Regina v Feman [2018] SBMC 11; Criminal Case 260 of 2016 (9 May 2018)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 260 of 2016

REGINA

V

PHILIP FEMAN

Date of Hearing: May 4, 2018
Date of Sentence: May 9, 2018

Mr. J. W. Zoze for the prosecution
Mr. L. Waroka for the defence

SENTENCE

1. The accused, Philip Feman, pleaded guilty to the burning of a kitchen house of Wilson Bako. His action is contrary to section 319 (a) of the Penal Code. It carries a maximum penalty of life imprisonment.
   
2. That kitchen was made of thatched sago palm leaves and bush materials. There was no indication of its monetary value. Regardless of that, it is an undisputed fact that it was Bako’s only kitchen, and has been used until it was torched to the ground.
   
3. The brief facts of the case uncovered that on 17^th September 2011, Philip Feman, was drunk and paddled to Wilson Bako’s area at Kekelen in the West Russel Islands, Central Islands Province. His intention of going there was to look for some boys who he had disagreement with at Bako’s residence. He arrived and was informed by a person named Vomen who was present at Bako’s residence that the boys he was looking for were in the house. Instantly, he climbed up the house, jumped on the floor and ran inside the house, intending to assault one of them by the name of David Kapitana.
   
4. This made the boys ran out of the house and all escaped in the bush.
   
5. He chased after David Kapitana but couldn’t catch him. Annoyed of the unsuccessful chase, he returned, approached the kitchen, lit dry coconut leaves and set fire to it. It was completely burnt.
   
6. Following the incident, he was arrested and charged by the Yandina Police on 5^th October 2011. Despite his indictment, his matter was not brought to the attention of the court until April 2016 when his case was listed at the Yandina court circuit. During that circuit, he failed to appear and a warrant of arrest was issued against him. His matter thereafter then was progressed. It was subsequently transferred over to Honiara for continuity of the hearing at the Central Magistrate’s Court.
   
7. I now turned to his sentence. As I have said in previous arson cases, the offence of arson or the unlawful burning of other’s property(s) is a very serious crime. When it involves the burning of dwelling houses or kitchens is even more serious because it is a destruction of one’s home and shelter. Human beings cannot survive without home or shelter. So when there is unlawful destruction of a home or shelter is another way round of destroying the lives and survival of another person.
   
8. Typically, the categories of arson in the context of Solomon Islands may include:
   
   • (1) a dwelling house with people inside;
   • (2) a dwelling house without any occupants;
   • (3) public institutions such as schools, hospitals, or offices with occupants inside;
   • (4) public institutions such as schools, hospitals, or offices without occupants inside; and
   • (5) a house wind, a kitchen, a garden house or a run down and deteriorated or incomplete structure.
     
9. In the present case, the accused action falls under category 5 and that is, the burning of a kitchen house.
   
10. Although that kitchen house was made of bush materials, it represents Bako’s home and existence. It is where foods are gathered, prepared and stored. Also, it is where Bako’s family can shelter, bond and gather together on a daily basis. Hence, its utility is more or less the same as a dwelling house.
    
11. Viewed in this context, the court must be mindful of the objective seriousness of this offence and not to lose sight of the sufferings and hardships faced by the victims of the arson cases when it comes to sentencing of the offender(s).
    
12. In the present case, I did not see any preplanning by the accused. Except, it was done or committed within a spur of a moment reaction. There is no evidence either directly or inferentially to prove that he had planned to burn that kitchen moments or days before the incident occurred. He only decided to burn the kitchen after he returned from the bush because he was overborne with anger after the failed chase.
    
13. There is no issue that he deliberately set fire to the kitchen. This was evidenced in his act of lighting dry coconut leaves with the fire and putting it to the kitchen. That is not a mistake or an unwitting act, but very intentional.
    
14. The accused was also drunk and aggressive. He had acted out of character, showed off his arrogance by chasing the boys from the dwelling house before he set fire to the kitchen.
    
15. The kitchen was totally burnt to the ground. There is no doubt that Wilson Bako as the owner of the kitchen had suffered loss of his kitchen or property as a result of his action. His efforts in building the kitchen house had gone into flames within minutes or so.
    
16. The accused was 16 years old at the time of the offending. Now, he is 23 years old at the time of conviction and sentence. Despite he has exceeded 18 years of age, he will still be sentenced as a juvenile under the Juvenile Offenders Act^[1] as authoritatively set down in the High Court case of Regina v Pese.^[2]
    
17. This regime created special treatment to young offenders and give license to the court to sentence them on a special consideration not available to adult offenders. In particular, I am mindful of the application and sentencing options provided under sections 12 and 16 of the said Act.
    
