R v Manaka [2024] SBMC 8; Criminal Case 502 of 2023 (22 March 2024)

IN THE CENTRAL MAGISTRATES COURT
IN THE SOLOMON ISLANDS
In the Criminal Jurisdiction

Criminal Case No: 502 of 2023

BETWEEN:
REX

V

AND:
GEORGE MANAKA

Date of plea & sentencing submissions: 13^th of March 2024
Date of sentence: 22^nd of March 2024
Prosecution: Moffatt Tei (PPD)
Defence: Ms Jennifer Happilyn (PSO)

SENTENCE

Back-ground of matter

1. Mr George Manaka, the charge against you comprises of one count of simple larceny. This offence, is contrary to section 261 (1) of the Penal Code.
2. Following your arrest and the charge at hand, you were supposed to appear here at the Central Magistrates Court, on the 10^th of July 2023, unfortunately, the matter was never listed due to the carelessness of the clerk who received the charge.
3. On the 17^th of July 2023, the matter was relisted and the court was informed of how the matter was never listed on the 10^th of July 2023. Since it was uncertain on whether or not you had turned up to court and did not see your name on the list, the prosecutor at that time, applied to have the matter adjourned, so that a summon can be served on you.
4. On the 31^st of July 2023, the matter came before me, and I was informed that the summon was not served on you, since you had travelled back to your home village. I was also informed that the PPD office in Honiara have arranged with officer Pisei to execute the warrant of arrest. I then brought to their attention how the nearest police station to your village would be Seghe Police Station, as opposed to Gizo Police Station, where Officer Pisei is serving.
5. On the 24^th of January 2024, an application for remand was made, this was after a number of reviews that the matter went through. Having perused the bench notes recorded on the 24^th of January 2024, I cannot seem to find any explanation as to why you have been evading court for over 6 months, or if you ever came up to the court registry (criminal) to enquire upon the date this matter is to be called on.
6. After the 24^th of January 2024, the matter went through multiple adjournments with respect to securing of legal representation, serving of disclosures, obtaining instructions, settling agreed facts, given your indication of a guilty plea, and finally, the plea and sentencing submissions.
7. In terms of your plea, I recorded a guilty plea on the 13^th of March 2024, and thereafter entered conviction against you based on the facts agreed to.

Brief facts

8. Parties have agreed to the following facts, in accordance to section 21 of the Evidence Act 2009:
9. That you, Mr George Manaka, are the defendant is this matter and that you are now 41 years of age.
10. That you are from Gatokae, Sobiro Village, Western province, and that your current residence is at Vura II, in East Honiara.
11. The complainant/victim in this matter is Mr Junior Francis Fanai.
12. That you and Mr Fanai are good friends and that you both reside at Vura II.
13. That on the 16^th of March 2023 around 2100 hours and 2200 hours, Mr Fanai and yourself boarded a bus from Mbokonavera to Town Council.
14. Upon arriving at the Town Council, you got off and escaped with those items, namely Samsung Galaxy AO3, worth $1,600.00 and a speaker brand Tronsmart T6, worth $900.00, the property of Mr Fanai, without his consent.
15. The matter was thereafter reported to Naha Police, which led to your arrest. The items were said to have been recovered.

Maximum penalty

16. Section 261 (1) of the Penal Code, highlights that stealing is an act of Simple Larceny, and a felony that is punishable with a 5-year term of imprisonment^[1]. It is only correct to state, that the level of seriousness associated with any offending, is reflected through their maximum penalties. This was highlighted in the case of Regina v Kemakeza, where the court states 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^[2]”.

Matters of aggravation

17. Prosecution believes, that the following the aggravating factors involved;
    1. The seriousness of the offence generally;
    2. The defendant’s level of culpability;
    100. Premeditation;
    4. At night
    5. Disrespectful.
18. I agree with prosecutions in relation to the seriousness of the offence generally, the fact that the offending was said to have occurred at night time, as well as your level of culpability, where you have played all the leading roles on your own. In terms of premeditation, prosecution has not provided me with more evidence that could have led me into believing that you have been planning this way ahead of time.
19. While it can be said that what you did was disrespectful, I would classify this under breach of trust. Facts states that, Mr Fanai and yourself are good friends, and that both of you reside at Vura II. Your actions would no doubt result in a breach of trust between Mr Fanai and yourself.

