R v Tela [2021] SBMC 9; Criminal Case 657 of 2021 (8 September 2021)

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

Criminal Case No. 657 of 2021

REGINA

-v-

BARNABAS CHARLES TELA
IAN WALE
JOHN PATTERSON

Date of plea: September 8, 2021
Date of hearing: September 8, 2021
Date of sentence: September 8, 2021

Elma R. Hilly for the Crown
Emy Rusi for the Defendant

SENTENCE

1. The defendants, Mr. Barnabas Charles Tela, Ian Wale, and John Patterson appeared before this court today, on a charge of Restriction of Movement of Persons in Honiara contrary to Clause 4(1) and (2)(a) and (b) of the Emergency Powers (COVID-19) (Honiara Emergency Zone) (Restriction of Movement) Order 2021 and Regulation 15 (1) (a), (2) and (4) of the Emergency Powers (COVID-19)(No.2) Regulations 2021 and section 21 (c) of the Penal Code (Cap 26.). Upon being arraigned, the defendants all entered guilty pleas. Consequently, the court has also enter conviction against them.
   
2. The summary of facts was agreed by Ms. Rusi of counsel for the defendants, after she had went through with the defendants. Thus, the court had dispensed the reading of facts, and heard submissions from both the Crown and defence. In brief, the facts show that, on August 30, 2021 at around 6:00am, during the period of lock down exercise, the Henderson Police came upon the defendants, who were all seen along the Eastern End of the Henderson Airport, being an area declared under the Honiara Emergency Zone. They were escorted to the Henderson Police Station, dealt with and were arrested for the said offence.
   
3. The offence of Restriction of Movement of Persons in Honiara, as per regulation 15 (1) (a), (2), and (4) carries a maximum penalty of 15,000 penalty units or imprisonment for 5 years, or both. This maximum penalty exemplifies the seriousness of the offence, and the legislature’s stern standing against the spread or public transmission of the virus, COVID-19, in our communities. However, each cases are to be decided on their own circumstances and unique bundle of facts, and no two cases are the same, albeit understanding the regulatory nature of this offence, and its strict liability aspect in law.
   
4. Before delving into the substantive submissions of both the Crown, and defence, I wish to make mention, at the outset, that the enforcement of this particular regulation^[1] must be applied distinct in considering the fact that it was an ‘exercise’ or ‘mock’ lockdown, as oppose to curbing the spread of an actual outbreak. As such, the sentencing methodology to deter offenders, must coincide with the pragmatic nature and circumstance of this case.
   
5. Mrs. Hilly of counsel appearing for the Crown orally submitted that this is a serious offence as reflected on its maximum penalty, and the defendants had deliberately chose to breach it, although knowing full well that there was a lockdown exercise and the area they were in was part of the area designated as an Emergency Zone. In addition, she made reference to some case authorities^[2] relating to prior lockdown matters in 2020, which the court had imposed fines and conditional discharge on defendants, but submitted that in light of the court’s position in R v Tapoika^[3], this court should imposed fine, and not entertain section 35 of the Penal Code. Therefore, asked the court to impose a fine sentence within the range of $300 to $500.
   
6. Mrs. Rusi of counsel for the defendants submitted that the defendants are all young offenders: Mr. Tela is 31 years of age, Mr. Ian Wale is 23 years old, and John Patterson is 22 years of age, hence, there’s room for change. She submitted that, for Mr. Tela, he is a married person with two children; the eldest is 3 years old, and the baby is 1 year old. He is the sole breadwinner, having to shoulder the responsibilities of a Father in the family. She submitted that they did the offence under honest mistake, after they had thought that the far eastern end of Henderson airport was outside of the area designated as Emergency Zone during the lockdown.
   
7. In relation to their mitigation, counsel submitted that they all pleaded guilty at the earliest opportunity, which saves the courts time and resources for a trial. They are all first-offenders, and had cooperated well with the police during investigation, of which they admitted to the record of interview. She also informed the Court that, the defendants had been in custody for 48 hours, and asked the court to consider this when imposing a sentence for them.
   
