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Regina v Maenu [2007] SBCA 4; CA-CRAC 20 of 2006 (30 March 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT

On 28th July 2006 following a trial occupying all or part of seven days, the respondents in this appeal were convicted of robbery contrary to section 293 (2) of the Penal Code but acquitted of armed robbery under section 293 (1) (a) of the Code. Mr Commissioner Chetwynd imposed a sentence of two years imprisonment starting from the date of the judgment but he suspended twenty-one months of that sentence. He did not take into account time spent in custody because they had spent different periods in custody and he thought it fairer to ignore those periods even if meant that "some of you will therefore served longer time in prison."

The Director of Public Prosecution appeals on the ground that the learned Judge erred "in imposing manifestly inadequate sentences without taking into account sufficiently or at all general deterrence, the seriousness of the offence, the prevalence of the offence, specific deterrence, the loss to the victims, and parity in not taking into account times in custody."

The basic facts can be stated shortly. On 8 September 2002 the respondents who were in a red Hilux vehicle driven by John Robu Maenu pulled up behind a parked taxi, confronted the taxi driver and removed the keys from the ignition of the taxi. A gas canister launcher was also removed from the taxi and the Judge found that that was an offensive weapon.

Allen Makabo then drove the taxi away. The taxi was never recovered by the taxi driver or its owner.

The Judge rejected a submission that the defendants’ were entitled to be acquitted under section 16 of the Penal Code by reason of duress by one Devesi who had joined the respondents in the red Hilux.

He did, however, take into account a number of facts which led him to impose a 2 year sentence and then to suspend all but 3 months of it. He had regard to their previous good conduct, to the fact that although they could not prove duress they were frightened by Devesi. He did not accept the claim that the gas canister launcher had been pointed directly at the taxi driver and found that it had played no part in the robbery.

In our judgment the Director is entitled to say that this sentence, particularly because of the long period of suspension, was too light for this offence. It is made less adequate because the vehicle was never recovered.

The judge appeared to think, however, that because this offence was committed at a time when much of the nation was suffering from such acts as this, the respondents "used the excuse of the ethnic tension to do stupid things like this. Things you would never have done had the situation been normal." This, however, is not in our view on the facts of this case a mitigating factor.

Accordingly, we consider that the sentence here, in view of the suspension, was clearly inadequate. We are, however, entitled in the exercise of our discretion in disposing of this appeal to take into account the previous good character of the respondents, the fact that no violence was used but above all that the respondents have served the immediate period of their sentence. Except Maenu, who is in prison pursuant to a sentence for another offence, they were released from prison some four months ago.

Accordingly in all the circumstances we consider that the three respondents who are out of jail should not go back to prison. Having obtained our decision in principle that this sentence was inadequate we understood that the Director is disposed to agree. Since the respondents do not complain about the decision not to take into account periods spent in custody we do not deal with that. We shall not vary the sentence. The period of suspension is still in force and they must not do anything to end it and to bring the prison sentence into effect.

Lord Slynn of Hadley
President of the Court of Appeal

Adams JA
Member of the Court Appeal

Salmon JA
Member of the Court of Appeal