Matters of mitigation and personal circumstances

20. Both the prosecution and defence believe that the guilty plea entered is a factor to consider in this regard. furthermore, defence has also highlighted that you are very remorseful for your actions. When it comes to proving genuine remorse, there should at least be evidence from close family or community members, of the steps you have taken to amend the wrong you have done. In my view, proving genuine remorse is assessed over time. While your guilty plea may be regarded as taking responsibility for your own actions, and that you are openly willing to face the consequences that entail your actions, it is uncertain, if you truly understand the impact of what has happened and if you have taken positive steps in making amends. I hope, that you prove how deeply sorry you are through change of behaviour, and from total refrain from such unlawful actions.
21. The time spend in custody is also taken into account
22. In terms of your personal circumstances, I am told that the highest level of education you reached, is Form 6. I am also told that you are now 41 years old, unemployed and still single.
23. In my view, I do not believe the details in the foregoing paragraph are of any help. Firstly, you are now 41 years old, obviously, you have reached an age where you should be a role model to the younger generations. Furthermore, as a single man, you should be using your time and energy in improving your skills and knowledge to assist through ways that are deemed beneficial to the community that you are part of.
24. The fact that you are unemployed should not be a stumbling block that hinders you from achieving greater things in life.
25. Obviously, you made a decision that does not speak well of yourself, especially someone your age.

Comparative sentencing

26. Defence Counsel, Ms Happilyn, has referred me to 3 cases. The first one, is that of Eapa v Reginam, which involves the stealing of a CD player and two speakers. A 9 months custodial sentence was imposed following conviction, but was later suspended for 2 years, upon appeal to the High Court. The 9 months sentence was suspended for 2 years on the basis that the items were returned to the victim, by the Appellant himself, but was never put before the Magistrate, when the case was heard at the Magistrates Court^[3].
27. The second case is that of R v Teleu, which involves the stealing of $850.00 from inside a vehicle, parked at the Central Market carpark area. The Defendant in the Teleu case committed this offence, during a period that he was still serving a bound over sentence imposed at the Central Magistrates Court. The defendant was chased by the Complainant but he kept on fleeing until he was apprehended by police officers who happened to be present at that time. The money was then retrieved and a sentence was imposed, taking into account the fact that he has breached his bound over sentence and the fact that he has spent time in pre-detention, for breaching his bound over sentence^[4].
28. The final case is that of R v Gwali, an unreported matter with roots going back to the 2021 riots. The act involved was that of stealing a desktop from inside the Administration office, at Solomon Tobacco Company. The desktop was said to have been returned, and a sentence of 12 months imprisonment was imposed, but fully suspended for 2 years^[5].
29. 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, as he was then, in the case of Regina v Ramosala:

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

However, and as highlighted in the case of Sahu v Regina, comparing sentences does not provide proper guidance^[6]. 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^[7]”.

Comments on stealing

30. The prevalence associated with stealing, continues to soar at an increasingly alarming rate. This in my view, reflects the arrogance and ignorance that lies within the hearts of people who see stealing as a fast way of earning property and money.
31. Stealing should not be a justification for unemployment, or wrongs done to us by others, or in overall, failures in life. Rather, it is something that only takes away our good reputation.
32. People who engage in this act, must be reminded that there are no short cuts in life, except for persistence and perseverance.

