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Regina v Kemakeza [2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 467 of 2007

REGINA

-V-

SIR ALLAN KEMAKEZA

High Court of Solomon Islands
(Palmer CJ.)

Criminal Case Number 467 of 2007

Date of Hearing: 29th August 2008
Date of Judgment: 3rd September 2008

Rachel Olutimayin and Ricky Iomea for the Crown
Billy Titiulu for the Respondent.

Palmer CJ.:

1. The respondent, Sir Allan Kemakeza ("the Respondent") was convicted by the Magistrates Court on three counts; that of demanding with menaces, intimidation and stealing. He appealed against conviction but his appeal was dismissed by this court.
   
2. He was sentenced by the Magistrates Court to imprisonment on each count for five months to be served concurrently and a fine of $2,500.00 on each count to be paid within three months failing which he would be sentenced to three months imprisonment. Three of the five months were suspended for twelve months.
   
3. The Crown appeals against sentence on the ground that it is manifestly inadequate. Three reasons are given. First, that the learned Magistrate failed to take into account the seriousness of the offences; secondly, that he applied inappropriate sentencing principles; and thirdly, he failed to apply the principle of disparity when passing sentence.
   
4. On the issue of failure to take into account the seriousness of the offences, Ms. Olutimayin submits that the learned Magistrate failed to take into adequate consideration the following aggravating factors:
   
   • (i) his standing in society when he procured others to commit the offences;
   • (ii) that he was the Prime Minister of the country at the time;
   • (iii) that he had taken an oath to defend the country and her people;
   • (iv) the attack was aimed at a legitimate law firm operating in the country; and
   • (v) making use of militants (members of the Malaita Eagles Force) at a time when the country was still under the control of militants to carry out offending. Ms. Olutimayin submits this was the most aggravating factor of the offending.
     

She submits the Respondent’s role in the offending cannot be overlooked. If he had not counseled and procured the principal offenders the offences would not have been committed.

4.1 Ms. Olutimayin submits that the normal tariff for those offences were:

• (i) For the offence of demanding property with menaces, 8 months – 3 years imprisonment;
• (ii) for intimidation, 6 months – 2 years; and
• (iii) for simple larceny, 6 months – 9 months.
  

She submits that the sentences imposed fell below the usual tariffs for these type of offences and therefore were manifestly lenient.

5. On the issue of applying inappropriate sentencing principles, she submits that the learned Magistrate erred in law when he failed to take into adequate account the requirements of section 21 of the Penal Code, which provides that the liability of a counselor or procurer is identical to the principal offender and liable to the same punishment.
   
   • 5.1 Ms. Olutimayin submits that there are no relevant distinctions in the culpability of the Respondent from the other four principal offenders apart from their personal circumstances and that the learned Magistrate erred when he overemphasized the Respondent’s mitigating factors. These included giving too much consideration to the personal circumstances of the respondent, that is, his contribution to the country, and did not balance that adequately with the seriousness of the offence.
     
   • 5.2 She also submits that the learned Magistrate erred in law when he failed to give adequate consideration to the interests of the community to show the community’s disapproval of the Respondent’s conduct.
     
6. On the issue of disparity, she submits that the learned Magistrate erred in law when he failed to ensure that there is no unjustifiable disparity in the sentence imposed on joint or like offenders. She points out that the four principal offenders were each sentenced to 30 months and 25 months respectively for the offences of demanding and simple larceny, and that their personal differences did not justify such a wide disparity in sentences. In Regina v. Chris Mae and Moses Su’u[1] and Regina v.Benedict Indu and James Tatau[2] each received sentences of 30 months and 25 months on their guilty pleas. In Moses Su’u’s case[3], the case against him was that he was not physically involved in the actual commission of the offences but because he was the one who told the others to go to the Sol-Law offices and commit the offences he was punished in exactly the same way as if he had physically taken part in the actual offending. The case against the Respondent was that Moses Su’u and the other three defendants were merely carrying out the instructions received from the Respondent.
   
