R v Gideon [2020] SBMC 33; Criminal Case 715 of 2020 (28 August 2020)

IN THE CENTRAL MAGISTRATE’S COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 715 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: CASPER GIDEON

Mr Iete Tebakota for Prosecutions

Ms Tracey Aisa for Defence

Date of sentencing and mitigating submissions: 24^th of August 2020

Date of sentence: 28^th of August 2020

SENTENCE

1. Mr Casper Gideon, on the 19^th of August 2020, you pleaded guilty to one count of threatening and using abusive words, one count of common nuisance and one count consumption of liquor in a public place. I entered conviction on your part after perusing the agreed facts jointly signed by your legal representative and the Prosecutor in carriage of this matter.

Facts

2. Before going further, I wish to highlight the facts leading to your arrest. On th12th of July 2020, at a time between 0300 hours to 0415 hours, you went to the Provincial Married Quarters at Yandina, Russel Islands and swore at the Police Officers at Yandina. One of the names that stood out in the facts, is that of Police Constable Dennis Maiguam, whom facts identify as the Complainant in this matter. Facts further states that you appeared fully drunk and was shouting at the top of your voice. Since it was in the wee hours of the morning, PC Maiguam became awoken by the loud noise you were making, especially the abusive words used.
3. Facts showed that when you went past PC Maiguam’s house, you said and I quote: “Denis fuckim ass blo u, bae me pushim knife lo ass hole blo u”. Facts also showed how you have been consuming liquor throughout the whole night, until the morning, and how you walked past PC Maiguam’s house with a plastic of Sara cans. It was when you walked past his house, that Maiguam saw you lifting an open can with your right hand, and drinking from the said can. This act of drinking from the can, was done on a public road within the Provincial area.
4. Your actions were then reported to the Yandina Police Station and as a result, you were then arrested and charged.
5. You were then transported over to Honiara, and following that, you first appeared in court on the 15^th of July 2020. On that date, I was informed that you were one of the Defendants recently convicted during the Yandina court circuit, on the 30^th of June 2020. Following your conviction you were then sentenced to a one year bound-over period, in the sum of $300.00, and a two weeks community service.
6. Your actions on the 12^th of July was seen as a breach to the sentence you are currently serving, in the sense that you re-offended not long after being sentenced by the court. I then ordered that you be remanded in custody, following the application sought by prosecutions. My decision for remanding you was based entirely on the fact that you have reoffended whilst still serving your sentence, and the fact that you do not have a fixed address here in Honiara. I also informed you of the right you have in applying for bail should you wish to do so.

Maximum penalty

7. The maximum penalties for the offences I convicted you for, are as follows:
   • (a) Count 1: threatening and using abusive words- 1000^[1] penalty units
   • (b) Count 2: Common nuisance- 1 year imprisonment^[2]
   • (c) Count 3: consumption of liquor in a public place- 2000^[3] penalty units.
8. The circumstances leading to these offending’s are uncalled for, and must be deemed as very serious in nature. I am somewhat surprised at the audacity you have in walking up to the house of a police officer and saying words that are no different from indicating your intention to cause him inhumane harm. I do not know how long it will take for someone to fully recover from injuries that might be caused from what constitutes count 1, should your words be put into action. This unlawful behaviour needs to be stopped, and respect should be showed towards our police officers given the fact that they are our custodians of law.
9. The maximum penalties highlighted above reflects the collective views shared by our lawmakers, when it comes to the offences at hand. Previously, the maximum penalties for counts 1 and 3, were fines of (Count 1) $10^[4] and (Count 3) $200^[5]. You would note that there has been an increase of hundred times for the maximum penalty for count 1, and an increase of ten times for that of count 2.
10. The remarks by His Lordship, Palmer, CJ, in the case of Regina v Kemakeza, at paragraph 19, is extremely significant when it comes to explaining the relationship between the seriousness of an offending, and the maximum penalty imposed by Parliament. His Lordship stated, and I quote:

“The level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty. The more serious an offence the greater the maximum penalty imposed^[6]”.

