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Nadu v Regina [2007] SBHC 156; HCSI-CRC 347 of 2007 (9 November 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No 347 of 2007

WILLIE NADU

-v-

REGINA

(Naqiolevu, J)

Date of Hearing: 2nd November 2007
Date of Ruling: 9th November 2007

For Applicant: Mr A. Mane
For Respondent: Mr M. Unagui

RULING

Naqiolevu J:

1. The appellant was convicted on his plea of guilty to the offence of Wilful and Unlawful Damage contrary to section 326 (1) of the Penal CODE. The Magistrates Court in Tulagi sentenced the appellant to 6 months imprisonment.
   

APPLICANTS SUBMISSION

2. The appellant appeal against the sentence on the ground that the sentence imposed by the Magistrates Court is manifestly excessive and seek an order for the sentence be set aside and substituted with a lesser sentence.

3. Counsel for the appellant submit the maximum penalty for this offence, which is a misdemeanor is 2 years imprisonment.

4. Counsel submit one of the alternative sentence to a custodial sentence could be the use of the provision of section 24 (3) of the Penal CODE which provides that where imprisonment is the maximum specified penalty, the Court may impose a fine instead of imprisonment.

5. Counsel further submit another option available to the Lower Court is the provision of section 44 of the Penal CODE, which provide for sentence of imprisonment of not more than two years to be suspended in appropriate circumstances.

6. Counsel submit the Court should further consider the severity of the punishment and must fit the crime and the circumstances of the offence itself and cited the authority of R-v-Timo ([1]) where Brown J refer to Baner –v-Queen ([2]) where the Court enunciated two determinants of appropriate sentence, 1. the punishment fits the crime, 2. the circumstances of the offence.

7. In this case Counsel claim the main point of appeal is that the sentence of 6 months imprisonment for Malicious Damage is manifestly excessive. This ground points to two things:

(1) the Learned Magistrate applied the wrong principle of sentence in the case, secondly there is disparity between the facts and sentence in light of the circumstances of the case.

8. Counsel claim that the prescribed sentence for the offence is 2 years maximum and customarily the sentence imposed range from 1 to 18 months imprisonment depending on the circumstances, value of damage and whether there was pre meditation. The circumstances of the case will be determined on its own merit based on evidence and the aggravating and mitigating factors and whether the Learned Magistrate fully consider them before arriving at the sentence.
   
9. The nature and the seriousness of the offence is determined by the circumstances, the cost of damage to the property and the appropriate action itself while ill conceived and impetuous was not especially serious. The appellant hit the handset against the wall one time and it broke. He realized quickly what he had done and co-operated with the police and throughout the court process. The damage was not done in a way that was threatening to people or involving violence that could create fear for people, it was simply damage to property.
   
10. Counsel further submit the circumstances of the appellant are important, he is 24 years old, with a clean record, he had a job working with the Bilasa Security and the eldest of 4 children and the only one employed and supporting the family. It is well established principle of law that guilty plea are evidence of remorse and the appellant has demonstrated this at the outset.
    

CROWN’S SUBMISSION

11. The crown in response to the appellant’s application submit the Learned Magistrate had before him mitigating factors in favour of the appellant.
    
12. The Learned Magistrate did not err and he imposed a sentence which is within his discretion.
    
13. The crown submit the application should fall in the circumstances.
    

Offence of Wilful and Unlawful Damage

Misdemeanor

14. The offence of Wilful and Unlawful Damage is considered a misdemeanor under the provision of Section 326 (1) of the Penal CODE and imposes a maximum sentence of two years.
    
15. The Learned Magistrate in imposing a sentence of 6 months for a first offender, who pleaded guilty to the offence at the first instance, may have applied the wrong sentencing principles. (1) "The issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity."
    
16. Clearly the Learned Magistrate considered the aggravating factors to be important, and deterrence as of significant importance.
    

17. I am of the opinion that the Learned Magistrate not only considered the offence to be serious but placed too much emphasis to the damage which he said caused inconvenience to the public. The Learned Magistrate clearly failed to give proper weight to the personal circumstances of the appellant.

18. Courts in this jurisdiction and indeed other jurisdiction have time and again emphasise the importance of considering personal circumstances of a young first offender and weigh this with the deterrent effect of the offence. ([3]) In Cameron-v-Queen Guadron, Gunnow and Callinana, said (at page 346) "In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending."

19. The applicant is a young man who has a clean record, he pleaded guilty at the first instance and he co-operated with police. This overwhelming circumstance should have enabled the Magistrate to consider a non custodial sentence and one within the range of sentences imposed by the Courts in this jurisdiction. ([4]) In R-v-Mills Batt J stated "The issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of Justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity."

20. Courts in this jurisdiction and indeed other jurisdiction have said time and again "the importance of considering the personal circumstances of a young first offender" and weigh this with the deterrent effect of the sentence. In R-v-Mills ([5]) Batt J stated "The issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the firs reasonable opportunity".

21. I am of the view that the Magistrate has applied the wrong principle in considering deterrence as of more significant, without taking into consideration the overwhelming mitigating circumstances in favour of the applicant.
    

22. In the circumstances I allow the appeal and quash the sentence of 6 months custodial sentence and order the sentence to be six months imprisonment suspended for twelve months.

ORDER

1. Appeal allowed.
2. Quash the sentence of 6 months imprisonment.
3. Order the sentence of 6 months imprisonment suspended to 12 months.
4. Order the appellant be released at the rising of this Court.

THE COURT

^[1] Criminal Appeal No. 124 of 05
^[2] (1988) 166 CLR, 51
^[3]
[4]
[5] [1998] VR 235