R v Keleni [2019] SBMC 10; Criminal Case 461 of 2013 (14 February 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case No. 461 of 2013

REGINA

-V-

JOHNSON KELENI

Dates of trial: November 5^th - 9^th, 2018
Date of Judgment: February 11^th, 2019
Date of verbal Sentence: February 12^th, 2019
Date of written sentence: February 14^th, 2019

Mr. Ishmael. F. Kekou for the prosecution
Mr. Clifton. M. Ruele for the defendant

SENTENCE

Introduction:

1. Mr. Johnson Keleni, I found you guilty after full trial and convicted you accordingly on the charge of Criminal Trespass contrary to section 189 (2) of the Penal Code. I had delivered my verbal sentence on the 12^th of February 2019, I now proceed to provide the appropriate reasoning for your sentence.
   

Max Penalty:

2. The maximum penalty for Criminal Trespass is one (1) year imprisonment. This shows only indicates that our law-making body or legislatures do not tolerate such offending in our society. Of course, it is trite law that the maximum penalty is reserved for the worse type of offending.

Aggravating factors:

3. Having perused the brief facts, these are of course the apparent aggravating factors in you case:
   
   • 3.1. The offending involved pre-planning or is premeditated – From evidence, Police Constable Salau’s house is a bit far away from where you live, hence, I only conclude that the fact that he dropped off with you at your place of residence and assisted you to Mr. Saeve’s house points to some pre-planning. He should’ve returned to his house that night but instead he chose to accompany you, this is definitely some deep thoughts to carry out this offending.
     
   • 3.2. You triggered fear to Mr. Saeve and Tuanakana – You slammed opened the door and entered without their consent. Definitely, as normal human beings, such behavior demonstrated by yourself would’ve inflict trauma and fear to people who are peaceful occupant of the house, let alone their own dwelling house.
     
   • 3.3. You committed the offence under the sunshade of the Royal Solomon Islands Police Force. You used your profession in an attempt to conceal the criminal act you had committed, to say that you were conducting a lawful operation
     

Case authorities:

4. I appreciate the efforts rendered by counsel Kekou to provide the case authority of R v Jerry Sala^[1] to assist this court to arrive at a just and fair sentence.
5. In the case of Sala the Defendant was sentenced to 10 months imprisonment. He’s a church pastor by occupation and the building he trespassed was the National Parliament. He was intoxicated during the commission of the offence as well.
   
6. Having compared this case to sala’s case, I noted that Sala’s case is much more serious given the fact that the building is a well reputable one and he was also intoxicated with alcohol. Any sentence in this case must be one that is lesser to the case of sala.
   

Sentencing principle:

7. In Sahu v Regina^[2] the Court stated:

“It is well accepted that the technique of comparing sentences imposed in different cases is of limited assistance and provides only imperfect guidance as to the appropriate sentence in any given case.” However, to ensure uniformity and coherence, past cases can be of significant assistance.

Sentencing remarks:

8. I fully understand the fact that you were interdicted from the Royal Solomon Islands Police Force after the Police instigated the charge against you and you are currently involving yourself with other positive and productive things in life for the past 6 years.
   
9. You should now reflect back and realised the wrong you have committed 6 years ago which has severely resulted in you losing your job. Learn to move further in life and to remain as a good law abiding citizen of this country.
   

Starting point:

10. Having considered the abovementioned aggravating factors including the circumstance of the offending and due consideration to mitigating factors provided, I see it appropriate that the starting point is 8 months’ imprisonment.
    

Mitigating factors:

11. I take due account to the following factors as mitigation in your case: -
    
    • 11.1. You are a first-time offender which means that this is the first time for, there’s prospect of rehabilitation.
      
    • 11.2. You now holds numerous church related roles and as well as highly ranked position in your community. This only reveals that you rehabilitated since the commission of the offence and intend to live a productive life.
      
    • 11.3. You are 64 years old, married with 6 children. Obviously a family person with huge responsibilities considering your duty towards family, church and community.
      

Issue of Delay:

12. Delay acquire its root from section 10 (1) of the constitution which provides that any person charge with criminal offence be afforded a fair trial within reasonable time.
    
13. In Runikera V DPP^[3] His Lordship Ward CJ stated that:
    

“Delay affects the sentence ... [because] it increases the anxiety of the accused man, who has it hanging over him for that time. This will only apply from the time of discovery of the offence in any delay, before that, is entirely in the hands of the offender.

14. In Kyio V Regina^[4] His Lordship, Palmer CJ (on appeal) describe 5 years delay as substantial delay and reduced a sentence of 5 years by 3 years.
    
15. In Foli V Regina^[5], it involved a bank teller who was convicted of a single count of fraudulent conversion. Palmer CJ, on appeal, described 5 years delay as excessive and unreasonable. His Lordship reduced the sentence giving credit to delay and suspended part of the sentence.
    
16. In Dalo v Reginam^[6] The accused appealed against a sentence of eighteen months imprisonment the offence first came before the court three years after it was committed. Court Held: The sentence was correct in law but due allowance might not have been made for the hardship caused by the delay, and sentence reduced to twelve months.
    
17. The above cited cases clearly outlined the law and consideration to be given to issue of delay in any case. In applying the above cases to the one at hand, I have considered the fact that the Defendant since 2013 faithfully attends his case until 2019, when it finally came to an end after full trial. The record of proceedings proves the fact that the delay is unreasonable and an excessive one that he ought to be given the benefit of it.
    

Sentencing consideration:

18. I hereby reduce 2 months to consider that you are a first-time offender and 2 months for the fact that you now rehabilitated after commission of the offence six years ago and 1 month for your personal circumstance.
    
19. The resulting sentence is therefore, 3 months’ imprisonment.
    

Sentencing Order:

1. I hereby sentence you Mr. Johnson Keleni to 3 months’ imprisonment.
   
2. Having considered the significant delay in this matter, I hereby invoke section 44 of the Penal Code and wholly suspend the 3 month’s for 1 year as of today on the condition that you will not commit any offence during the suspension period. A breach of this condition will result in the reinstatement of the term suspended.
   
3. 30 days right of appeal applies.
   

THE COURT

...........................................................................
MR. LEONARD. B. CHITE
Principal Magistrate

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^[1] [2015] SBMC 379
^[2] [2012] SBHC 122
^[3] Cr. App No.14 of 1987
^[4] [2004] SBHC; 34; 3 May 2004,
^[5] [2004] SBHC; May 2004
^[6] [1987] SBHC 15; [1987] SILR 43 (23 June 1987)