R v Mamamo [2020] SBMC 34; Criminal Case 810 of 2020 (14 September 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 810 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: AUGUSTINE MAMAMO

Mr Ephraim Pitasua for Police Prosecutions

Mr Samuel Balea for Defence

Date of sentencing and mitigation submissions: 11^th of September 2020

Date of sentence: 14^th of September 2020

SENTENCE

1. Mr Augustine Mamamo, you have pleaded guilty to the offence of, sale of liquor without holding a license. This offence is in breach of section 57 (1) (a) of the Liquor Act, Cap 144.
2. Section 57 (1) (a) of the Liquor Act provides:
   • (1) “Any person who sells liquor without holding a licence authorising the sale thereof shall be guilty of an offence and shall be liable^[1]”-
     • (a) “For a first offence to a fine of two hundred dollars^[2]”.
3. From the set of agreed facts tendered by Prosecutions and your legal representative, I was able to construe the following:

The complainants in this matter, is the community at Feraladoa. The Naha Police Post received reports from the Feraladoa Commumity, that you were selling alcohol illegally. Hence, on the 11^th of July 2020 at about 1:00 am, the Naha Police responded to the reports made. On their arrival at the Feraladoa community, they went and met with the individuals who made the complaint. Thereafter, they proceeded straight to the location provided by the Complainants. On their way, they met up with two individuals. I do not know what these two were doing at that time, since facts only mentioned that these individuals were invited for questioning.

From the questions posed, facts stated that the individuals admitted to have bought beer from one Augustine Mamamo. These same set of facts, have earlier identified this Augustine Mamamo as a very well-known figure, who lives at the Isa Valley, in Feraladoa, East Kolaridge. The officers then went straight to the location of the canteen believed to have engaged in selling alcohol illegally and did a search. As a result of this search, they were able to find 16 bottles of Saratonga. Mr Augustine Mamamo, whom in this case is you, was then apprehended. Following this, a formal report was then lodged by the leaders of Feralado Community, which led to your formal arrest.