11. These maximum penalties, in my view, were not passed on a random basis, but were reached out of the collective views shared by our legislators, with due consideration being paid towards factors relating to public interest.

Discussion

12. All these offences put together, are some of which that have been, and are committed on a prevalent basis. From my observation, it is mostly committed by youths and a handful of people within their 40’s and 50’s. The actions constituting count 1 is indeed a true reflection of poor discipline throughout your upbringing. I fail to see a genuine reason that might have explained why you went and swore at the Complainant. Even if there was a genuine reason on your part, it does not give you any single right to go and say something threatening and abusive in nature. Your actions speaks volumes of the limited respect you have for others, especially our police officers. If you are capable of being aggressive and having no filter in whatever words or language uttered to a, or police officers, then it can also indicate how you would react when in conflict with any civilian.
13. In terms of common nuisance, I find it quite discourteous and rude, when people tend to think that their views are the only ones that matter, and as a result, end up doing things that causes great annoyance and disturbance to others. From the facts, I note, how you were shouting at the top of your voice at a time and place when people were still sleeping. I can only say that your actions were mad disrespectful and something needs to be done about it.
14. Your third count, is that of consumption of liquor in a public place. This offence, in my view is not only prohibited by law, but also causes a negative ripple in so many levels. An example in this regard, is the pathway you have laid for younger children who may have witnessed what you did, to instil at the back of their minds, that one day when they grow up, they too would want to do what you did. Bear in mind that children are the greatest imitators, hence when they see us doing something, whether it be good or bad, they will also spark the desire of doing the same when they grow up.

Sentencing principles

15. Under this sub-heading, I will address the sentencing principles or theories that ought to be considered, with due consideration to the circumstances surrounding each of these offending’s. From the facts, I have noted that all these offences have transpired from a single transaction. The court’s role in this regard, is to reach a conclusion that not only portrays a sense of punishment but one that allows an offender to turn away from his or her unlawful actions. These sentiments are done with due consideration to the case of 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 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' as referred to in Anna Langley v R (supra)^[7]”.

16. As rightly stated in the case cited above, one of the factors in which the court will lean towards, is that of public interest. While there is a need to deter offenders from engaging further in any unlawful act, there is also a need to protect the public from any negative outcome that flows from the commission of any offence, whether it be use of abusive words, common nuisance, consumption of liquor in a public place and the list goes on. To achieve this, the following sentencing theories ought to be reflected through the sentence or sentences imposed by the court:
    • (a) Messages of both specific and general deterrence;
    • (b) Prevention;
    • (c) Rehabilitation; and
    • (d) Retribution.
17. It would be of no use if the message conveyed in a sentence only points out the wrongdoings of an offender, without sending out words of encouragement that would give the offender a sense of belonging, especially the positive roles he or she is capable of taking up in the community he or she is part of, if they turn away from the very actions holding back the good in them.

Mitigating/ Aggravating factors

18. In terms of the mitigating factors involved in this case, your legal representative has directed my attention to the following:

1. Your early guilty plea which was taken at the first available opportunity given to you. By entering an early guilty plea, it reflects genuine remorse on your part. Moreover, it shows that you have taken responsibility over your wrong doing
2. I was also told about your personal circumstances, whereby your youthfulness was highlighted. Further to that, I am informed of how you are an active member of the Church of Melanesia in Yandina, and with such, you usually attend Sunday school programmes back in Yandina. While this is a very positive pathway for all of us, I strongly believe that had you been serious about your commitments to Sunday school, then you would not have done what you did, taking into consideration the date of the offending’s, which was during the wee hours of Sunday morning. Your actions does not reflect someone who truly has respect for his or her day of worship. I was also told that prior to the offending’s at hand, you were engaged in copra and fishing activities. For someone your age, and if this is true, I sincerely applaud you for having a mindset that has driven you into finding ways to gain an income, without relying entirely on your parents. Please utilize the resources available in Yandina and stay away from activities that will demoralize your wellbeing.
3. Hence I am being told, that when you return home, you will become a good role model for the youth and children back home and that your time at the Correctional Centre has indeed reformed and changed you. This is the kind of mindset you should have, and not one that is motivated by vengeance for those directly involved in having you arrested and eventually ending up at the Rove Correctional Centre.
4. I was also told about the lack of evidence indicating that you resisted arrest. This was stated to show how you have cooperated with the police during your arrest.

