. 12 months from 16^th June 2015 will end on 16^th June 2016. The accused committed the present offence on 1^st August 2016, a period of almost 2 months after he already served his suspended sentence. Why the prosecution insisted to extend the suspended sentence beyond the 12 months made by the sentencing Magistrate is unknown and clearly, untenable. This submission reflects the nadir of the prosecution to properly assist the court which if properly and carefully considered should not be raised at all.
    
19. The accused had been incarcerated for 7 months now. That is quite a significant period for a 17 year old who already endured the anguish of prison life and is keen of changing his behaviour. In his submission, he promised to become a good person once he is released from prison. If that is his goal in future then this shows that he did not take his prison life for granted but he now starts to reform his character and attitude towards being a law abiding person. I must commend him for that bold decision and the responsibility for him to honour his promise lies squarely in his hands.
    
20. I am mindful that the public interest to deter this type of offending in our country is extremely high given its prevalence. Also, the need to protect the public against repeated offenders like the accused in this case. Against this background, the court must also consider the youthfulness of the accused and more importantly, he is still a juvenile under the Juvenile Offenders Act Cap 14. When all these factors are considered and taken into account, it is my view, that the society and courts’ stand against this type of offending demands custodial sentence as the appropriate form of sentence despite he is a juvenile.
    

Sentencing Order.

21. It follows that upon hearing from both the prosecution and the defence, I hereby sentenced the accused, Walter Bona, to 13 months imprisonment. I order that 3 months is reduced from this head sentence to reflect the 7 months delay occasioned to finalise his case. Therefore, the resulting sentence is the accused will serve 10 months imprisonment.
    
22. Period spent in custody is to be deduced from this sentence.

23. 14 days right of appeal by any aggrieved party.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] High Court Unreported Criminal Case No. 21 of 1999
^[2] At page 2 of Muria ACJ, judgment
^[3] High Court Unreported Criminal Case No. 3 of 1992
^[4] See case of Pitamana v R [2005] SBHC 45, R v Anika [2008] SBHC, Maelasi v R [2000] SBHC 82, R v Moses Bia CMC CRC No. 1162/2014, R v Peter Kakai CMC CRC No. 1588/2015, R v Walter Bona and Augustine Ratea Junior CMC CRC No. 05/2015 and R v Happy Mae CMC CRC No. 2/2016
^[5] CMC-CRC No. 655 of 2015
^[6][1916] 2 KB 621
^[7] At page 623