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Boinago v Reginam [2008] SBHC 31; HCSI-CRC 80 of 2008 (23 May 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 80 of 2008

LUKE BOINAGO

V.

REGINAM

High Court of Solomon Islands
(Palmer CJ.)

Criminal Case No. 80 of 2008

Date of Hearing: 16th May 2008
Date of Judgment: 23rd May 2008

L. Paulsen for the Appellant
R. Christensen for the Respondent.

Palmer CJ.:

1. Luke Boinago ("Boinago") was convicted of the offence of receiving on a guilty plea and sentenced to imprisonment for 18 months on 13th March 2008.
   
2. He appeals against sentence on the ground that the sentence of 18 months was manifestly excessive. His counsel, Ms. Paulsen argues that the presiding Magistrate, failed to give adequate weight to a number of factors when passing sentence. These included the following matters:
   
   • (i) That no or inadequate weight was given to his guilty plea.
     
   • (ii) That his bank accounts had been frozen in the process and some recovery made of some money. Ms. Paulsen argues that this was a one of mistake and there is high probability that it will not be repeated.
     
   • (iii) That he lost his employment as a result and therefore this was a form of punishment in itself. His prospects of future employment has been greatly reduced and will continue to affect him. He now loses out on a steady income and his family have been affected by it.
     
   • (iv) That his personal circumstances were exceptional and that a suspended sentence would have been more relevant in the circumstances. He had lost much apart from being named in the paper and so the likelihood of re-offending is very small.
     
   • (v) That the presiding Magistrate failed to consider the fact that a suspended imprisonment still operates as a general deterrent. Ms. Paulsen submits that in the circumstances a suspended sentence would have been adequate punishment for the appellant.
     
3. Ms. Christensen for the Crown submits that no error has been committed by the presiding Magistrate in the sentencing exercise and therefore the court should not intervene.
   
4. A number of case authorities have been cited by both parties in support of their submissions. The first one referred to was Regina v. Ofai [1990] SBHC 49 in which five defendants who had entered not guilty pleas were convicted on single counts of receiving. The sentences in that case ranged from six months to nine months. There were a group of persons involved and the offences covered a series of transactions. That case however can be distinguished on its facts. The subject of the transactions, were items of property stolen from Solomon Taiyo Ltd and resold cheaply to these defendants. In this case the amount of the money received was not only high but when considered in the light of the whole transaction which had occurred it entailed the cashing of a Government cheque for a very large sum of money, $560,000.00, which the appellant knew had been forged. There were also others involved and he was a crucial link in the jigsaw puzzle.
   
5. The second case cited was Foli v. R [2004] SBHC 34. This case similar in one sense as it involved also a bank teller who was convicted of a single count of fraudulent conversion. The court reduced the sentence of 12 months to six months with three months suspended for one year. That case however is easily distinguishable on the ground of excessive and undue delay. The defendant had admitted the offence from the outset in August 1998 but it was not until February 2004 when he was arraigned and convicted.
   
6. The third case, Fiuadi v. R [1989] SBHC 17 involved a charge of larceny by a servant. The appellant had climbed onto the roof of the Marine Office and was in the process of removing the solar panel when he was caught. The panel was recovered and he was sentenced to nine months imprisonment. On appeal the sentence was upheld. The court held that being in a position of trust his actions warranted a deterrent sentence. The facts in this case can be distinguished from that case. This crime was discovered only during a reconciliation of payments at the Framework and Reporting Division of the Department of Finance that there was a discrepancy in the records and the particular payment could not be reconciled as there were no supporting records. On receipt of the money he deposited the sum of $25,000.00 into his own account and made a number of loans to people from this money. He had therefore begun to use it for his own purposes despite knowing very well that it was stolen money. He went on to lie about it when he told one of the persons he lent money to that the money came from the sale of beche-de-mer.
   
7. The fourth case referred to was the case of Inifiri v. R [2005] SBHC 55 in which the sentence of two and a half years imprisonment was reduced to two years with nineteen months suspended for one year on a charge of simple larceny. The appellant was a customs officer who had served Customs Division for some twenty years. In his judgement, the learned Judge, Kabui J. reduced the sentence as he formed the view that other mitigating factors had not been properly taken into account. He noted that there was another person involved but had not been charged and that there was no indication to show that the appellant was the ring leader in the scheme.
   