4. Since you have agreed to the facts tendered, as supported by your legal representative’s signature, I then proceeded into entering conviction on your part.
5. At paragraph 2 of this sentence, you might have come across the fact that this offence attracts a maximum penalty of two hundred dollars, for first time offenders. In the year 2009, Parliament increased a good number of penalties from what was previously in effect. These increases, in my view, were not made out of random ideas, but may have resulted from the observations carried out on the prevalence of offending’s. These changes were no doubt made with respect to the public interest.
6. For the offence of selling alcohol without a license, I personally believe that the increase from two hundred dollars to two thousand dollars, it still not enough. I say this in light of the very fact, that it is a self-fish and dishonest way of obtaining money. This view is made with due consideration towards the men and women who have gone through all mandatory legal requirements, for the purpose of engaging in alcohol and liquor retail. I take judicial notice that there are fees one should pay for, before obtaining either a retail full license or a retail beer license. Your actions clearly bypasses the legal requirements identified by the law in question.
7. While this could have been the part where I emphasise on the seriousness of this offence, I strongly recommend that our legislators consider increasing the current maximum penalty from what is currently imposed, to an amount that the courts could use as leverage to warn the general public from engaging in. Having sat on the bench for over two years, I would say that there has and will be an uncontrollable increase in this offending, if we are too busy to sit and address how best we can mitigate such occurrences.
8. While it may be true that the end result attracted by the sale of alcohol with and without license are basically the same, both actions will remain distinct from each other, in the sense that one is done in accordance to the law, while the other is done out of ignorance, arrogance, and disrespect towards the law. Clearly, your actions does not reflect well of you, especially with due consideration to the brief employment history your lawyer has submitted on.
9. From what was submitted on during the mitigation stage, I am quite astounded that someone like you, with a very colourful back-ground of employment status, would end up doing what you did. There is no doubt, that the ripple effect of the Corvid 19 pandemic has affected us all through different ways. However, it does not exonerate anyone from engaging in actions that are against the law[s].
10. Your lawyer has submitted that you are the only bread winner to your family. He also submitted that you are a father to four children, three of which are currently attending school. He tells me that you are the only one supporting them in school. I wonder where your wife is, whether she is still capable of supporting you or whether she has already met her demise. I raised the question regarding your wife, since I do not believe that you are the only one supporting the well-being of your family. There are many ways in which a woman can engage in, to support her husband and children, not necessarily through formal employment. I have come to note how lawyers have seem to be using the ground of sole bread winner as standard in nature. There are many instances in which the duties in relation to the well-being of a family, are carried out equally by both a husband and a wife. While women may sometimes bring less to the table, their efforts can be deemed equally to that of men.
11. It is with this, that I do not fully agree that you are the sole bread winner for your family.
12. Going back to the brief history of employment, submitted on by your lawyer, it would be true to say that there are many within the community you live in, who look up to you. For someone who has held very exclusive roles both within the public and private sector, to end up doing what you did does not reflect well of you. Instead of living a finer example to the people who look up to you, you did the total opposite.
13. I note from your lawyer’s submission that your intentions were not criminal in nature, but were done entirely out of the financial constraints you have been faced with after falling out of employment and most obviously, the effects of corona. Like I said earlier, corona does not give us any right to act in contrary to the law.
14. Further to that, I have also noted what your lawyer has stated, that you have only been selling two cartons of beer on weekends. First and foremost, I must say that this does not change the fact that you have acted in contrary to section 57 (1) of the Liquor Act. Secondly, you have chosen a time and place that is morally inappropriate. I take judicial notice that Feraladoa houses a good number of people, who are employed within the public and private sector. Some of these people might see the weekends as the only time they can rest peacefully without the thought of getting up early to go to work. The fact that a complaint has been made against you, is a clear indication of how some members of the community have become tired of actions that are directly linked to your small illegal business. The very explanation given by your lawyer will draw the inference that had it not been for the reports made against you, your dishonest actions would still continue.
15. I strongly believe that a person like you is capable of earning money through other ways that are in accordance with the law. With a wide back-ground of employment as yours, I no doubt believe your services are highly needed both within the public and private sector. I see no reason why you should only lean towards the illegal sale of alcohol to support your family
16. This morning, I will ensure that whatever sentence I impose on you, should be one that helps you acknowledge the existence of our national laws, and most importantly, helps you to turn away from your unlawful patterns of behaviour. Having mentioned this, I wish to refer to the sentiments uttered in 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)^[3]”.

17. Before going further, I will first of all identify the mitigating and aggravating factors which I have picked through the Prosecution and Defence submissions, as well as the case in its entirety.

Mitigating factors

• Early guilty plea;
• First time offender;
• Remorse; and
• Personal circumstances. In this regard, I will only draw consideration to whatever impact any harsh sentence might have on your children, whom I believe are still dependent upon you.

Aggravating factors

• Seriousness generally;
• Your level of culpability which I find to have gone beyond the mid-range of the seriousness involved; and
• The time of the offending, which was around 1:00 am in the morning.

18. In their submission, Prosecutions has referred to the case of Regina v Osifelo, where the Accused in that matter was arrested and charged for selling kwaso at the Honiara Central Market. Turns out that the odds were not in Mr Osifelo’s side, when he attempted to sell some kwaso to a Police officer who was not on duty^[4]. His Worship, Principal Magistrate Augustine Aulanga, having considered the entirety of the case, then imposed a sentence of 40 days imprisonment^[5]. In response to this, Mr Balea submitted that the circumstances involved in the case of Regina v Osifelo, is somewhat distinct, since it involved the sale of the kwaso, which in his view is illegally brewed, as compared to the 16 bottles of Saratonga you were selling. He also went on to cite the 1999 High Court case of Regina v Fouoto^[6].
19. The case of Fouoto, was a review done on three separate cases, all of which involved the sale of liquor without license. At the time of those offending’s, the maximum penalty was still fixed at a fine of $200. It was also in this case, that Justice Palmer, as he was then, made the remarks that the fine of $200 for the offence at hand, is too low^[7]. He went on further to say, and I quote:

“It is obvious offenders are fully aware of the risks but are in it for the quick money and profits that can be obtained^[8]”. You would note that it took almost 10 years before our legislators moved to increase the maximum penalty from 200 penalty units to 2000 penalty units after the comments made by Justice Palmer, as he was then.