   • 6.1 Ms. Olutimayin submits that the plain reading of section 21 requires that the Respondent receives the same penalty imposed on others and be treated in like manner and apportioned a similar sentence.
     
   • 6.2 She points out that the Respondent had pleaded not guilty in this case and so if anyone should have been given considerable credit it should have been the principal offenders for their guilty pleas. She says that the learned Magistrate failed to take into proper account the sentences imposed on the other offenders in arriving at an appropriate sentence for the Respondent. Had he taken those other sentences into account, he would have synchronized them together. The result of this failure meant that a sentencing regime has been perpetrated in which those who should have received much credit for their guilty pleas received a much severe sentence than their counterpart who did not plead guilty.
     
   • 6.3 Ms. Olutimayin points out that the sentencing principle that a sentencer must balance the seriousness of the offence with the personal and mitigating factors of the offender to arrive at a just sentence had been breached or overlooked and thereby the learned Magistrate had erred.
     
   • 6.4 On the issue of the Respondent’s long history of service to the country and good testimonials received, she says that these must be balanced with the other equally important and relevant factors in this case. By failing to do that, the learned Magistrate erred.
     
7. She also pointed out that some of the factors highlighted as mitigating factors can equally be regarded as aggravating factors. For instance, committing a serious offence while holding one of the two highest positions in the country is in itself an aggravating factor that should have been taken into account. By failing to take that into account the learned Magistrate also erred.
   

Submissions of Respondent

8. In his response, Mr. Titiulu denies that any error of law was committed by the learned Magistrate. He says that the learned Magistrate gave careful consideration to all the material before him and was careful not to let any one issue dominate at the expense of another.
   
9. He submitted there were distinctions which justified the difference in the sentences imposed against the Respondent.
   
10. In the first instance, he points out that in the Respondent’s case, a victim had come forward to speak in his support, whilst in the other offenders’ case no one came forward. This was referred to by the learned Magistrate in his sentence.
    
11. Secondly, he refers to the number of character references that were filed in support of the Respondent. He says none of the others had anyone speaking anything good or providing character reference for them.
    
12. Thirdly, the imposition of a fine was an additional sentence while the others did not receive any additional fines apart from their lengthy prison sentences.
    
13. On the requirements placed on the Respondent as a leader, he says the same requirements are placed also on everyone else. The Respondent therefore should not be singled out.
    
14. Mr. Titiulu reiterated the contributions which the Respondent made in his capacity as a Prime Minister in enabling the Regional Assistance Mission to Solomon Islands ("RAMSI") to come into the country to restore law and order. He submits this sets him apart from the others.
    
15. He also submits that as a leader the fact of having been convicted alone is a punishment in itself.
    
16. On the issue of a not guilty plea he submits he should not receive a higher penalty for this.
    
17. Mr. Titiulu says that because of his mitigating factors the court should not only not increase the sentences imposed but to consider suspending all of the prison sentences imposed.
    
18. In his final submission Mr. Titiulu referred to the risk of safety of the Respondent if sent to prison.
    

1. Failure to take into account the seriousness of the offences committed.

19. The level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty. The more serious an offence the greater the maximum penalty imposed. For instance, the offence of murder is regarded as a very serious offence and so carries a penalty of mandatory life imprisonment on conviction. In this case, the maximum penalty imposed by law for demanding property with menaces is five years imprisonment; for intimidation, three years, and for simple larceny, five years.
    
20. The seriousness of an offence is also perceived by the sentences imposed by the courts by way of a range of sentences in similar cases, as well as the aggravating and mitigating features of the case, and circumstances of offending. The range of sentences, if it exists, is a very useful guideline for the courts to take cognizance of, in the sentencing process. This is vital for purposes of maintaining parity, consistency and fairness. In similar fact cases, sentences imposed should be similar, unless there are exceptional reasons for differing. Where the court does decide to differ from the normal range of sentences, it must give reasons for doing so. Of-course, each case is different and must always be determined on its own merits and so there will always be differences in the sentences imposed by the courts.
    

