IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 29 of 1997

REGINA

-v-

ROBERT MANI

High Court of Solomon Islands 
(Palmer J.) 
Criminal Appeal Case No. 29 of 1997 

Hearing: 23rd March, 1998
Judgment: 23rd March, 1998 

Appellant in person 
R. B. Talasasa for the Crown 

Palmer J.: This is one of the shortest oral submissions ever presented by an Appellant that I have dealt with to date. The Appellant’s (prisoner) oral submission were as follows: 

“First I am sorry for this matter. It is heavy for my children and family. I accept involvement in transport but not breaking in. That’s all.” 

In addition, I have the Notice of Appeal of the Appellant and letter accompanying notice of appeal. Also I have the report of the Social Welfare Officer in support of his appeal who recommended that the prisoner be put on probation. 

The Appellant was not represented in these proceedings. It appears that he had some difficulty in getting representation from the Public Solicitor’s Office and so had decided to do his appeal in person. Normally I would require Counsel to represent the Appellant but having taken the time to consider his grounds of appeal and the facts surrounding the commission of offence, I had decided to let him proceed on his own. 

The Crown is well and ably represented by learned Counsel, Mr. Talasasa, who with his usual verve has sought to assist the Court reach a fair and just decision in this appeal. To that, I am grateful. 

Basically, three grounds have been raised for my consideration: 

(1) that the sentence was too excessive; 

(2) that he was not involved in the actual charge of the offence of “break and enter”; 

(3) that insufficient consideration was given to his mitigating factors as raised. 

On the first ground, I am not satisfied that the sentence of 22 months imposed was excessive in any way. The offence of ‘break and enter’ contrary to section 293(a) of the Penal Code, carries a maximum penalty of 14 years imprisonment. That without doubt is a serious offence, and the courts have continually made clear that even first offenders convicted under such offence, must expect to go to prison. Custodial sentences for first offenders (class in which this prisoner falls under) range from around 9 months in some cases to 24 months. Bearing in mind the “criminal climate” of the times, and the statistical figures sought to be released by the Police on a regular basis, and the stance taken by those involved directly in dealing with such activities, the sentence imposed by the learned Chief Magistrate cannot by any standard be regarded as excessive. One of the factors which he took into account for imposing sentence was the element of deterrence. That in no way was excessive and I see no reason to intervene. 

The third ground relied on (I will deal with the second ground last), pertains to the mitigating factors raised before the learned Chief Magistrate. I have considered carefully the matters raised in his letter in support of his appeal, and note that these had already been brought to the attention of the learned Chief Magistrate in his mitigation. I do not need to repeat all that has been said. These were read out in Court by Mr. Talasasa and are contained in the transcript of record of proceedings made available to this Court. 

In passing sentence, the learned Chief Magistrate at page 2, made mention of all those mitigating factors and after taking those factors into account, imposed the sentence of 22 months. The issue raised on appeal by this Appellant, was whether those factors were adequately taken into account by the learned Magistrate. In my respectful view, nothing could be further from the truth. He carefully applied his mind to the mitigating factors raised, the personal circumstances of this Appellant, before imposing sentence. I am not satisfied inadequate attention was given to the matters raised in allocatus by the Appellant. The Social Welfare report with respect does not alter this fact. 

Finally, what in my view is of some substance in this appeal. The Appellant submits that his level of involvement (culpability) in the commission of the offence was distinctively lower than that of the co-accuseds. Indirectly, what he was saying and I take this to be the point he wishes to raise on appeal was that this fact was not considered by the learned Chief Magistrate in passing sentence, or that even if he did, insufficient consideration was given. I understand his submission as not denying his culpability in the commission of the offence. He in my respectful view accepts that he is as guilty as the other two for the offence charged and so the provisions of section 21 of the Penal Code are not relevant. He does not take issue with his conviction. He accepts that. He accepts his part in providing transport, but seeks to submit that because he was involved only to that extent some sort of consideration should have been given for that fact. 

This in a way ties in the submissions of Mr. Talasasa on disparity of sentences. Mr. Talasasa has brought to the attention of this Court the case of Regina v Alulu & Others CRC 147/91, review judgment of this court dated 13th April, 1992, in which his Lordship, Muria ACJ (as he then was), states that: “...for the disparity to be objectionable it must show that one of the two or more defendants receives a more severe sentence than the other and that the difference is not justified by any relevant distinction in their culpability or personal circumstances.” (Applied in R v Church 1985 7 Cr. App. R. 370). 

The disparity of sentence in the case of these three accused in my respectful view cannot be said to be objectionable. The reasons given in my respectful view correctly reflect appropriate principles of sentencing which can be applied by the Court bearing in mind the level of culpability of the accuseds and their personal circumstances. Whether the learned Chief Magistrate did take into account the level of involvement of this accused or not, no mention is made and so the benefit must go in favour of this accused. 

I accept that some credit can be given for the level, of participation of this accused which can be reflected in the sentence imposed without detracting from the acceptable range of sentence. In so saying, I do bear in mind that providing transport in such situations can at times be quite crucial and so it would not be correct to generalise the view taken in this case by this court. Needless to say, I do find that in the peculiar circumstances of this case, the level of participation of this accused does turn the wheel one notch in his favour. Taking everything into account, I am satisfied that this is a case where part of the sentence imposed can be suspended. 

The result therefore is that whilst the appeal on sentence has not been successful, this Court does find that the circumstances do warrant partial suspension of the 22 months imposed. 

ORDERS OF THE COURT:

1. Appeal dismissed. 

2. Order that part of custodial sentence of 22 months imposed to be suspended as follows: 

(1) Suspend 6 months for 1 year; 

(2) To serve only 16 months. (Period spent in custody to be taken into account). 

ALBERT R. PALMER
THE COURT.