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Gamana v Regina [2005] SBHC 85; HCSI-CRC 078 of 2005 (20 July 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal (Appeal) Case Number 78-05

ARMSTRONG GAMANA

-v-

REGINA

Date of Hearing: 12^th July 2005
Date of Judgment: 20^th July 2005

C. Baker for the Appellant
P. Bannister for the Respondent

PALMER CJ.: The Appellant Armstrong Gamana, had been charged with a total of three counts, being:

- count 1: threatening violence with firearms contrary to section 42 of the Firearms and Ammunition Act ("the Firearms Act"),

- count 2: being in possession of a firearm without holding a firearm licence in force at the time contrary to section 5(2)(a) of the Firearms Act, and

- count 3: going armed in public contrary to section 83 of the Penal Code.

He made his first appearance before the Western District Magistrates Court on 23^rd January 2005 when a plea of not guilty was entered on all the charges. He was remanded in custody to 26^th January 2005 when he made his second appearance before the court. He indicated to the court that he wished to change his pleas and was re-arraigned. He entered guilty pleas on all three counts it seems. The records of transcripts did not set this out but it would seem that the sentence passed on the next day 27^th January 2005 was done on that basis. It is important that records of the pleas entered is taken in writing to avoid any confusion or misunderstanding. Fortunately in this case, there is no misunderstanding regarding the pleas entered by the Appellant.

When imposing sentence, the learned Magistrate took into account his guilty plea, that he had no previous convictions and the public interest and imposed a deterrent sentence of two years. It is not clear from the records if the learned Magistrate had intended to impose sentences of two years for each count and made them to run concurrent or whether it was an omission on his part in not taking such fact into account. It is important however that when imposing sentence for a number of counts, that the presiding magistrate should consider first what the correct sentence for each count should be before looking at the totality of the sentence and deciding whether to make them to run concurrent or consecutive to each other. The general rule on this has been well stated by Ward CJ in Stanley Bade v. Reginam¹ that separate and consecutive sentences should be passed for separate offences. There are two situations where this rule may be modified. The first is where a number of offences arise out of the same single transaction and cause harm to the same person. In such situations the sentences should be made concurrent. The second situation is where the aggregate sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case. His Lordship Ward CJ said: "Thus, once the court has decided what is the appropriate sentence for each offence, it should stand back and look at the total. If that is substantially over the normal level of sentence appropriate to the most serious offence for which accused is being sentenced, the total should be reduced to a level that is "just and appropriate" to use the test suggested in Smith v. R. [1972] Crim. L.R. 124."²

In this instance, the offences arose from a single transaction and accordingly it would have been most appropriate to consider having all the sentences to run concurrent to each other.

The maximum sentence for threatening violence with a firearm is a fine of $1000 or imprisonment of two years; for possession of firearms without a licence, $5,000 or ten years imprisonment if committed in a prohibited area and $3,000 or five years imprisonment if committed elsewhere; and for going armed in public, two years.

The main ground of appeal relied on is that the sentence imposed was manifestly excessive in all the circumstances of the case. Mr. Bannister for the Crown does not take issue with this submission. Learned Counsel Mr. Bannister has been quite helpful in providing a number of cases which demonstrate that the sentence imposed in this case was indeed too heavy. The first case referred to was Regina v. Victor Tadakusu³ in which the defendant was sentenced inter alia, to two years each on two counts of being in possession of a firearm and ammunition contrary to section 5(2)(a) of the Firearms Act. The circumstances in which the offences were committed were extremely serious as they related to the beginnings of the armed upheavals and uprising of the unlawful societies on Guadalcanal led by the notorious Harold Keke and Joseph Sangu. The defendant in that case had been imposed a total of 7 years for robbery of which those sentences were made to run concurrent. In Regina v. Daniel Upang and Simister Kimisi and Regina v. Cherry Bula⁴ sentences imposed for possession of firearms and ammunition without licences, which involved the possession of revolvers brought into the country by some Bougainvilleans, sentences imposed ranged from 6 months to 3 months.

