HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 489 of 2006

BETWEEN:

Ronald Fugui Ladoa
Appellant

AND:

Regina
Respondent

Date of Hearing: 26 April 2007
Date of Judgment: 2 May 2007

Mr Barklay for the Appellant
Ms Ruschena for the Crown

JUDGMENT

Cameron PJ

Introduction

1	This is an appeal against a sentence of three and a half years imprisonment for a series of thefts and wilful damage occurring over a period of about 13 months. Sentencing took place in the Magistrates’ Court on 29 September 2006

2	
Almost all the offending related to the appellant forcibly breaking into motor vehicles (wilful damage) and then stealing their contents, such as car stereos. The offending took place at night during a 13 month period from 8 February 2004 until 31 March 2005, and involved the loss or damage to property of about $27,100.00. None of the property was recovered.

Commencement Date of Sentence

3	
The Magistrate sentenced the appellant on each of 16 charges, making some of the sentences consecutive to each other and others concurrent.

4	
The result was a total sentence of imprisonment of three and a half years.

5	
Then, in a "Bench Sheet" which accompanied the warrants of commitment for the sentences of imprisonment, the magistrate summed the matter up as follows:

"Total period 3½ years.

Less 20 months spent in custody which [sic] awaiting completion of these cases.

Total period to be served 22 months in hard labour".

6	
The "Bench Sheet" was clearly part of the sentencing decision, it being the only place where one finds reference to whether each of the sentences was consecutive or concurrent to others. It is dated the same day as the written reasons and has been initialled by the magistrate.

7	
In outlining the sentence in this way, the magistrate was clearly intending to give full recognition to the fact that the appellant by the date of sentencing had already spent a number of months in custody on these matters. This is apparent from his words "Less 20 months spent in custody".

8	
The approach the magistrate took to recognise this was simply to deduct from the total sentence of 42 months imprisonment the time which had lapsed since the appellant was first taken into custody, namely 20 months, and then simply to order that the balance of the term of 22 months "be served" from the date of sentencing.

9	
An alternative approach would have been to deem the sentence to have commenced from any earlier date (no doubt that coinciding with the accused being taken into custody). Such ‘backdating’ of a sentence is not precluded by the wording of s.24 of the Penal Code, which provides for a sentence of imprisonment to be deemed to have commenced on the date it was pronounced except when "otherwise ordered by the court".

10	
The deduction approach adopted by the magistrate overlooks the effects of the prison regulations, which provide that for this type of sentence prisoners may be eligible for remission of one-third of their sentences (regulation 114(1) Prison regulations) after serving the first two-thirds.

11	
When the practical effect of the two sentencing approaches is compared, it can be seen that different results arise in terms of when prisoners would first become eligible for remission of their sentences. On the ‘backdating’ approach, had the sentence of 42 months been deemed to have commenced from say 7 May 2005 (when the appellant was taken into custody for a second time in relation to the offending), then the appellant would have been eligible for remission of the balance of his sentence after 28 months, namely, 7 September 2007. By that time he would have served two-thirds of his sentence.

12	
By comparison, on the ‘deduction’ approach, by ordering the appellant to serve a balance of 22 months of a 42 month sentence from 29 September 2006 (the date of sentencing), the appellant would not have served two-thirds of his sentence and thus become eligible for remission of the remaining one-third until a date in December 2007.

13	
While it was within the power of the magistrate to deduct the time spent in custody from the sentence and to order the appellant to serve the balance of the term in prison, it is clear from his notes that in this case he intended that the sentence have retrospective effect to coincide with the date the appellant was taken into custody. This is clear from the fact that the sentence was first fixed at three and a half years imprisonment, then a deduction made for time spent in custody, and finally a net balance was ordered to be served.

14	
As has been demonstrated, the practical effect of the two approaches is different when one comes to assess eligibility for remission of sentence, a point overlooked by the magistrate.

15	
Because the method used by the magistrate did not give effect to his obvious intention, there has been a sentencing error which needs correction.

Consecutive versus Concurrent Terms

16	
The appellant’s counsel also argues that the magistrate erred in not ordering concurrent sentences of imprisonment for the offending which occurred on 8 February 2004.

17	
This offending involved the appellant damaging a Pajero motor vehicle in the course of breaking into it, and then stealing from the vehicle its stereo system and some tools.

18	
The magistrate sentenced the appellant to 6 months imprisonment for the wilful damage, and then one year’s imprisonment for the thefts which followed. He made those terms consecutive on each other.

19	
It was argued that while two offences have been committed, both relate to the same criminality, namely breaking into a vehicle in order to steal from it, and therefore the terms should have been concurrent. I agree. Had the damage been caused other than to facilitate the theft, for example for purely malicious reasons, then there would have been justification for treating the two offences separately when sentencing, and thus making the term consecutive. This is not the case here, where the sentence for the thefts ought to reflect the fact that the vehicle was broken into to facilitate that crime.

20	
I accept that the magistrate was in error in not making those two sentences concurrent. Considered in isolation, the effect of this error was to increase the overall sentence of imprisonment by 6 months.

Hard Labour

21	
The magistrate ordered the sentence of 24 months be carried out "in hard labour".

22	
By s.24(1) of the Penal Code, all sentences of imprisonment are to be "without hard labour".

23	
Clearly the magistrate was in error in this regard.

Re-sentencing

24	
Because of the errors as identified, I intend to quash the sentence and to re-sentence the appellant. For this reason it is not necessary for me to consider any other grounds of appeal.

25	
Taking all matters into account, including material which suggests that the appellant may have turned the corner and not re-offend in the future, I substitute a sentence of 3 years imprisonment, effective from 7 May 2005. The 3 year sentence is made up by the various terms of imprisonment attached, which attachment follows the same format as that adopted by the magistrate and forms part of this decision.

BY THE COURT