R v Kilatu [2021] SBMC 10; Criminal Case 217 of 2021 (13 September 2021)

IN THE CENTRAL MAGISTRATES’ COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 217 of 2021

REGINA

-v-

FREDRICK KILATU

Date of plea: August 27, 2021
Date of hearing: September 3, 2021
Date of sentence: September 13, 2021

Sergeant. Iete Tebakota for the Prosecution
Donation Houa for the Defendant

SENTENCE

1. The defendant, Mr. Fredrick Kilatu, is charged with an offence of Larceny by Servant contrary to section 273 (a) (i) of the Penal Code (Cap. 26). Upon being arraigned, he entered a guilty plea. Consequently, a criminal conviction is thereby recorded against him. I shall now deliberate on his sentence.
   
2. The agreed facts reveal that, on January 29, 2021, Ms. Irish Hania, a waitress at the Heritage Park Hotel, was on duty serving customers at the bar when a colleague of hers, Ms. Jacinta, approached her and informed her that some cans and bottles of beer drinks in the fridge were empty with their lids intact. Ms. Irish went and confirmed it, and so she went and reported the matter to their Chief Security, Mr. Dalton Tana. An investigation into the matter ensued, and the company’s Close Circuit Television (“CCTV”) footage were extracted and revealed the defendant as the culprit. The CCTV footage disclosed the defendant washing the empty bottles and cans, and replaced them with the unopened ones. He then took the unopened (new) cans and bottles for his own gain without the authorization or permission from the company.
   
3. The matter was later reported to police and the defendant was arrested and charged accordingly. The defendant took: 54 Solbrew bottles, 24 cans of blue canoe, 13 cans of brown canoe, and 13 cans of whiskey cola. The stolen properties were valued at $2,600.
   
4. The maximum penalty for an offence of Larceny by Servant under section 273 of the Penal Code is 14 years’ imprisonment. Nonetheless, it is also the law of this nation that the maximum penalty is only applied in the most extreme or worst form of Larceny by Servant. This offence is undoubtedly a serious one, as reflected in its maximum penalty. And the court as an institution to enforce the intention of our legislature must make sure these maximum penalties are used as guidelines in establishing fitting starting points, after balancing the circumstance of offending, the defendant’s criminal culpability, and the range of which courts imposed on past similar cases.
   
5. The facts reveal the following as aggravating factors. First, an audacious and planned act to steal from the employer, Heritage Park Hotel. It was only fortunate that he was caught on the CCTV cameras. The motive behind the act was unclear, but I agree, it involves some planning. The act of washing the empty bottles and placing them back into the fridge with their lids intact, and replacing them with unused cans and bottles, demonstrates careful execution. Second, breach of trust. He was a supervisor at the time of offence, and had used his position to commit the offence. Indeed, there was some degree of trust and confidence that was placed on him by his employer, and other employees that he was supervising at the time of offending. Finally, it was agreed that the defendant had used the stolen properties to his own benefit and gain, and that nothing was returned, or retrieved.
   
6. On the other hand, I consider the following as mitigating factors. First, he pleaded guilty to the offence, which has spared the foreseeable expenses of a trial. I accept that the defendant appeared remorseful in court during the sentencing hearing. Second, the defendant is a first offender, and has a clean slate of criminal history. Finally, the defendant has cooperated well with the police during arrest and investigations, which ultimately resulted in the timely completion of his matter.
   
7. In relation to his family and personal circumstances; the defendant is married and his wife is currently pregnant of their first child. He is currently unemployed, and supporting his family through earnings received from selling betelnut and cigarette.
   
8. I appreciate counsel Houa for providing comparable case authorities, which will assist and guide the court to reach a just and proper sentence for the defendant. Before delving into the substance of the comparable case authorities, I wish to highlight the case of R v Kobi^[1](“Kobi”) which was also referred to by Apaniai J, (as he was then) in Regina v Leua^[2](“Leua”), in which Palmer J, (as he then was) outlined and adopted several guidelines from the English case of R v Barrick^[3] (“Barrick”), which I think is equally appropriate to this matter. First, he referred to the quality and degree of trust reposed in the offender including his rank. Second, the period over which the offence has been carried out. Third, the use to which the money was put. In addition, there are other factors relating to effect on fellow employees and the public confidence, which has been taken into account.
   
9. I must also state that, the above cases of Kobi, and Leua pertains to matters of which money was obtained from the employers, which must be distinguished to the case at hand where properties of cans and bottles of beers were stolen from the employer. The value of the stolen goods is totaled around $2,600, and nothing was recovered, or that the defendant had used it all to his own benefit.
   
10. I shall now address each criterion as it relates to the circumstance and facts of this case. For the first criteria, the defendant was a supervisor at the time of offending. The degree of trust reposed on him was surely high. Second, the defendant committed the offence in between November 1, 2020 and January 31, 2021. The third criteria is the use to which the money was put. In this case, the defendant had used the beers, totaling $2,600 for his gain. Nothing was recovered, and there is nothing to explain what he did with the stolen beers.
    
11. I was referred to the case of Fiuadi v Reginam^[4](“Fiuadi”), the facts were that, the Appellant was employed by Marine Division as an engineer. He was seen on the roof of the Marine Office on one Saturday evening removing a solar panel. And on inspection, it was found that the electric cables had been cut. He argued that he made the cutting to pass a message to the bosses that members of Seaman’s Association had a grievance. The value of the solar panel had not been indicated. The trial court found him guilty after trial and he was sentenced to 9 months’ imprisonment. The Appellant appealed against the conviction and sentence, but his appeal was dismissed.
    