In this case, the facts revealed that the offences arose out of an argument over rights to cut down a coconut tree which the complainant had intended to cut down to clear and make way for work on some old grave sites. In his submissions before this court, Mr. Baker for the Appellant pointed out that the land on which the old grave sites were located had been registered in the name of the Appellant’s father and title transferred to his brother. It is also not disputed it seems that the Appellant concedes that the grave sites belonged to the complainant though. The offences arose from the refusal of the Appellant to allow the complainant and his group to cut down the coconut tree standing near those grave sites. The argument turned physical when the Appellant and his brothers were physically attacked by the complainant and his group. The facts read out actually stated this as follows:

"When the matter came to the aware of the three accused’s they did not allow the workers to cut down the tree and stand by the tree. Same time some of the workers approached them and argue with them and then grabbed them out." [emphasis added]

In his submissions on appeal, learned Counsel Mr. Baker pointed out that the Appellant and his brothers were actually attacked and one of them knocked down by the complainant and his group. It was at this point of time that the Appellant ran off, took a home-made gun from his cousin returned and threatened the complainant with it. Mr. Baker points out that the home-made gun had no ammunition and did not work either and so was virtually useless in any event as a firearm. The sight of that home-made gun however was sufficient to terrify and send the complainant and his group scattering. It also needs to be pointed out that some of these important facts were not made known to the presiding Magistrate when the matter came before him, the Appellant being unrepresented. Mr. Baker explains that the Appellant did not reveal these facts in mitigation as his cousin had told him that he would kill him if he said anything about that home-made gun.

I accept submissions of learned Counsel for the Appellant that the sentence imposed was manifestly excessive in all the circumstances of the case and that the appeal should be allowed. It is important to bear in mind that what occurred that day arose from a dispute over rights to fell a coconut tree. The complainants felt they had rights to fell that tree to clear the area for further work progress on some old grave sites whilst the Appellant and his brothers objected to it. The matter could easily have been settled peacefully if the complainant and his group had perhaps approached the Appellant and his brothers amicably and in a peaceful manner. Their title must be respected. I do not think the Appellants would have refused to consider the request of the complainant to cut down the tree if he and his brothers had been approached in a friendly and peaceful manner. It is important to bear in mind as well that the facts do disclose the Appellant and his brothers were physically attacked at some stage before they reacted in this manner. They are entitled to use reasonable force to protect themselves and their property if attacked and harmed, especially in the circumstances where they had title to the land. I accept though that the use of a home-made gun in this instance was not justifiable.

I accept that whilst the sentence of two years was manifestly excessive, some custodial sentence was justifiable in the circumstances where a home-made gun was used. As pointed out by the learned Magistrate, a lot of effort has been put into getting firearms whether manufactured or home-made out from the hands of the people. The use of such weapon showed that there are still others holding onto such weapons and therefore a clear message must be sent out that they must expect some sort of custodial sentence to be imposed.

When the circumstances in which the offences had been committed are taken into account, coupled with his guilty pleas, his age and that he is a first time offender, I accept the sentence imposed was manifestly excessive and that the appeal should be allowed. The order of the learned Magistrate imposing a sentence of 2 years should be quashed and replaced with a sentence of six months on each count to be made concurrent. The Appellant having served the whole sentence is entitled to be released at the rising of the court and I do so order. Also I order that the home-made gun be forfeited to Police and to be destroyed.

ORDERS OF THE COURT:

1. Uphold appeal.

2. Quash order of the Magistrates Court dated 27^th January 2005 imposing a sentence of 2 years imprisonment and substitute sentence of six months on each count to be made concurrent.

3. Order that the home-made gun be forfeited to Police and destroyed.

4. Order that the Appellant be released forthwith at the rising of the Court.

THE COURT.

END NOTES

1. 1988/1989 SILR 121 at page 125
2. (ibid) at 125.
3. HCSI-CRC 239-99 10th November 1999
4. HCSI-CRC 19-91 and 20-91 22nd October 1991