8. The lockdown exercise, or mock was made known to the people in a nationwide address by the Prime Minister, and through other media platforms, including social media. As such, on the dates commencing from 6.00pm on Sunday 29 August 2021 until 6.00am on Tuesday 31 August 2021, those living within the designated area of Emergency Zone were advised to remain at their place of residence, and no movement in and out of the said zone.
9. It is irrefutable that this was a ‘mock’ lock down, or an exercise to test our preparedness in the event of an outbreak. Therefore, it would be correct to say that, it is an exercise to teach us, correct us, and identify to us areas of which we have gaps, so we can better sharpen our readiness. Of course, this exercise was made in view of the fact that, Solomon Islands do not have the vital facilities and necessary equipment to confront an outbreak or community transmission of COVID-19, including its improved ‘variants’. Our government is doing its best to protect and safeguard our country, to teach us of the risks and dangers that this disease entail, and what it would be like, if in the event it enters Solomon Islands. A clear example is India, and Fiji being our nearest neighbor, which as we understand have highly sophisticated equipment and facilities but could not stand the outbreak of ‘delta’ variant.
   
10. We need to be prepared, because sooner or later, our borders may need to open for other services to proceed, and to allow for other incoming travelers into our country. And this may pose risk for the virus to enter our country. I acknowledge that this is an exercise or mock, and there are no positive cases currently recorded in the country. However, as mentioned above, this is the way we can test our preparedness, taking due account to our citizen’s lack of adequate understanding of COVID-19 and its deadliness’. I agree, I must treat this matter different to a real lockdown, where there’s an actual outbreak with real risk.
    
11. For these defendants, they had thought their area was outside of the designated Emergency Zone. Therefore, to identify there gap and provide recommendation, I would urge them to always pay close attention to details, when such issues of lockdown is looming, this is not a normal event, such that one should simply assume the regulation orders and go his or her way. Instead, we should be responsible and accountable for ourselves and family members. Accept proper, correct and rightful details and particulars, and disseminate the same to others. Do not take this COVID-19 disease jokily, instead, be proactive citizens.
    
12. For our frontliners, and those who are responsible for disseminating the information on ‘lockdown’, they too must make sure that our people fully understand the contents, particulars, and extent of such lockdown orders. There are those who are illiterate, and others who may have low or minimal understanding of such matters, thus, incumbent on responsible authorities to spread the message through awareness and so forth. I would have thought that an on the ground awareness for those especially at the border, like in this case, is needed to avoid confusion.
    
13. Our people need to take heed of these important message: do not joke with COVID-19, or it will make your family to suffer its harmful consequences, including death, if it reaches our shore. For what is discussed above, I believe a rehabilitative sentence would best serve the message, for them to learn from their mistakes, and identify areas of gaps they need to work on, as the whole nation prepares itself for possible outbreak and future lockdown orders. To punish them now with hefty fines or imprisonment, would in my view, be too harsh, considering the aim of an ‘exercise’ or ‘mock’ lockdown.
    
14. I believe their 48 hours or so, in police detention had served them sufficient message for their folly, and the penalty they would likely receive should they return to Court for such offence in the future.
    
15. Having considered the circumstance of the offending, weighing with similar case authorities, and balancing with the aggravating and mitigating factors, I am convinced that a sentence of good behaviour bond is appropriate in such a case.
    

Sentence orders

1. I hereby sentenced the defendants, Barnabas Charles Tela, Ian Wale, and John Patterson to a good behaviour bond for 1 year in the sum of $500. The defendants must keep the peace and be of good behaviour for this said period.
   
2. Conviction is entered.
   
3. 14 days right of appeal is applied.
   
4. Order accordingly.
   

THE COURT

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

MR. LEONARD B. CHITE

Principal Magistrate

Central Magistrate Court

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^[1] 15 (1) (a), (2), and (4)
^[2] CMC-CRC 534 of 2020 Regina v Elliot , CMC-CRC 529 of 2020 Regina v. Foufaka, and CMC-CRC 525 of 2020 Regina v Aike & Others
^[3] [2020] SBHC 11; HCSI-CRAC 693 of 2019 (10 February 2020)