12. I was also referred to Regina v Leua^[5](“Leua”), the facts were that, the defendant was a Principal Magistrate during the time of offending and was charged with 6 counts of larceny by servant. In that case, the defendant was alleged to have stolen $5,750. The money stolen were fines obtained during Courts circuits in 2008 and 2010 respectively. He was found guilty after trial in High Court and sentenced 6 months’ imprisonment to be served concurrently to his other counts.
    
13. In Tioti v R^[6] (“Tioti”), the defendant was convicted after trial of the offence of larceny by a servant. The amount involved was $2,000. The defendant was sentenced to 5 months imprisonment.
    
14. In R v Saungao^[7] (“Saungao”), the defendant was the Controller of Prisons. He was charged with 1 count of larceny as a servant and 4 counts of misconduct in office. He was found guilty of the charge of larceny and 2 counts of misconduct in office. Unfortunately, the amount involved in the larceny was not disclosed but it involved taking government materials for the repair of his private home. He was fined $3,000 in default, 5 months in prison.
    
15. Having outlined the case authorities, it would be correct to state that for this type of offence and similar circumstances, the sentence would range from $3,000 fine sentence to 9 months imprisonment, depending on the value involved, how it was spent, and the extent of harm it had on the employer and employees. Of course, whether it is a guilty or not guilty plea matter is a factor that court would also consider in its consideration. For this case, I am convinced that it falls above the cases of Saungao and Tioti, but below the case of Leua. Therefore, fix the starting point for this case at 8 months imprisonment.
    
16. In taking due account for his mitigating factors, I deduct 2 months to consider his early guilty plea, which has undoubtedly saves courts time, resources and money to run a trial. It demonstrated remorse on the defendant’s part as well. I further reduce another 2 months to consider his past clean criminal history, and his cooperation with the police during investigation, which has now led to early completion of this matter without unnecessary hiccup. In total, 4 months is deducted from the head sentence of 8 months. I further deduct a month to reflect his personal circumstances, being a married person, which should reflect an anti-crushing effect approach on his young family. Therefore, the defendant shall serve the 3 months imprisonment.
    
17. I will now deal with the question of, whether he should serve imprisonment term. In answering this question, I wish to rehearse the sentiments made by Ward, CJ, in Fiuadi, where he said (at p. 3):
    

“Any offence of dishonesty is serious, but when it is committed by a person in a position of trust in breach of the trust placed in him, it is more serious...

“An employee, by the nature of his employment, always has the opportunity to steal his employer’s property. The public service and all commercial undertakings can only function properly if they can rely on the loyalty and honesty of the people they employ. It must be clearly understood that in any offence where a breach of trust is involved a sentence of imprisonment will always be appropriate.”

18. I could not agree more, the case of Fiuadi falls similar to the one at hand. It is a larceny by servant offence, and it involved a breach of trust that was vested on him by virtue of his position, which attracts a high standard of trust and honesty. Clearly, he had breached the trust and performed dishonestly. Therefore, a custodial term is unavoidable in such circumstance.
    
19. Mr. Houa of counsel had asked the court if the defendant can be sentenced to a monetary fine or similar, which would allow him to repay back the employer, instead of an imprisonment term. I believe counsel may have intended to have the court invoke s. 27 of the Penal Code, to order compensation in substitution for any imprisonment term imposed. He was quite vague with this submission. Nonetheless, in addressing it, the court in Leua, considered that the defendant had repaid the whole amount in full to the employer. However, placed little emphasis on it, and said that it was quite late, and although so, it was considered as a strong mitigating factor, but, does not reduce the seriousness of the offence committed. Clearly, this was a payment in full, and alternatively, its result would be similar to what counsel is seeking, albeit, as a sentence. Seeking a monetary sentence would be, in my view, problematic, as such wish not to entertain it today considering the views expounded by the Court in Fiuadi.
    
20. Before concluding to the sentence, I shall now deal with the issue of whether to suspend the imprisonment term. It is also expounded in Fiuadi, that a suspension under s. 44 of the Penal Code, can only be employed in the most exceptional circumstances^[8]. Here, Mr. Houa of counsel have agreed that there is no exceptional circumstance to validate a suspending of the sentence. I hold the same view. Thus, any suspending of sentence is ruled out.
    
21. As a sentence remark, I must state that the defendant should take this sentence as a correction, and to provide a message for him and the wider community that those who find themselves stealing from their employers, if caught, are prison bound, unless demonstrates exceptional circumstance. This is a short and sharp sentence that would also allow for the defendant to rehabilitate himself, so that, once he is released from prison, he can be a changed person and can easily reintegrate back into the community.
    

Sentence orders

1. I hereby sentenced the defendant, Mr. Fredrick Kilatu to 3 months imprisonment.
   
2. Sentence to commence from this day.
   
3. Conviction is entered.
   
4. 14 days right of appeal is applied.
   
5. Order accordingly.
   

THE COURT

..................................................

MR. LEONARD B. CHITE

Principal Magistrate

Central Magistrate Court

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^[1] CRC No. 006 of 1995
^[2] [2012] SBHC 16; HCSI-CRC 105 of 2011 (22 February 2012)
^[3] (1985) 7 Cr. App. R. (S) 142
^[4] [1989] SBHC 17; [1988-1989] SILR 150 (12 December 1989)
^[5] [2012] SBHC 16; HCSI-CRC 105 of 2011 (22 February 2012)
^[6] [1999] SBHC 96
^[7] CRC No. 30 of 1995
^[8] R v Fiuadi, opcit