R v Adifaka [2020] SBMC 16; Criminal Case 282 of 2020 (18 March 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 282 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

AND: MOSSELY ADIFAKA

Before Emily Z Vagibule

Ms Florence Hiroshachi for the Crown

Ms Delilah E kukura for Defence

Date of hearing: 17^th of March 2020

Date of sentence: 18^th March 2020

SENTENCE

1. Mr Mossely Adifaka, on the 17^th of March 2020, you were arraigned on the count of consuming liquor at a public place. You entered a guilty plea and with that we proceeded into the sentencing and mitigation stage. Following that, I then adjourned this matter to have the sentence delivered today.

FACTS OF THE CASE

2. The agreed facts before me shows, that on the 8^th of March 2020, you were with a group of boys. It was around 2:25am when the Central Response Unit Officers sighted the group you were part of, in front of the entrance to the Children’s Park at Rove. Facts further states that you were all holding cans of beer. The officers then approached and asked that the cans of beer be poured. Instead of complying with what was asked of you, facts showed that you continued on drinking from the can of beer in your hand. Following that, you then threw the can of beer onto the middle of the road. It was due to this that you were arrested and later charged.

MAXIMUM PENALTY

3. The maximum penalty for this offence, as correctly stated during the submissions made yesterday, is a fine of 2000 penalty units^[1]. Note that prior to the year 2009, the maximum penalty was just a fine of $200.00^[2]. Having increased the previous amount ten (10) times more, is a clear illustration of the stance shared by our legislators when it comes to the offence at hand.
4. While one could argue that humans do make mistakes, I believe that our presence in court today, is one that could have been easily avoided. I say this because, you were at the wrong place at the wrong time doing the wrong thing. While I accept that there are times in which ones action sometimes gets carried away due to their youthful adventures, being ignorant of what is right and wrong, is not an excuse.

PROSECUTION’S SUBMISSION

5. In her oral submissions, Ms Hiroshachi highlighted on how the offending at hand has been a great concern for the Police. She also touched on the individual responsibility where one has towards avoiding such actions. Ms Hiroshachi further submits, that whatever sentence the court imposes should be one that reflects the principles of deterrence.
6. She finally suggested that a sentence of fine should be considered in this regard.

DEFENCE’S SUBMISSION

7. In light of the submission done on your behalf, Ms Kukura clarified, that on the night of your arrest, you were drinking with your friends at the Iron Bottom Sounds (IBS). She further submits that it was when you were heading towards the Children’s Park at Rove that the incident occurred. She states that the only aggravating factor presented by this case is your failure to comply with police orders.
8. On the other hand, she has asked that the following be also considered:
   • (i) Your early guilty plea;
   • (ii) The fact that you are a first time offender;
   • (iii) Your remorsefulness;
   • (iv) Your cooperation during the course of these proceedings; and
   • (v) Your personal circumstances. This will include your youthfulness and the fact that you are a student.
9. Having stressed these factors, she then asked that a sentence be done subject to Section 35 of the penal Code. She is simply asking me not to enter conviction on you since the matter in its entirety, is one that does not warrant a conviction.

ANALYSIS

10. As an assessor of both fact and law, it is my duty to ensure that each case is treated differently from the other. I do acknowledge that each case is founded on its own merits and circumstances. This also determines whether the court will rely on case authorities and sections of the law provided by parties.
11. the Section referred to by Ms Kukura states:

Where, in any trial, the court thinks that the charge against the accused person is proved but is of opinion that, having regard to the character, antecedents, health or mental condition of the accused. or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge either absolutely or conditionally^[3].

12. While this section specifically states the word: trial, I for one would interpret it in its wider meaning to accommodate all parts of a hearing or proceeding. This does not necessarily refer to the actual trial in proper.
13. This section also relates to Section 203 of the Criminal Procedure Code, where it states:
    

The court having heard both the prosecutor and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or may, pursuant to the provisions of section 35 of the Penal Code, without proceeding to conviction, if it is of opinion that it is not expedient to inflict any punishment notwithstanding that it thinks the charge against the accused is proved, make an order dismissing the charge either absolutely or conditionally^[4].

14. The actions you committed were entirely based on your decision making. This means, your level of culpability is fixed on the midrange of the seriousness of this case.
15. I do not know if this experience will teach you a lesson where you can learn from in the years to come. But I strongly warn you to never engage in such unlawful actions ever again. I am sure your parents did not raise you up to become a youth in conflict with the law. Further note that in this society, when someone as young as you, engages in any unlawful action, people will tend to criticize the way in which they were brought up. This will reflect badly on you parents, give them the respect they deserve and conduct yourself in accordance to what the law permits. Refrain from such no care attitude and stay away from trouble.
16. With the case at hand, I will ensure that whatever sentence I impose should come as a message of personal deterrence to you. Further to that, it should also reflect the need for rehabilitation and retribution.
17. The section referred to by Ms kukura, does not provide for a person to be totally discharged from any charge against him or her. There is an option to either discharge absolutely or conditionally. To have you discharged absolutely, would not be in the interest of rehabilitation and retribution. With that, and having weighed the entirety of this matter I believe that there is a high prospect for change in your part given your youthfulness. With this, I am of the view that conviction should not be entered, however, you should be discharged from the charge against you, pursuant to section 35 of the Penal Code, conditionally. This means, despite being discharged under section 35, you are to enter a good behaviour bond for a period of six months.
18. Having said this, my final orders are as follows:

ORDER

(i) That conviction will not be entered;
(ii) That you are to enter a good behaviour bond for a period of six months; and
(iii) Parties are at liberty to make an appeal against this sentence within 14 days from today.

Dated this 18^th day of March 2020.

_________________

THE COURT

EMILY Z VAGIBULE-MAGISTRATE

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^[1] Penalties and Miscellaneous Amendment act 2009 of Solomon Islands
^[2] Section 65 of the liquor act of Solomon Islands

^[3] Section 35 of the Penal Code of Solomon Islands

^[4] Section 203 of the Criminal Procedure Code of the Solomon Islands