20. Having cited the above case, your legal representative, Mr Balea, submitted for a fine of $400. I was directed to the fact that you have been unemployed since 2017 and the fact that you are the only one supporting the well-being of your family as reasons to justify the amount sought. In my view, the amount sought, if granted by the court, will not in any way allow this court to send out effective messages of specific and general deterrence to you and the general public. If it is indeed true that you are faced with financial constraints, then you should have sought assistance from the Public Solicitors Office who will be assisting you free of service, instead of seeking assistance from Mr Balea, who is a Private lawyer. I understand that the decision of having either a private lawyer or a lawyer from the Public Solicitors Office represent you, is entirely upon you to make. However, I do not think, the excuse of unemployment should come in the way. It makes minimal sense for a person who has been unemployed since 2017 to engage the services of a private lawyer when he will have to pay for the services given, and on the other hand, ask for a fine that is way below the maximum penalty.
21. Clearly, the circumstances faced back in the year 1999, cannot in any way be compared to what we are currently experiencing in the year 2020. Much has changed, and in order to cope with the lifestyle and prevalence of offences such as the one in hand, the courts should toughen their approach in dealing with cases such as this. Clearly this is not the time to sit and observe, but time that prompt actions be taken to ensure that things do not run amok.
22. I acknowledge the efforts put in by Mr Pitasua and Mr Balea in directing me to the cases referred to. I have always acknowledged that comparing sentences is vital in the sentencing stage, since it assists in minimizing objectionable disparity, or as put by His Worship, Principal Magistrate Augustine Aulanga, in the case of Regina v Ramosala:

“To ensure uniformity and coherence, past cases can be of significant assistance^[9]”.

23. However, and as highlighted in the case of Sahu v Regina comparing sentences does not provide proper guidance. In his own words Pallaras J, stated and I quote:

“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^[10]”.

24. As assessors of both facts and law, Magistrates and Judges in this jurisdiction are tasked with the role of ensuring that the outcome of each case must be reached with due consideration to its own set of facts and matrix. As stated in the case of 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)^[11]”.

25. From the facts before me, and the circumstances surrounding the offending at hand, I am of the view that whatever sentence I impose, should be one that makes you feel responsible for your own actions. Moreover, it should also achieve the aim of rehabilitating and retribution on your part. As a father and a respected figure, you need to live the example that ought to come from an adult like you. This morning, I will not only emphasis on the need for rehabilitation and retribution, but also the need for both specific and general deterrence, as well as that of prevention.
26. With this, I am of the view that the appropriate sentence I should impose, is that of a fine. With the maximum penalty being set at 2000 penalty units, I will hereby consider a range from 1000 to 2000. With the reasons alluded to throughout my discussion, I will mark my starting point at 1500. A reduction of 500 (1/3) is done to reflect the early guilty plea entered. A further deduction of 300 is done to reflect the three remaining mitigating factors, which brings us to 700. To reflect the aggravating factors identified, I hereby add 600, with 300 for each of the two factors identified.
27. It is with this that I now order you to pay the following fine:

ORDER:

(1) For the offence of sale of liquor without license, you are sentenced to a fine of SBD$1300;
(2) Fine is due by the 17^th of September 2020;
(3) In default of payment, 2 months’ imprisonment;
(4) The bottles of Saratoga beer confiscated during your arrest are hereby forfeited to the state and are to be auctioned at an amount deemed appropriate by the court; and
(5) Right of appeal applies within 14 days from today.

Dated this 14^th day of September 2020.

__________________

THE COURT

Emily Z Vagibule - Magistrate

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^[1] Section 57 (1) of the Liquor Act, Chapter 144.
^[2] Section 57 (1) (a) of the Liquor Act, Chapter 144.
^[3] (1951) 35 CrAppR 164
^[4] [2016] SBMC 32; Criminal Case 905 of 2016 (6 December 2016)
^[5] Above n4.
^[6] [1999] SBHC 77; HC-CRC 251 of 1999 (12 August 1999)
^[7] Above n6
^[8] Above n6
^[9] CMC-CRC NO: 1297 OF 2015 & 27 OF 2016
^[10] [2012] SBHC 122; HCSI-CRC 504 OF 2011 (3 October 2012)
^[11] [1998/89] SILR