While there are similarities to some extent, the facts and the charge in this case are distinguishable. The whole transaction could not have been successful without the involvement and participation of the appellant. He had used his position of trust in the bank to enable the cheque to be cashed, knowing that it was a worthless cheque. Without his involvement it seems the cheque could not have been cashed. That is a very serious matter bearing in mind the substantial sum involved. An immediate and sufficiently substantial custodial sentence is inevitable in those circumstances to mark the gravity of such an offence.

8. In her submissions in response, Ms. Christensen pointed out that this court should not interfere with the sentence unless it is shown that an error in the sentencing exercise had been committed by the learned Magistrate. What this means is that the appellant has to show that the sentence is manifestly excessive or manifestly inadequate, either because the judge has acted on wrong principle, or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence[1].
   
9. In Rocky Fuilorentino v. Reginam[2] this court pointed out that if the presiding magistrate acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substituting the appropriate sentence[3]. So unless the appellant can demonstrate that an error had been committed in the sentencing discretion of the court below, this court should not intervene. It is for the appellant to show that the sentence of eighteen months imposed in this case in its totality was unreasonable or plainly unjust.
   
10. I am not satisfied the guilty plea entered had not been adequately taken into account by the learned Magistrate. He expressly pointed out in his opening sentence that the appellant had entered a guilty plea to the charge of receiving. To that extent it can be presumed that he must have had this at the back of his mind throughout although it was not expressly stated in his sentence that he took this fact into account. In such a busy jurisdiction, a magistrate cannot be expected to put down everything in writing. The acid test is whether it can be shown that a sentence of eighteen months passed in this instance, when compared to the cases referred to and the facts in this case, was within the range for receiving offences on a guilty plea. In that light, I am not satisfied it has been shown by the appellant that such a sentence was unreasonable or plainly unjust.
    
11. I am also not satisfied it had been shown that the learned Magistrate did not take into adequate account the fact that this may have been a mistake and that there is little likelihood of re-offending. The learned Magistrate expressly made mention of this fact when he said:
    

"She submitted that the experience of having been detected and exposed for committing this crime had been a severe and shaming lesson to him. In these circumstances he was unlikely to re-offend."

12. I am not satisfied he did not give adequate weight to the fact that the appellant had lost his job and that his incarceration had affected his family. The learned Magistrate expressly took into account the fact that he was married with a three year old adopted son. That he had spent 12 days in custody on remand after his arrest. That he had an impeccable character, an excellent record with the bank for 9 years and his involvement in his local church. He took into account the severe and shaming lesson this has left him and that he will most likely never re-offend again.
    

Any sentence of imprisonment is bound to affect his family and that he should have thought of them before committing the offence, not after. Any sentence of imprisonment is also bound to affect future prospects of employment, that he may never be able to secure similar employment in the future. But that again is to be expected.

13. I am satisfied the learned Magistrate took into adequate account the fact he had been openly shamed by having his name printed in the paper. That today is common news item in our daily newspaper and is to be expected. He is not the only one who has been named and shamed through that process. The learned Magistrate however clearly took that fact into account when passing sentence.
    
14. I am satisfied the learned Magistrate also took careful account of the question whether a suspended sentence would have been appropriate in the circumstances. He cited the case of Edward Fiuadi[4] in which Ward CJ had pointed out that only in most exceptional circumstances will terms of imprisonment for offences of dishonesty by employees be suspended. Also in cases of serious breaches of trust hardly will a sentence be suspended. The learned Magistrate found no such exceptional circumstances in this case and it has not been shown to me either on appeal.
    
15. Persons who occupy positions of trust such as a bank employee and has used that privileged and trusted position to take money from his employer or the general public must expect an immediate custodial sentence, save in very exceptional circumstances or where the amount is small. The same approach applies to the question whether such a sentence should be suspended or not.
    
16. I am not satisfied accordingly it has been shown that any error was committed by the learned Magistrate in the sentencing exercise below and this appeal therefore must be dismissed.
    

Orders of the Court:

Appeal dismissed.

The Court.

^[1] See Kaimanisi v. Reginam [1996] SBCA 2; Saukoroa v. R (1983) SILR 275 and Berekame v. DPP (1985/1986) SILR 272; followed in Rocky Fuilorentino v. R. CRC 87/2008, 24^th April 2008.
^[2] CRC 87/2008, 24^th April 2008.
^[3] House v. The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ (at 505).
^[4] [1988/1989] SILR 150, 152