R v Susiota [2024] SBMC 7; Criminal Case 241 of 2023 (12 March 2024)

IN THE CENTRAL MAGISTRATES COURT
IN THE SOLOMON ISLANDS
In the criminal jurisdiction

Criminal Case No: 241 of 2023

BETWEEN:
REX

V
AND:
SAMMY SUSIOTA
ADAM JOHN BAIAHARO

Date of plea & sentencing submissions: 27^th of February 2024
Date of sentence: 12^th of March 2024

Defence: Mr Andrew Bosa (Public Solicitors Office-Kirakira)
Prosecution: Mr Abel Maelanga (PPD Honiara)

SENTENCE

1. Mr Sammy Susiota and Mr Adam John Baiaharo, you are jointly charged with the offence of Simple Larceny. This offence, is contrary to section 261 (1) of the Penal Code, as read with section 21 (c) of the Penal Code.
2. I read the charge separately to both of you, on the 27^th of February 2024, and recorded guilty pleas respectively. I thereafter entered convictions against the both of you after going through the brief facts presented.
3. In terms of the back ground of this case, I note that warrants of arrests were issued against the both of you for non-appearance. I confirm this on the basis that I was the Magistrate who issued these warrants of arrests on the 27^th of March 2023. Following the issuance of these warrants of arrests, the reviews commenced from the 28^th of April 2023 until the 2^nd of November 2023, a period of over 6 months. As per the court records, Prosecutions made updates that they have received information that you have both left Honiara and have travelled back to your home Province in Makira. The court was further informed that copies of your warrants of arrest have been sent to Kirakira police but are yet to be executed.
4. On the 2^nd of November 2023, you were both brought to the Kirakira Magistrates Court, firstly to have the warrants formally executed and for the prosecutions to make an application for the both of you to be remanded in custody. Since the 2^nd of November 2023 following your remand, there were questions raised on whether you both should be transported back to Honiara or not.
5. 0n the 18^th of January 2024, it was finally confirmed by prosecutions that the matter will be called via virtual court from Honiara to Kirakira.
6. The matter was finally relisted before me on the 27^th of February 2024, following Magistrate Fagani’s request, for reasons relating to jurisdiction.
7. The brief facts set out by the prosecutor and defence counsel are seen below:

Brief facts.

8. The defendants in this case are you, Mr Sammy Susiota, aged 19, and Mr John Adam Baiaharo, aged 23. You are both from Waita Village, in Makira/Ulawa Province. The complainant in this matter is one, Mr Grejas Abotaimae, who comes from Wago Village, in Makira/Ulawa Province.
9. It is alleged that the offence, occurred on the 8^th of March 2023, at about 15:00 hours, at the then Honorable Derrick Manuari’s residence, at Ngossi, Honiara, Guadalcanal Province. I take judicial notice that Mr Manuari is the out-going Member of Parliament for West Makira Constituency. It was alleged that that the two of you, stole the sum of SBD $4,700.00, the property of the complainant.
10. It was alleged that of the SBD $4,700.00, SBD $1,100.00 was already used by the both of you, and that only SBD $1,900.00 was retrieved. The remaining SBD $1,700.00 was not recovered as it was believed to have been used by another co-defendant that had escaped.
11. The matter was reported to the police and you both were then arrested and charged.

Maximum penalty.

12. As stated in section 261 (1) of the Penal Code, stealing is an act of simple larceny, and a felony that is punishable by imprisonment for five years^[1]. There is no other way of saying this, but when an offence is deemed serious, it must also bear a high maximum penalty, such as the one at hand. While cases must be dealt with based on its own set of facts and circumstances, it still does not change the fact that stealing is an act carried out by very arrogant and lazy people.

Matters of aggravation.

13. What I deem to be aggravating in this regard, is the act of stealing itself. I am not told whether the act was committed on the spur of the moment or that it was premediated. What can be confirmed is, someone’s property was stolen with the intention to permanently deprive the owner thereof. Only SBD $1,900.00 was retrieved of the amount that was said to have been stolen.
14. I also acknowledge the Modus Operandi involved, whereby, it is with no doubt that the offending was committed on the Complainant by the two of you and another person whom facts showed to have escaped investigations. You have all pooled your resources together, along with your skills and knowledge to deprive the Complainant off his money.
15. In terms of the delay accrued in having this matter disposed, I believe the no care attitude shown in evading court and going back to Makira when you both know that a charge is hanging over both of your heads here in Honiara, cannot be blamed on the court and the police. Clearly you have no respect for relevant authorities and you must be taught the consequences for such ignorance and arrogance.