19. On the other hand, prosecutions has highlighted a couple of factors which they believe is aggravating in nature.
    1. The first being, the seriousness of the matter in general. As highlighted earlier, the seriousness of an offending is reflected through the maximum penalty imposed by law. Further to that, I am also of the view that the seriousness of an offence can also be reflected through the manner in which it was committed or omitted, and the ripple consequential effects.
    2. The second aggravating factor, is the involvement of alcohol. Prosecution believes, that when an offence is committed when under the influence of alcohol, it should be treated as aggravating in nature.
    3. The third factor identified by Prosecutions, is the time of the offending’. The facts have clearly shown that the offences have occurred during the wee hours of Sunday morning. Obviously people were still sleeping, but were deprived in that regard, when you decided to shout and curse at the top of your voice. This kind of heinous, coward and gibberish act needs to be stopped, and this not only goes to you, but others within the general public who think that their strength is measured through this foolish kind of attitude.
    4. The final factor touched on, is that of your previous conviction. I note that you are still serving the 12 months period bound over imposed on you, when you committed these three offences. This in my view is a clear reflection of the ignorance and disrespect you have towards the laws of this country as well as the court. I believe you have been warned from engaging in unlawful actions during the recent Yandina court sitting, but it seems that you have given in to your stubbornness. I will draw consideration to the date in which you were previously sentenced to the date in which the offending’s took place. From what is before me, you were only sentenced on the 30^th of June 2020, on the 12^th of July you decided to throw yourself against the law again. Please bear in mind that there is no benefit when you are being continuously in conflict with the law.
       

Comparative sentencing

20. In terms of comparative sentencing, I have been directed to a number of cases, specifically the circumstances involved and the sentences imposed by the court. While it is well accepted that comparing past sentences may not be of proper guidance and precision, it would still be of assistance when it comes to minimizing objectionable disparity, and as put by His Worship, Principal Augustine Aulanga, in the case of Regina v Ramosala, at paragraph 11,

“To ensure uniformity and coherence, past cases can be of significant assistance^[8]”.

21. However, it would be in the interest of justice that each case be dealt with according to its own facts and merits. As stated in the case of Joel Likilia & Allen Kokolabu v Regina:

“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)^[9]”.

22. It is for the very reason outlined in the case cited above, that each case be dealt with according to its own matrix.
    

Conclusion

23. With this, I am of the view that the appropriate sentences which I should impose for each of the counts against you are as follows:

ORDER

(i) Threatening and using abusive words contrary to section 178 (n) of the penal Code- 1 month imprisonment
(ii) Common nuisance contrary to section 172 of the penal Code- 4 months imprisonment
(iii) Consumption of liquor contrary to section 65 of the Liquor Act- 1 month imprisonment
(iv) Sentences to be served concurrently, taking into account the time spent in custody
(v) Right of appeal applies within 14 days from today.

Dated this 28^th of August 2020.

________________

THE COURT

Emily Z Vagibule- Magistrate

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^[1] Penalties and Miscellaneous Amendment Act 2009
^[2] Section 172 of the Penal Code
^[3] Above 1
^[4] 178 (iii) of the Penal Code
^[5] Section 65 of the Liquor Act

^[6] [2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008)

^[7] 1951) 35 CrAppR 164

^[8] Criminal Case No. 1297 OF 2015 & 27 OF 2016

^[9] [1998/89] SILR