18. Given that this is an arson case and one that carries a maximum penalty of life imprisonment, I therefore invoke section 16(j) of that Act which provides for imprisonment as one of the sentencing options for young offenders. Hence, a custodial sentence is considered appropriate herein.
    
19. In light of the prevalence of this offending, the starting point for juveniles for this offence is 2 years imprisonment.
    
20. Considering the aggravating factors alluded to earlier, this sentence is increased to 2 ½ years imprisonment.
    
21. To his favor, I take into account that he is a first time offender and currently, he is a 23 year old young person. He also entered guilty plea to the charge and was very remorseful. Through his lawyer, he said that the time spent in custody has significantly changed or reformed his life. Thus, he promised that if he completes his sentence, he would help in carrying out public awareness in his community about his experience in prison to warn and discourage the youths from involving in unlawful activities.
    
22. In my short experience at the bench, this is the first offender who made these kind of statements. This speaks volume of how he has learned the anguish of a prison life and will never return to it again in the future. Further, these also show that he will be instrumental in helping the youths from his community not to involve in unlawful activities that would risk them going to jail. I commend him for this proposed task. If he translate his words into action, his community will no doubt speak high of him and of course, he will be their role model.
    
23. I have also noted that no submission was made by either party in terms of the monetary value of the kitchen house. This is important since the more the value of the kitchen, the greater the sentence expected. This also operates the other way round.
    
24. In light of his mitigating and personal factors, I therefore reduced 6 months from this 2 ½ years, making it to a sentence of 2 years imprisonment.
    
25. I now turn to the issue of delay.
    
26. The accused had committed the offence on 17^th September 2011 and was charged by the Yandina police on 5^th October 2011. After he was charged, the police docket continued to remain stagnant at the Yandina Police Station and consequently, the matter continues to hang over his head. Not until April 2016, this matter then first listed at the Yandina court circuit. This is a period of almost 5 years. Why he was not arrested and brought over to Honiara in 2011 is unclear. From the date he was charged to the date of his sentence, a period of almost 7 years had lapsed. For all these years, he has been waiting to have his case finalized.
    
27. This is very unfortunate and the delay herein should be avoided had the Yandina police brought him over to Honiara several years ago.
    
28. The accused is unfortunately a victim of the delay attributed by sheer oversight or wanton disregard of the need to bring his matter to court shortly after the commission of the offence. The State owns him an apology since all these years from being a juvenile to now as a 23 year old young person, he has been living in uncertainty and his life has been clearly put at stake of the gross failure to swiftly expedite his case within a reasonable time. If our justice system is to be measured by this standard and this tolerance continues to infiltrate our criminal justice system, I am afraid that unfortunately, we are causing injustices to the people of this country. This cannot be allowed to continue.
    
29. The law is clear that where there is delay, the sentencing court should be conscious of the additional pressures the offender will inevitably come to face in the imposition of the sentence. Also, the need for the court to factor this in consideration when sentencing an offender. The more delay the case, the more reduction the length of term from a sentence ought to be imposed for a case unaffected by any delay.
    
30. In the present case, after he committed the offence in September 2011 and charged on the following month, he has been fully rehabilitated and did not commit any further or new offence until today. For the past 6 years, he has spent his time reforming his character and has ventured into his private life as a law abiding person. During those years, he even worked as a security guard for a logging company in the Russel Islands. These significant changes occurred over the period this matter was delayed and exacerbated by conducts not attributed to his fault.
    
31. I find the delay of 6 years and 6 months calculated from the date when he was charged by police is scandalous, unreasonable, too excessive and inordinate. With the reliable shipping services from Yandina to Honiara, it is inexcusable why he was not brought over to Honiara so that his matter could be dealt with regularly and consistently. Even if there is any explanation on this, I would only describe it as ‘lame’. The delay herein is clearly undue to have his matter tried within a reasonable time as required under section 10 (1) of the Constitution of Solomon Islands.
    
32. I give him full benefit for the delay and this must be reflected in his sentence.
    
33. To fairly reflect the delay herein, I therefore further reduced 1 year of the sentence of 2 years, making it to a reduced or a final term of 1 year imprisonment.
    
34. Having spent 11 months and 29 days in custody as of date, I order that he is to be released forthwith at the rising of the court.
    

Orders of the Court

35. Upon hearing from the prosecution and defence, it is ordered as follows:
    
    1. The accused, Philip Feman, is sentenced to 1 year imprisonment.
       
    2. Having spent 11 months and 29 days in custody, I order that he is to be released forthwith at the rising of the court.
       
    3. 14 days right of appeal applies to any aggrieved party.
       
    4. Order accordingly.
       

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] Cap 14
^[2] [2009] SBHC 6