In Regina v. Kada and Others[4], the Court of Appeal made the following relevant statement:

" There is no doubt that sentencing offenders is a difficult task. It is important that, whilst acknowledging the independent discretion that must be exercised by each judge (or magistrate) in each case, the courts must strive for coherence and similarity of outcome in similar cases. Due allowance must be made for differences, both in objective circumstances and subjective features. At the same time, each judge or magistrate needs to consider what their judicial colleagues have done in other cases with a view to attempting to achieve a collegiate and coherent system of sentencing. Otherwise, the goal of equal justice will be frustrated and the administration of criminal justice tarnished by the perception that it represents the purely personal opinions of individual judges and magistrates and offenders whose offences are similar and personal situations much the same will suffer sentences that differ for no apparent rational cause, whilst similar sentences may be imposed where offences vary significantly in gravity and subjective features are very different. Of course, uniformity is not the goal: the circumstances of particular offences more often than not will vary greatly, as will subjective factors. The object is to achieve a coherent system of sentencing in so far as that can be achieved, whilst recognising and respecting the obligation of each judicial officer to exercise his or her independent discretion and judgment. Accordingly, it is not only proper but desirable that judges and magistrates should be informed of sentences that have been imposed by their colleagues and bear those outcomes in mind in considering his or her particular case. Over time, a pattern will emerge as the number of cases increases and, hopefully, a range of sentences can be discerned. The presence of the pattern and demonstration of a range obviously requires more than just a few cases, although it is of course inevitable that, towards the beginning of this process, the number of cases will be small."

21. In this case, apart from other cases which this court and the court below have dealt with, the most relevant cases for the learned Magistrate to consider were those of the principal offenders and the sentences imposed by this court. It must be noted that sentences for similar offences[5] that have been imposed by the courts in this country include fines, suspended sentences and short imprisonment sentences, depending on the factual circumstances and merits of each case.
    
22. The offence of demanding with menaces for instance, whether it involved money or property is a common offence in Solomon Islands. There are many examples or instances in which the courts in this country have had to deal with this type of offence even well before the ethnic tensions. The prevalence of this type of offence is partly due to the direct connections to customary practices of the people in this country. Long before the concept of the rule of written and statute law was introduced into this country, this was how people sometimes resolved their disputes or grievances. They would make demands with threats to kill, do harm or damage. The courts in this country therefore have taken a firm stand on this type of offence to show the community’s disapproval to this practice, and in many instances, the courts have not hesitated to impose an immediate custodial sentence where justified. This is reflected in the many immediate custodial sentences that have been imposed and in some instances, quite lengthy prison sentences as well. The principle of deterrence therefore played a major influence for this type of offence.
    

2. Applying inappropriate sentencing principles.

23. Section 21 of the Penal Code provides that a conviction for counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. A person convicted of counseling or procuring therefore is liable to the same punishment. Any court therefore, whether the Magistrates Court or the High Court, are bound to ensure that the provisions of these laws are followed. Where the court diverts, clear reasons must be given.
    
    • 23.1. One of the important roles of the courts in imposing sentences between co-defendants, or persons charged conjointly is to ensure that whatever sentences imposed are consistent, fair, uniform and just in all the circumstances of the case. Had the Respondent been charged at the same time with the other four defendants, most likely he would have been tried and dealt with together with them. Normally this is the case where an accused has been charged for counseling and procuring. He would have been arraigned in the same way and at the same time as the other accuseds unless he had asked for a separate trial. But the fact that has not happened in this case does not mean a court should go off on a tangent and impose a sentence that is wholly inappropriate. In such a case, the court must appraise itself properly of the way in which the other defendants have been dealt with so that an appropriate sentence is imposed; in other words so that any disparity of sentences are avoided.
      
    • 23.2. On the question of distinction between a counselor and procurer or accessory and a principal, the learned Authors in Blackstone’s Criminal Practice 1992, at page 63 pointed out that in many cases this is of little importance. On the question of liability, they say the accessory’s liability is identical with that of the principal. The learned Authors in Archbold[6] also express the same view in terms of liability of a counselor and procurer.
      