Sentencing remarks

33. Stealing, like any other offence, will not be tolerated by the courts. People must understand the risk they are taking, should they wish to involve in such wrong doing. I note, the sentences imposed in the cases referred to me, by Counsel Happilyn, and the circumstances involved. The sentence in the case of Eapa was imposed in 2001, some 23 years ago, while those in Teleu and Gwali were imposed in 2017 and 2022 respectively.
34. I understand, the Appellant in Eapa v Reginam, had returned the items he was said to have stolen, which resulted in the 9 months imprisonment imposed on him to be suspended for 2 years. In Teleu, the defendant broke into a parked vehicle and stole $850.00, and tried to escape but was apprehended by police. This occurred whilst he was still serving a bound-over sentence. As for Gwali, the item said to have been stole was returned, however, I am not provided with details on whether or not the item was voluntarily returned, or if the police have played any role in having the item returned.
35. My question at this stage is, how effective have past sentences proved to be, in trying to deter people from stealing? It seems that this unlawful act, is now committed and continues to increase through very advanced ways. One would be walking down the road without realising his or her money had been stolen. Another person might have checked his windows and doors for over 5 times, before going to bed at night, but still wakes up to find that his or her valuable property has been stolen. A family living in Honiara or else where in the provinces, might open up their doors for a relative to come and live with them, and after sometime, come to find that this particular relative has been stealing from them. Two persons may have been friends for a very long time, but one of them comes to find that the other is not a genuine friend, and has been stealing from him.
36. The examples given in the foregoing paragraph, all illustrate how we are not safe within the comforts of our homes, circle of friends, and within public spaces. Those who have come to make stealing a habit, and those who want to try out their luck with stealing, must be warned about the crushing effects they will face, during and after the criminal justice system.
37. I now turn to the reason as to why you are currently on remand. This matter was not listed on the day you were bailed to appear. However, you knew very well that you are charged and expected to appear before the court. You took no steps, in trying to get information about when the case will be listed again. The Central Magistrates Court is located at a place that everyone in Honiara is accessible to, and so is the Central Police Station, where the Police Prosecution Department is located, you could have walked up to these two offices and make your enquiries. Clearly, your actions only reflect your ignorance towards the court and the police.
38. It is way overdue for the courts to keep on looking for ways, as to how best this kind of offending should be reduced, but should rather be taking actions with teeth that bites deeply. In ensuring this, the courts must always be reminded of the paramount considerations they are obligated to consider.
39. In R v Ball (1951) 35 CrAppR 164, Hilbery J, remarked in his judgment of the Court of Criminal Appeal, 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)^[8].”

40. Hence, it is my view, that the sentence ought to be passed on you this morning, should be proportionate to the manner in which you committed the offence at hand, how you have evaded court since July 2023, until the 24^th of January 2024, when the court granted the application by prosecutions to have you remanded. On the other hand, the sentence should also contain sentiments of a second chance. I cannot do a guess work, on what may have prompted you to do what you did, but I do believe, the experience you now have with the criminal justice system, is one you will never forget. I hope it has assisted you to understand why it is very important to stay away from such wrong doing.
41. With the aim to address the prevalence of stealing, the need for both general and specific deterrence, retribution, rehabilitation, and prevention, a custodial sentence is therefore warranted in this regard.
42. Your actions on the night in question, involves you running off with Mr Fanai’s valuable properties. You tricked him after accompanying each other as good friends, who reside in the same neighbourhood.
43. I will now consider a range from 15 months to 20 months imprisonment. With the facts before me, I pitch my starting point at 18 months. I deduct 1/3 to reflect the guilty plea entered, which brings us to 12 months. I further deduct 6 months to reflect your willingness to face the consequences of your wrong doing, and the time spent in custody. I add a total of 4 months to reflect the seriousness involved with this offending, the fact that you committed this offending at night, your level of culpability which sits at the mid-range of the seriousness involved and breach of trust. The court therefore reaches a total of 10 months imprisonment.
44. With the findings, comments and remarks alluded to, I now order as follows:

ORDERS:

1. Mr George Manaka (aka) Pogie, for the offence of simple larceny, you are hereby ordered to serve 10 months imprisonment, including the time spent in custody;
2. Since you have already spent a total of 1 month and 22 days in custody, the remaining period is suspended for a period of 2 years.
3. The court will invoke section 45 (1) (a) of the Penal Code, in the event you commit a subsequent offence.
4. You are to be released at the rising of the court, forthwith.
5. Right of appeal applies with 28 days from today.

Dated this 22^nd day of March 2024.

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

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^[1] Section 261 (1) of the Penal Code of Solomon Islands
^[2] 2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008)
^[3] [2001] SBHC 77; HC-CRC 248 of 2001 (2 November 2001)
^[4] [2017] SBMC 17; CMC-CRC 388 of 2017 (6 June 2017)
^[5] (Unrep) CRC 532 of 2022.
^[6] [2016] SBMC 8; Criminal Case 1297 of 2015 & 27 of 2016 (5 April 2016)
^[7] [2012] SBHC 122; HCSI-CRC 504 OF 2011 (3 October 2012)
^[8] (1951) 35 CrAppR 164