Matters of mitigation and personal circumstances.

16. I take into account the guilty pleas entered on your part, at the earliest given opportunity. I also take into account your youthfulness and further hope that you deviate from this kind of evil, lazy and shameful doings that only people that were not taught well by their parents, can engage in. I also take into account that you do not have any previous convictions. Your lawyer has stated that I should also give credit to the time that you have both spent in custody, which in his view, would be since the 1^st of October 2023. As per my records, I note that the remand orders only took effect on the 2^nd of November 2023. Hence, if I am to consider the time spent in custody, it will only be back-dated to the 2^nd of November 2023 and not the 1^st of October 2023.
17. I will also give some credit to the fact that a portion of the money was retrieved. Had it not been for the investigations taken by the complainant and the police, nothing may have been retrieved, since your very intention was to deprive the complainant of the money. While remorsefulness is stated on your parts, I am not quite sure how this has been demonstrated.

Sentencing Consideration.

18. I am being referred to a number of cases involving the offence of simple larceny. One of these cases is that of Eapa v Regina^[2], the item involved was a CD player with two speakers. The defendant was sentenced to 9 months imprisonment, but was suspended for 2 years upon appeal to the High Court. The reason for suspension was the fact that the property stolen had been recovered.
19. I am also referred to the case of R v Rikiloni^[3], where the court imposed a custodial sentence of seven (7) months. This case involved the stealing of two (2) boxes of electrical supplies, which were never retrieved. In the case of R v Goro^[4], a sentence of three (3) months was imposed on the defendant, for stealing a light bulb.

Comments on the act of stealing.

20. The act of stealing has been one of the reasons, many residents in Honiara and elsewhere in the Provinces have seemed to have lost their own safety in their own homes. Society does not need people who utilize their strength, time, wisdom, knowledge and understanding on stealing from others. Rather we need future leaders who invest on working hard and improving their status through discipline and lawful avenues. This comes back to the need for effective discipline within our homes. As parents, it is our duty to teach our children in ways that not only prepare them for our departure from this earth, but also to enable them to be the leader’s society needs.
21. I am given no information as to the homes you come from and whether or not your parents are still alive or are no longer living together. An effective sentence would be one that addresses the primary force behind an offender’s negative pattern of behaviour as opposed to just punishing him or her to impress the public. Indeed, the public is served when an offender is assisted to turn away from wrong doing.

Sentencing remarks.

22. The act of stealing is one that the courts have tried to control, but in all their attempts, have not seem to achieve any positive outcome, as evidenced through prevalence. The cases referred to occurred within the period from 2001 to 2016. What can be said at this stage is, past sentences have not really assisted in reducing this crime. People continue to be victimized to stealing even within the comforts of their own homes. The question now is, would it be still practical to impose sentences similar to those imposed some 23 years ago, or even 8 to 9 years ago?
23. The level of skills associated with stealing continues to advance each day, with this comes the need to impose sentences that cripples the mindsets and head-quarters of such evil doing. Counsel Bosa has rightly asked that I consider the mitigating factors involved, which I will.
24. In his line of argument, the most important thing to consider, is the fact that part of the stolen money was recovered, and that both of you have already spent time in custody.
25. At this stage, I wish to highlight, that this matter has been mentioned in court for over 6 months before you were both remanded for breaching the bail conditions imposed by the Police. You knew very well that you were both obliged to appear at the Central Magistrates Court on the 27^th of March 2023, but you chose not to. Apart from evading coming to court, you then decided to return to your home Province, that is, Makira/Ulawa Province. This truly speaks volumes about the level of NO CARE ATTITUDE flowing through your minds, body and soul. I condemn you for such arrogance and irrational attitude.
26. The criminal justice system exists for a reason, and that is to assist in transforming any person who comes through it to turn away from wrong-doing, all for the well-being and safety of the society it serves.
27. At this stage, I wish to compare parts of this case to that of Eapa. In the case of Eapa, a 9 months custodial sentence was imposed, but was later suspended for 2 years upon appeal to the High Court. I note that the offending, occurred some 23 years ago, and I also note that the Appellant in that matter was courteous enough in returning the items said to have been stolen^[5].
28. In this case, I do not believe, that both of you ever had the urge to return the money you stole. I support this view on the fact that you have both used SBD $1,100.00 of the stolen money. The money recovered was only retrieved after the Complainant was suspicious of what you may have done.
    29. Facts also show, that SBD $1,700.00 was never recovered as it was already used by another person who escaped investigations. While cases have been put before me to consider in terms of comparative sentencing, I must also bear close attention to the period of time that has gone by between the cases cited, the prevalence of this particular offending, and the publics outcry for more tougher sentences to be imposed. While comparative sentencing must be considered in this regard, each case must be dealt with on its onwn set of matrix and circumstances.
    30. In Joel Likilua & Allen Kokolobu v R [1988 – 89] SILR 148 Ward CJ commented at page 149:

'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^[6].'

31. In Sau v R [1982] SILR 65 Daly CJ commented at page 69:

'I must add one further observation on the sentencing process and on appeals against sentence. There is an increasing practice of reference being made to specific previous cases in court. This was done by the learned magistrate in this case and the dissimilarities give counsel a ready – made ground for argument which they understandably take. Sentencing is not an exact mathematical process; if it were it could be done by a computer. The human element both in the person before the court and the sentencer remain a vital part of the process. Previous sentences demonstrate principles or parameters of sentence; but they should not be used as binding precedents to reach a sentence in a particular case. All the judiciary have access to each other’s sentences and we must rely upon the good sense and experience of the judiciary to reach sentences which reflect not only their own views but also the views of the community^[7].' (emphasis added)

32. In R v Ben Tugale, Brown Beu, Nelson Oma, James Sala, Loius Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997) Lungole – Awich J commented at page 21:

“Punishment in one case usually cannot be matched exactly with punishment in another. Circumstances usually differ even if only in details. Public view about how serious an offence is regarded also changes. Prevalence or otherwise of an offence during particular period also counts^[8].”

33. Reference is made to the cases highlighted in paragraphs 27, 28 and 29, in this ruling, to establish the need to acknowledge the change of circumstances we continue to face from the years 2001, 2015 and 2016, as compare to the very recent years of 2022, 2023 and now, 2024. This court will and must impose a sentence that has an effective consequence on the both of you and likeminded offenders.
34. Having alluded to the statements in the foregoing paragraphs, I hold the view that with the circumstances and facts involved, a custodial sentence is now warranted. I pay further consideration to the need for specific deterrence and much more emphasis on general deterrence, rehabilitation, retribution, and prevention. Prosecution has not served this court with a copy of their sentencing submission on the 27^th of February 2024, but only did so sometimes later. I will not tolerate such level of procrastination.
35. With this, I will now consider a range between 10 months to 12 months imprisonment. From the circumstances presented with this case, I will pitch the starting point at 10 months. 1/3 is deducted to reflect the guilty pleas recorded, which therefore results in 7 months imprisonment, after rounding off to the nearest even number. An additional 2 months for the remaining mitigating factors, resulting in 5 months. I add 5 months to reflect the considerations highlighted in the aggravation features, which brings us to 10 months.
36. Having reached this, I now order as follows:

ORDER:

1. Mr Sammy Susiota and Mr John Adam Baiaharo, you are both ordered to serve a custodial sentence of 10 months imprisonment, in relation to the offence of SIMPLE LARCENY c/s 261 (1) as read with Section 21 (c) of the Penal Code.
2. This period of 10 months imprisonment is to run from the 2^nd of November 2023, when you were both remanded at the Kirakira Correctional Centre.
3. Right of appeal applies within 14 days from the date of this sentence.

Dated this 12^th day of March 2024.

________
THE COURT
Emily Z Vagibule Pakoa (Mrs)
Principal Magistrate

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^[1] Section 261 (1) of the Solomon Islands Penal Code.
^[2] [2001] SBHC 77; HC-CRC 248 of 2001 (2 November 2001)
^[3] [2015] SBMC 2; Criminal Case 674 of 2015 (22 April 2015)
^[4] [2016] SBMC 24; Criminal Case of 2015 (15 September 2016)
^[5] Above n 2.
^[6][1988-89] SILR 148
^[7] [1982] SILR 65
^[8] (Unrep. Criminal Case No. 12 of 1997)