3. Disparity in sentences imposed.

24. That there is a difference in the sentences imposed cannot be denied. The principal offenders in this case each received 30 months for demanding with menaces and 25 months for simple larceny, while the Respondent received five months imprisonment with three months suspended and a fine of $2,500.00 on each count.
    
25. The issue for determination before this court is whether this amounted to a disparity in sentence resulting in a manifestly lenient sentence being imposed and warranting the intervention of this court.
    
26. For the disparity to be objectionable it must show that the sentence imposed in this case is less severe than what the others received and that the difference is not justified by any relevant distinction in their culpability or personal circumstances[7].
    
27. On the issue of culpability, I am satisfied this is identical. Without the Respondent’s involvement, the raid would not have been committed. He authorized and directed the raid on the offices of Sol-Law. He was the initiator or one can say, the master mind behind that operation; he was the planner of the operation and the persons who physically carried it out or implemented that plan, Mae, Indu, Tatau and Su’u were merely acting out his mind, intentions or desire. Su’u’s involvement is identical to his for he also was not physically involved in the operation but also involved in counseling and procuring the other three to carry out what the Respondent wanted. Ringleaders, masterminds or planners do not normally receive in the minimum anything less than what principal offenders get. Rather, they should be getting even more severe sentences for the part or role played by them. On this issue of criminality therefore, I am satisfied there is nothing that can be properly held to distinguish between them.
    
    • 27.1. The crucial issue however turns on the question of the personal circumstances of the principal offenders and the Respondent. In terms of any records of previous convictions, I note that the other four principal offenders were all treated as first offenders. Mae and Indu had no previous convictions at the time of sentence; Su’u and Tatau had previous convictions but the court decided to disregard them as old or spent. In the case of Mae and Su’u, the court noted that there was cooperation with police and that they had good previous work records.
      
    • 27.2. In the Respondent’s case, the learned Magistrate took into account his long history of service to the country as a police officer and his involvement in Parliament before the commission of the offences. The learned Magistrate also took into account the character references that were filed in his support in relation to his involvement as the Prime Minister in the signing of the Townsville Peace Accord and in bringing the Regional Assistance Mission to Solomon Islands and the restoration of the rule of law in this nation.
      
    • 27.3. In his submissions, Mr. Titiulu referred to a number of what he considered to be distinguishing factors and which he argues justified the disparity in the sentences imposed by the learned Magistrate. The first one was a reference to a statement made by one of the victims in this case in support of the Respondent. In Solomon Islands context however, this is not unusual for we do have in our law, provisions[8], which encourage reconciliation to take place. There have been many instances where victims have come forward to the courts to say that this and that has taken place and that the parties are now living together harmoniously or reconciled, especially in domestic violence related type offences, but also including cases of affrays, unlawful woundings and even manslaughter cases and murders, where compensation for instance in custom had been paid and the victims or their relatives have asked for the charges to be dropped or withdrawn. Where that occurs, the court must not overlook the value to be attached to such statements, requests or plea. Its relevance lies in the value which the court must carefully balance as a mitigating factor in the case. For the criminal law is about public wrongs, not issues which can be settled privately, and where the wishes of the victim are placed before the court these must not be allowed to override the discharge of the magistrate’s or judge’s duty[9]. The attitude of complainants must not be allowed to govern the approach to be taken in sentencing; they must be weighed carefully against all the circumstances surrounding the commission of the offences.
      
    • 27.4. The second factor Mr. Titiulu sought to highlight were the character references that had been filed in support of the Respondent. The learned Magistrate to that extent was correct in referring to them and highlighting the part the Respondent played as the Prime Minister and leader of the nation in ensuring that the intervention took place, and his actions thereafter. On the other hand, while these were exceptional references, these must not be overstated or overemphasized as they related to events which happened after the commission of the offences. It is important to bear in mind that he had the whole support of Parliament, if not a substantial majority of Parliament behind him, as well as the whole nation, which was fed up with the lawlessness and criminality going on in the country at that time. It was obvious at that time, that the Government had lost control of the power to govern effectively because its enforcement arm (the Police and Prison Services) were tainted and weakened, and could not carry out their duties effectively with the prevalence of guns in the community and in the hands of criminals. It is important to bear in mind that the issue of intervention was not new, it had already been raised with other bodies, including the United Nations, the Commonwealth and other individual countries but it was not until towards the latter part of 2002 and early part of 2003, that the countries comprising the Pacific Islands Forum heeded the cry of the people of Solomon Islands and decided to respond collectively as a regional body to assist Solomon Islands. The part played by the Respondent must be viewed in its proper context.
      
