R v Zekele [2019] SBMC 6; Criminal Case 323 of 2018 (17 January 2019)

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

Criminal Case No. 323 of 2018

REGINA

-V-

BOZY NAQU ZEKELE

Date of Hearing: January 16^th, 2019
Date of sentence: January 17^th, 2019

Mr. Ronnie. Pisei for the prosecution
Mr. George. Gray for the defendant

SENTENCE

Introduction:

1. Mr. Bozy Naqu Zekele, you appear before me today on a charge of Store Breaking contrary to section 300 (a) of the Penal Code. You pleaded guilty and I enter conviction on your own guilty plea accordingly. Therefore, I must make an appropriate sentence for your case.
   

Brief facts:

2. The brief facts are clear that on 4^th December 2018 at about 2:00am, you broke into the house of the victim by tearing the main door window screen, removed couple of louvre glasses and opened the door from inside by pushing your hand through a small hole you had created.
   
3. You entered the building and went into the canteen, opened a packing case by breaking the padlock and stole an amount of SBD$2,000 from a handbag in the packing case. You then left the house through the main door.
   
4. The victim and her husband discovered the incident in the morning and report the matter to police. Following investigations, you were arrested and interviewed. In the record of interview, you admitted sole responsibility for the incident.
   

Maximum Penalty:

5. The maximum penalty for Store Breaking is 14 years’ imprisonment. This shows or indicated the intention of the legislatures or law making body to abhor or discourage such offending. Of course, it is trite law that the maximum penalty is reserved for the worse type of offending.
   
6. The sentencing tariff ranges from 18 months to 3 years’ imprisonment. Depending on the circumstance of the offending and level of culpability involved.

Aggravating factors:

7. Having perused the brief facts, these are of course the apparent aggravating factors in you case:
   
   • 7.1. The offence was committed at night – offences occurred at night puts the life and property of the victim at risk, they were asleep and know nothing about your actions.
     
   • 7.2. Breach of trust – The victim in this case is your own cousin sister, a person you should respect, both her personal self and her properties. Instead you acted otherwise to which has made you to come before this court.
     

Mitigating factors:

8. A closer look at the facts reveals the following to be the aggravating factors for your case:-
   
   • 8.1. Unequivocal guilty plea – I give credit for your early guilty plea and for being remorseful in court. You are a first-time offender. You are 28 years old, clearly someone who still have a long life to live.
     
   • 8.2. There was no evidence to prove that weapon was used – The summary of facts merely stated that you gained entry by removing main door window screen and some louvre glasses, whether or not this was done with the use of weapon is unknown, as such, this must tilt to your favor, that is there’s no weapon being used at the time of offending.
     
   • 8.3. First time offender – This is the first time for you to come before this court and face justice. Hence, I will treat you as one and not as repeated or habitual offender.
     
9. Unfortunately, this type of behaviour cannot be excused as spontaneous and opportunistic. It can only be described as audacious behaviour, displaying a complete disregard and disrespect for property, person, shop and the rule of law.^[1]
   
10. In the case of R –v- Zoni^[2], His Worship Aulanga stated;
    

“The attitude of breaking into other people’s building for the sake of stealing in my view only show people who are lazy and only benefit through unlawful means from other people’s efforts and sweat. Further, it has no place in our modern Solomon Islands societies either in the rural or urban area. Time and time again, this type of offending only brings bad image to our country because of only few individuals like in your case with no care attitude. The Court as the institution which the people of this country put their faith and trust on must stand up right against such offending and must deter accordingly those who indulge in this type of serious offending.

11. This principle was advocated in the famous case of R v Ball^[3] where Hilberry J, stated:

“In deciding the appropriate sentence a Court should be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living”.

12. In the case of R –v- Zoni^[4], The defendant during night, in company of another broke and entered a warehouse building owned by the complainant Mr. Cheng. That building was located along the Prince Philip Highway at Kukum in Honiara. It was a sophisticated and careful planned offending. The total value of all the properties stolen was SBD$22,243.80. Only 2 mobiles and the hard disc were recovered by police during police investigation. The Court imposed a sentence of 14 months imprisonment. Clearly the facts of Zoni is far more serious than the case at hand which involves SBD$2,000 which value will fall below and as such I am bound to consider each case on their own merits and set of facts.
    
13. In terms of sentencing, the cardinal principle is simple, that is, each case must be decided on its own unique set of facts. Past cases can only be used as a guide and sometimes can be of little value. In Sahu v Regina^[5] 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.

style='text-iext-indent:0pt; margin-top:0pt; margin-bottom:0pt;' value='14' value="14">In considering your sentence and its effect on your youthfulness, I am also mindful of the sentiment expressed by Muria ACJ (as he then was) in the case of Paroke and Kupper v R^[6] whe stated:

“I do not accept the suggestion that because an offender is young and a first offender, he should not be sent to prisoncases of serious crime and housebreaking is such as crime, ime, the court must reflect the seriousness of the crime in the sentence they pass upon a young offender.”^[7]

15. I have the opportunity to look through past cases for guilty pleas for this offence. A closer look at the past cases^[8] shows that the range of the sentences imposed by the Courts for this offence ranged from suspended sentence to 3 years imprisonment.
    
16. Considering the seri seriousness of this offence, your level of culpability and balancing them with the mitigating and personal circumstances, the appropriate starting point in my view in your case is 8 months’ imprisonment.
    
17. I reduce 25% or 3 months accordingly to reflect your early guilty plea as provided in R –v-Qoloni^[9]. Having rest at 5 months, I further reduce 2 months to reflect the fact that you are a first time offender and your youthfulness. The resulting sentence therefore is that you will serve 3 months imprisonment.
    

Sentencing orders

18. I sentence you, Mr. Bozy Naqu Zekele as follows:
    
    • 18.1. Store Breaking contrary to section 300 (a) of the Penal Code – 3 months imprisonment.
      
19. Time spent in custody or pre-detention period shall be taken into account.
    
20. 14 days right of appeal applies.
    

THE COURT

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

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^[1] Pitamama v Regina [2005] SBHC 45; Criminal Case 003 of 2005
^[2] [2016] SBMC 10; Criminal Case 655 of 2015
^[3] (1951) 35 Cr. App. R. 164
^[4] [2016] SBMC 10; Criminal Case 655 of 2015
^[5] [2012] SBHC 122
^[6] High Court Unreported Criminal Case No. 21 of 1999
^[7] At page 2 of the judgement
^[8] 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
^[9] [2005] SBHC 73; HCSI-CRC 076 of 2005