Regina v Sing [2018] SBMC 6; Criminal Case 535 of 2016 (16 February 2018)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 535 of 2016

REGINA

V

LOH JING SING, JOHN MAMIONG, CHARLES TAKULE & SKT WAVASAN (SI) LIMITED

Closing submissions: February 6, 2018
Judgment: February 12, 2018
Sentencing submissions: February 12, 2018
Sentence Orders: February 12, 2018
Sentence published: February 16, 2018

Mr. P. Abe for the Prosecution
Mr. B. Kaehuna for the Defendants

SENTENCE

1. The three defendants, Loh Jing Sing, John Mamiong and Charles Takule were convicted for the offence of harbouring four unlawful noncitizens or foreigners without visa, contrary to section 68 (1) of the Immigration Act 2012.
   
2. By virtue of section 68 (2), the maximum penalty prescribed for this offence is a fine not exceeding $5,000 or 3 months imprisonment, or a combination of both.
   
3. This is a conviction following trial so definitely the penalty to be imposed is expected to be higher that sentences normally imposed for guilty plea matters whether it be fine or custodial sentence.
   
4. Following their conviction, I have indicated that I will impose a noncustodial sentence to each of them and given that indication, it is pointless to discuss any further the issue of custodial sentence.
   

Summary of facts

5. The summary of facts of the case which the Court adopted based on the evidence unfolded during the trial are these. The defendants, Loh Jing Sing and Charles Takule are employees of the corporate defendant named SKT Wavasan (SI) Limited. Sing is employed as a Camp Manager looking after a logging camp in the Shortland Islands called Metuai. Takule is the Personal Officer and assisted Sing with the logging operation.
   
6. Mamiong is one of the Directors of a land owners’ registered business entity. All the defendants were stationed at the Metuai logging camp before the 26^th of July 2016 when they were arrested by the Royal Solomon Islands Police Force (RSIPF).
   
7. The logging operation at Metuai commenced as a result of logging agreements entered into by three corporate entities. They were; Xiang Lin (SI) Limited, SKT Wavasan (SI) Limited (SKT) and Aleang Land Region Committee (ALRC).
   
8. Xiang Lin is the licensee. It subcontracted^[1] SKT Wavasan to carry out logging operations with its machineries in the approved designated concession areas. ALRC’s role on the other hand is a guarantor and is responsible to provide policing or security for SKT during the tenure of the logging operation.
   
9. The logging operation started in 2015 after signing of the logging agreements.^[2] However, during the course of the operation, the logging camp was raided by armed rogue Bougainvilleans where valuable properties and a large amount of money were stolen from the logging camp. This resulted in some Bougainvilleans came over to Shortland Islands to do voluntary awareness programs for purposes of monitoring and investigating the illegal activities carried out in the past by Bougainvilleans.
   
10. During one of the awareness programs, ALRC as represented by Mamiong requested the awareness team to provide Bougainvilleans to work as securities for the logging operations. The team indicated its willingness to assist and hence, an arrangement was made with a Bougainvillean named David Kongkori to station four Bougainvilleans at the Metuai camp, purposely to monitor the situation.
    
11. On 23^rd July 2016, Mamiong, Takule with some other males went over to Bougainville by boat. They returned to the logging camp the same day with four Bougainvilleans. Mamiong straightaway accommodated them in a leaf house at a log pond located several hundred meters away from the logging camp. Mamiong and Takule knew very well they were not Solomon Islanders or non-citizens in other words and their presence at the Metaui log pond area was illegal since they did not have entry visa.
    
12. Their unlawful presence at the camp was later communicated to the RSIPF. Hence, on 26^th July 2016, RSIPF sent a team to the Metuai logging camp and carried out a raid, and arrested the four Bougainvilleans together with the defendants.
    
13. The four Bougainvilleans were interviewed by the Immigration Authorities and were ordered to pay spot fines. Thereafter, they were deported to Bougainville.
    

Aggravating factors

14. There are few aggravating factors that I noted that were present as a result of their actions. First, Mamiong and Takule in fact went to Bougainville and as a result of their trip, these Bougainvilleans came with them to the Metuai logging camp area in the Shortland Islands. Had it not for the trip, those Bougainvilleans would not come and eventually present at the Metuai logging camp area. Second, there were a total of four Bougainvilleans who were harboured at the Metuai log pond area. The multiple number of those foreigners shows the magnitude and the severity of the culpability of the three offenders. Finally, the offence was committed in a commercial setting and that is, the three defendants kept them for the employment purposes.
    
15. They were convicted after trial so they are not entitled to any remorse.
    
16. I am urged to consider that they committed the offence because of the insecurity they faced in the Shortland Islands due to raids carried out by rogue Bougainvilleans and the failure of the RSIPF to carry out frequent border monitoring. This is unfortunate but that does not mean that they can make whatever illegal arrangements at their own decisions or in other words, to take the law in their own hands by making arrangement that is against our immigration law. It is the responsibility of all inhabitants of this country to comply with all the laws and regulation put in place by the State.
    

Mitigating factor

17. The only mitigating factor I find is that each of them has no previous conviction.
    
18. It is my view that in light of these factors alluded to, the starting point to consider for punitive sentence for this kind of offending when it comes to conviction after trial in my view should be $3000. In light of the aggravating factors, I therefore impose a fine of $4000 to each of them. Given that this matter almost took 2 years to complete, I therefore reduced $1000 from each of them to reflect the delay that has taken to have these matter completed.
    
19. There isn’t any reported case as yet for this offence in this jurisdiction so that the Court is assisted as to similar sentences being imposed. Therefore, I am inclined to approach this case by looking at its own facts and impose a sentence I think it is appropriate.
    
20. After considering all these matters alluded to and balancing them with the aggravating and mitigating factors, I therefore imposed the following sentencing orders:
    
    • (a) The defendants, Loh Jing Sing, John Mamiong and Charles Takule are respectively sentenced to a fine of $3,000 to be paid within 14 days as of this date.
      
    • (b) If any of the defendant fails to comply with Order 1 above, a custodial sentence of 6 months imprisonment will be imposed.
      
21. 14 days right of appeal applies to any aggrieved party.
    

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THE COURT
Augustine Aulanga – Principal Magistrate

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^[1] D5
^[2] D2 and D5