    • 27.5. Character references are relevant in so far as they seek to demonstrate that the actions of an accused were either out of place, or a one off situation and to that extent could not be explained in any rational manner. Secondly, they are relevant in so far as they seek to demonstrate the prospects of rehabilitation or reform of an accused, for instance, that these are good or high, and that the court should take that into account when assessing sentence. Character references however, how good and exceptional they may be, again must be balanced with all other factors. They do not expunge or extinguish the criminality of the offence.
      
    • 27.6. The third reason given relates to the fine of $2,500.00 imposed as an additional punishment. Fines have their rightful place in the punishment regime in this country and ought to be imposed where appropriate, not as an alternative for a custodial sentence when imprisonment is the appropriate sentence to be imposed in all the relevant circumstances of the case.
      
    • 27.7. A basic principle in the imposition of fines is that it should not be levied where the gravity of the offence is such that a custodial sentence is required[10]. The very first task of the learned Magistrate in this case is to decide whether or not he should send the defendant to prison or impose a monetary penalty.
      
28. Apart from his contribution and role as Prime Minister and Member of Parliament after the commission of those offences, the distinctions in personal circumstances were similar.
    

CONCLUSIONS.

29. I am satisfied the learned Magistrate erred in law in imposing a sentence that was manifestly inadequate taking into account the seriousness of the offences committed. While all the good things that the Respondent had done after the commission of these offences cannot be denied, the learned Magistrate erred in overstating and overemphasizing their significance and thereby overlooked or undervalued the objective seriousness of the role and part played by him in the commission of those offences. It wasn’t the case where he was under pressure, duress or compulsion when he counseled or procured the commission of those offences. It wasn’t the case he was being threatened with a gun for instance to commit those offences. A lot of responsibilities are placed on the shoulders of leaders and the public expects much from them, a fortiori, from a leader in his crucial position at that time. Whether in good times or bad times, leaders are expected to uphold the rule of law at all times. There were equally many leaders around at that time who could have bent their knees to the idols of lawlessness, violence and greed that prevailed at that time, but did not. To whom much is given, much is required, to whom men have committed much, of him they will ask the more[11].
    
    • 29.1 The sentences imposed failed by a long way to reflect the seriousness of the range of sentences imposed for this type of offences and the seriousness of these particular sentences, bearing in mind the time and manner of commission, and the role and position held. They failed to reflect his criminality involved and thereby erred.
      
    • 29.2 I am satisfied too the sentences imposed failed to take into account the sentencing principles of equal justice in so far as it applied to the provisions of section 21 of the Penal Code, and in so far as it applied to his role as a counselor and procurer and in particular as the initiator, master mind or planner behind the commission of these offences.
      
    • 29.3 One of the important roles of a court during sentencing, when dealing with co-defendants, or persons charged conjointly is to strive for coherence and similarity of outcome in similar cases, giving due allowance for differences in objective and subjective features. Had the Respondent been charged at the same time with the other four defendants, most likely he would have been tried together with them. Normally this is the case where an accused has been charged for counseling and procuring. He would have been arraigned in the same way and at the same time as the other accuseds, unless he had asked for a separate trial. But the fact that has not happened in this case does not mean a court should go off on a tangent and impose a sentence that is wholly inappropriate. The court must appraise itself properly of the way in which the other defendants have been dealt with as well as other similar fact cases so that an appropriate sentence is imposed.
      
    • 29.4 Section 21 of the Penal Code and key texts[12] on the question of distinction between a counselor and procurer, or accessory and principal make crystal clear that there is little distinction in the liability of an accessory to that of the principal. The sentence imposed failed to reflect and uphold these basic legal requirements and erred by giving too much weight to the subjective features of the Respondent’s involvement in the events which occurred after the commission of those offences.
      
