R v Alari [2020] SBMC 19; Criminal Case 412 of 2020 (11 June 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 412 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: JANET ALARI

Before: Emily Z Vagibule

Prosecutions: Mr Moffatt Tei

Defence: Ms Emy Rusi appearing on instructions from Mr Hayniel Max

Date of sentencing and mitigation submissions: 9^th of June 2020

Date of sentence: 11^th of June 2020

SENTENCE

1. Janet Alari, you have been charged with one count of possession of Marijuana (Indian hemp), which is contrary to section 8(b) of the Dangerous Drugs Act. In this context, the said section is to be read with section 39 (1) (a) of the Dangerous Drugs Act.
2. A guilty plea was entered when the charge was read to you on the 8^th of June 2020. We adjourned for the matter to go through the sentencing and mitigation stage. As per the written submission tendered by your legal representative, I note that you have agreed to the facts tendered by prosecutions. Hence, I then entered conviction based on your own guilty plea.
3. In summary, the facts of this case premises on the 5^th of March 2020, when the Central Respond Team was doing a mobile patrol within the Honiara Township. It was at the Number 3 area that they pulled over, on the suspicion that the market vendors there were engaged in selling of kwaso and marijuana (Indian hemp). Upon their search, they were able to discover a container holding 48 rolls of what was later agreed to be marijuana (Indian hemp) and a plastic bag that contains what they believed to be kwaso.
4. These items were discovered at the table you were using. You were then arrested and taken to the Central Police Station for further dealings. Later you were charged for the offence at hand.
5. The maximum penalty for this offence can be seen under section 39 (2) (b) which states:

2) Every person guilty of an offence against this Act shall, in respect of each offence for which no penalty is otherwise prescribed, be liable^[1]—

(b) On summary conviction, to a fine of five hundred dollars, or to imprisonment for six months, or to both such fine and imprisonment^[2].

However, in 2009, Parliament made a significant increase from the amount of five hundred dollars to five thousand (5000) penalty units^[3]. You would note that the increase was done ten times more than the previous amount. This should speak volumes of the concerns shared by our legislators, to deter the general public from engaging in such unlawful activities, or conduct.

I must also say, how I find it very interesting, that the penalty units that this court can impose, as reflected under section 39 (2) (b), is higher compared to what can be imposed in the High Court, which can be seen under section 39 (2) (a).

6. In terms of the facts tendered, I note that they were only confined to the time where the items were discovered at your market table. I was not told whether these items belonged to you or if they belonged to someone else. However, the issue regarding actual ownership in my view, will not make any difference. Having marijuana in your possession alone is a punishable offence.
7. I suppose you knew what was in the 48 rolls, and instead of refusing to watch over them, you wholeheartedly agreed to have the 48 rolls placed under your possession. I am sure you knew very well about the fact that marijuana is labelled as an illegal drug in this country. There is no need for us to make a complex study to understand why this substance is illegal. We already have walking examples within the streets of Honiara, already these people are becoming a painful sight, regardless of this, relevant authorities have not done much to address it.
8. Hence, whether you know it or not, your role in the whole cycle of possession and distribution of marijuana, will have a big impact on the number of people affected as well as the response which the government will be forced to take once our streets are to be flooded with people who continuously smoke marijuana and end up mentally incapable.
9. Your legal representative did refer to cases that are similar to the offence at hand and the sentences which were imposed. First and foremost, I must say, that it is highly unlikely, that two cases be treated the same. I say this because each case has its own merits and circumstances, hence, it will only be proper that all cases be treated separately.
10. In terms of sentence, I wish to reemphasise on the remarks made in R v Ball (1951) 35 CrAppR 164 where, Hilbery J, in his judgment of the Court of Criminal Appeal, commented at pages 165 - 166:

'>'In deciding the appropriate sentence a Court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforcet only with the object of p 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' as referred to in Anna Langley v R (supra)^[4].

11. Having perused the cases cited by your lawyer, there is one thing I can say for sure, that being, most of these cases were heard over nine years ago. I also see that most of the cases involves penalties ranging between $50.00 to $300 fines, to custodial and suspended custodial sentences. While the court must maintain its position in this regard, it does not necessarily mean that I should stick to what was decided on some nine years ago. The fact that people are still committing this very offence, is reason enough for me to strengthen my approach when it comes to the offending at hand.
12. However, while comparing previous sentences might appear to be of less guidance^[5] as was stated in the case of Sahu v Regina, it would still be important to minimize objectionable disparity, as was in R v Don Rector Nonga (Unrep. Criminal Appeal Case No. 32 of 1996, by Muria CJ, at page 6.
13. As highlighted in paragraph 10, one of the important conations which the court should be guided by, is that of public interest. The public must be t be protected at all costs, hence, the court should step in by imposing penalties that will deter the public from ever engaging in such unlawful actions.
14. Another consideration which will also be considered, is the circumstances surrounding the offending. In the case of R v Gome, a custodial sentence of 4 months was imposed. The difference between that case and the case at hand was that, Mr Gome was found to have grown and kept marijuana within the area he lived in. The circumstances in that regard was far more serious compared to what is currently before me. However, the need to prevent the public from engaging significantly in this unlawful act still remains the same.
15. People need to be taught the legal consequences they will face, once they are to be continuously ignorant of the warnings and physical signs relating to marijuana.
16. Hence, having paid significant consideration to the mitigating and aggravating factors submitted by both Prosecutions and Defence Counsel, I am of the view, that the most appropriate sentence to impose in this regard, for purposes of deterrence, prevention, retribution and rehabilitation, is that of a fine.
17. In this regard, I will bear consideration to the remarks uttered in Joel Likilia & Allen Kokolabu v R [1998/89] SILR :

Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide (Emphasis added)^[6].

18. Thus, having assessed the totality of the case, I believe, the appropriate starting point I will consider, is 3000. I further minus one third of the starting point which brings us to 2000. A further reduction of 1000 is done to reflect the remaining mitigating factors submitted, which brings us to 1000.
19. Having reached 1000, an additional 600 is added to reflect the seriousness involved and the level of culpability which I find to be over the mid-range of the seriousness involved. This then brings us to 1600.
20. Hence I now order that you be sentenced as follows:

ORDERS:

(i) For the count of possession of marijuana, you are sentenced to a fine of SBD$1600.00;
(ii) This amount is due by the 30^th of July 2020;
(iii) In default of payment, 3 months’ imprisonment; and
(iv) Any party that is aggrieved to this sentence, is at liberty to make an appeal to the High Court within 14 days from today’s date.

Dated this 11^th day of June 2020.

__________

THE COURT

EMILY Z VAGIBULE-MAGISTRATE

---

^[1] Section 39 (2) Dangerous Drugs Act

^[2] Section 39 (2) (b) Dangerous Drugs Act
^[3] Schedule 12, penalties and Miscellaneous Amendment Act 2009

^[4] 1951) 35 CrAppR 164
^[5] (Unrep. Criminal Appeal Case No. 32 of 1996

^[6] [1998/89] SILR