30. While it is desirable that all things being equal, the same parties to the commission of the offence should receive similar sentences, it must be acknowledged as in this case, that not all things are always equal. These include differences in age, gender, previous criminal history, background, character etc. That there are clear differences in their personal circumstances, contributions to society and part played in events after the commission of the offences cannot be denied. The Respondent has been in the forefront in the rebuilding process and restoration of the rule of law in this nation and this has been extensively applauded by all key stakeholders both in and outside of the country. Due credit must be given for that but not to the extent that it overlooks and undervalues the criminality of the part played by the Respondent in the commission of those offences.
    
    • 30.1 The learned Magistrate erred in imposing a fine and a sentence of imprisonment when it was obvious to him that the imposition of a fine was inappropriate in the circumstances. Having concluded that a fine alone would not be adequate he erred by proceeding on to impose a fine and a sentence of imprisonment. By imposing a fine when it was clear that the gravity of the offence was such that a custodial sentence was required[13] he erred. A fine should not be imposed to take the place of a sentence of imprisonment. By doing so, he overlooked or undervalued the gravity of the offence and imposed a sentence that was not only manifestly inadequate but created an unjustified disparity in the sentences earlier imposed by this court on the principal offenders.
      
    • 30.2 This court therefore will intervene and allow the appeal not merely for the reason that the sentences imposed were manifestly inadequate but for the added reason that they created a disparity so much as to give rise to a justifiable sense of grievance or to give the appearance that justice has not been done[14].
      
31. The starting point in this case cannot be anything less than the sentences of 30 months for demanding and 25 months for simple larceny. For intimidation, sentences range from 6 months to 2 years. This is obviously a much less serious offence as depicted by the maximum sentence that can be imposed. Each fact of each case will have to be dealt with on its own merits. The circumstances in which the offending occurred were however similar and committed at about the same time as the other offences.
    
32. It must be noted that the Respondent throughout denied the commission of those offences and opted to fight this case from the beginning. This is to be contrasted with the position taken by the principal offenders in pleading guilty from the outset. A substantial discount would have been given by the court before fixing their respective sentences at 30 months and 25 months respectively. The Respondent to that extent loses out on the benefit of a guilty plea. While this means he does not get penalized for that and a higher than normal sentence imposed, in the minimum, the starting point cannot be anything less than those reduced sentences. Further, a guilty plea is also usually associated with remorse, being sorry for ones crimes and demonstrating a positive attitude and good prospects for rehabilitation and reform. In the Respondent’s case, it can be said on one hand that he had not demonstrated that attitude by denying his involvement from the beginning. On the other hand, his actions or conduct do reflect that he is prepared to work on the side of the law and to ensure that stability and peace is restored, albeit as has now transpired, at a great price or personal cost to himself, in the exposure of his own criminality despite his denial. Due credit must be given for that.
    
33. There is another important matter which the learned Magistrate referred to and which is relevant in determining ultimately the appropriate sentence in his case. This relates to the question of delay. The defendant was only charged in October 2006. Why he was never charged any earlier is something the Police only can answer, but that delay cannot be blamed on him and must be taken in his favour.
    
34. Another factor which needs to be borne in mind relates to the fact that he is a current sitting Member of Parliament for the Russell and Savo Islands Constituency and that any custodial sentence beyond six months is bound to have an adverse effect on him in that he automatically loses his seat. In Ngina v. Reginam[15] his Lordship Ward CJ. sets out a two stage process by which a court should assess the effect of the sentence on the Parliamentary career of a defendant. First the court must consider whether it could properly keep the sentence below the critical six months. If not, it must then consider if it can still be reduced because of his position as a Member of Parliament. His Lordship also commented that once he has committed an offence that so clearly merits a sentence of more than six months the mitigating effect of the loss of his seat disappears and will not be helped by any further reduction.
    
    • 34.1 In the circumstances of this case, which ever way one considers the effect of the sentence on his Parliamentary career it will have very little impact when all the circumstances of the case and all the mitigating factors are taken into account.
      
35. Taking into account his involvement and the part played by him, his position in the country at that time, occupying one of the highest, most respectable and responsible position in Government, and giving due credit for all his mitigating factors, in particular his meritorious contribution to the restoration of law and order in this country after the commission of those offences and the delay factor, the total sentence cannot be anything less than 18 months imprisonment.
    
36. I do recognise however that in his position, the effect of such a sentence on him will be more acutely felt than say an ordinary member in society and so as an act of mercy will suspend two thirds of that sentence for 12 months. He will therefore be required to serve only six months forthwith.
    
37. Finally, at close of submissions before me, it was brought to my attention that the Respondent faces risk of harm if incarcerated. I expressed surprise at this as I would have thought that there were others behind bars now, who would have been exposed to greater risk for crimes including, multiple murders and atrocities committed during the ethnic tensions but have not said so until now. In any event the Acting Registrar of High Court will alert the Prison Authorities immediately of this fear or concern so that they can take appropriate measures where needed to ensure the safety of the Respondent while in prison.
    

ORDERS OF THE COURT:

1. The appeal against sentence is upheld and the sentences appealed against below are quashed.
   
2. The following sentences are substituted –
   
   • (i) in respect of the offence of demanding with menaces contrary to section 295 of the Penal Code, a sentence of 18 months;
   • (ii) in respect of the offence of intimidation contrary to section 231(1) of the Penal Code, a sentence of 16 months; and
   • (iii) in respect of the offence of simple larceny contrary to section 261(1) of the Penal Code, a sentence of 16 months.
     
3. All the sentences are to run concurrent to each other and so total length of sentence imposed is 18 months imprisonment.
   
4. Further, order that two thirds of that sentence to be suspended for a period 12 months. Accordingly, he will serve only 6 months with immediate effect.
   

The Court.

^[1] [2005] SBHC 10, HCSI-CRC 120 of 2004 (7 September 2005)
^[2] [2006 SBHC 87, HCSI-CRC 120 of 2004 (25 July 2006)
^[3] (ibid)
^[4] SICOA-CAC No. 35 of 2007 at page 8, para. 14,
^[5] Ha’arai v. R. [2005] SBHC 39 (21^st February 2005) – sentence of 1 year and 1 month imposed;
Tahiuru v. R. [2005] SBHC 161(27^th September 2005), sentences of 3½ years and 3 years and 3 months reduced on appeal to 15 months and 10 months;
Laui v. D.P.P. [1987] (23 February 1987), sentence of 18 months for demanding money with menaces, facts included a slap and threat to kill victim and father.
R. v. Iro [2005] SBHC 133 (25^th October 2005), involved a group of militants, presence of gun in a vehicle, were drunk and demanded vehicle, sentence of two years imposed.
Fa’aramoa v. The Crown [2005] SBHC 160; (8 September 2005), 2 years sentence upheld on appeal.
^[6] Criminal Pleading, Evidence and Practice 43^rd edition, vol. 2 at Chap. 29.
^[7] R. v. Church (1985) 7 Cr. App. R. 370
^[8] Sections 32, 33 and 35 of the Penal Code.
^[9] R. v. Miyatatawuy [1996] NTSC 84; (1966) 6 NTLR 44; 135 FLR 173; 87 Crm R 574.
^[10] R. v. Thompson, October 7, 1974; R. v. Sisodia (1979) 1 Cr. App. R. (S.) 291.
^[11] Luke12:48b
^[12] See Blackstone’s Criminal Practice 1992, page 63; and Archbold Criminal Pleading, Evidence and Practice, 43^rd edition, vol. 2 at Chap. 29
^[13] R. v. Thompson, October 7, 1974; R. v. Sisodia (1979) 1 Cr. App. R. (S.) 291.
^[14] Lowe v. The Queen (1984) 154 CLR 606; 54 ALR 193; 12 A Crim R 408
^[15] [1987] SBHC 13; [1987] SILR 35 (18 June 1987)