IN THE HIGH COURT
OF SOLOMON ISLANDS

(Goldsbrough, J)
Civil Jurisdiction

Civil Case Number: 443 of 2009

BETWEEN:

REGINALD KOLKILI
First Petitioner

AND:

HENRY ZIMBO
Second Petitioner

AND:

CHARLES MACLEAN
Third Petitioner

AND:

FRANCIS MOAH
Fourth Petitioner

AND:

EDDIE SUKE
Fifth Petitioner

AND:

SIR ALLAN KEMAKEZA
First Respondent

AND:

ATTORNEY-GENERAL (representing
Returning Officer Enley Sade)
Second Respondent

Counsel for the Petitioners D Hou Public Solicitor
Counsel for the First Respondent J Sullivan Q.C. and with. him R Kingmele 
Counsel for the Second Respondent S Woods and with him K Ziru

Date of Hearing: 26 January 2010
Date of Decision: 26 February 2010

JUDGMENT

The first respondent stood for election to the National Parliament in a by-election for the constituency of Savo and Russells, which election took place on 29 October 2008. He polled the greatest number of votes out of all candidates and was declared on 31 October 2009 by the Returning Officer to have been duly elected. On 1 November 2009 the Governor-General published by notice the results.

2. The original petition was filed 13 November 2009, though amended subsequently, by five candidates at the same by-election. It alleges that the first respondent was a person disqualified under section 49 (1) (e) of the Constitution at the relevant time.

3. An agreed statement of facts in this matter was filed 18 January 2010. In that statement of facts can be found the conviction and sentence which forms the basis of the alleged disqualification of the first respondent. The relevant conviction is dated 26 October 2007, and the relevant date of sentence, imposed on appeal, is 3 September 2008.The sentence imposed is set out in paragraph 6 of the agreed facts. It was for three offences and the total effect of that sentence was a period of imprisonment for eighteen months, part of which was ordered to be served with immediate effect and the balance of which was only to be served in the event that a further offence punishable with imprisonment was committed by the first respondent during a suspension period. This type of sentence can conveniently be termed a partly suspended sentence. The immediate imprisonment began on 3 September 2008 and ended with the first respondent's release from custody on 31 December 2008. Since then he has not re-offended and by the date of this judgment by any calculation or interpretation the period of suspension has ended without any occasion for it to be implemented.

4. What remains in this petition is a determination of the relevant period during which the first respondent was the subject of a sentence of imprisonment. This is significant because of the terms of section 49 (1) (e) of the Constitution and involves an interpretation of the relevant sections of the Penal Code dealing with imprisonment.

5. Section 49 of the Constitution provides that:

"(1) No person shall be qualified for election as a member of Parliament who-

(a) …

(b) …

(c) …

(d) …

(e) is under sentence of death imposed on him by a court in any part of the world, or is under a sentence of imprisonment (by whatever name called) for a term of, or exceeding, six months, other than a sentence in lieu of a fine, but including a suspended sentence, imposed on him by such a court or substituted by competent authority for some other sentence imposed on him by such a court;

(f) …

(g) …

(2) For the purpose of paragraph (e) of the preceding subsection two or more terms of imprisonment that are required to be served consecutively shall be regarded as a single term of imprisonment for the aggregate period of those terms.

6. Eighteen months from 3 September 2008 would end sometime in March 2010. If the first respondent had been sentenced to immediate imprisonment without any suspension and had begun and completed his sentence without incident he may have expected to be released by September 2009 (having been granted remission of one third of his sentence under Division 6 Prisons Regulations made under section 61 of Cap 111 as they then were). If the entire period had been suspended he would have been subject to it for the entire period of its suspension which may have been any period between one and two years. The outstanding question is what is the relevant period for this partly suspended sentence? Given that the first respondent was released with remission on 31 December 2008 what is the relevant remaining period, if any, of suspension of the outstanding twelve months of his sentence?

7. Section 44 of the Penal Code [Cap 26] sets out the relevant provisions of suspended sentences. It provides:-

Suspended sentences 16 of 1987, s. 2

"(1) Subject to the provisions of subsections (2) and (3) of this section, a court which passes a sentence of imprisonment on any offender for a term not more than two years for any offence, may order-

(a) that the sentence shall not take effect during a period specified in the order: or

(b) that after the offender has served part of the sentence in prison, the remainder of the sentence shall not take effect during a period specified in the order,

unless during the period specified in the order, the offender commits another offence punishable with imprisonment and a court thereafter orders under section 45 that the original sentence shall take effect:

Provided, that the period specified in the order shall not be less than one year or more than two years.

(2) The provisions of subsection (1) of this section shall not apply where the offence involved the use or the illegal possession of a weapon.

(3) A court shall not deal with an offender by means of a suspended sentence unless the case appears to the court to be one in respect of which a sentence of imprisonment would have been appropriate in the absence of any power to suspend such a sentence by an order under subsection (1) of this section.

(4) A court which passes a suspended sentence on any offender for an offence shall not make a probation order in respect of another offence of which he is convicted before the court or for which he is dealt with by the court on the same occasion.

(5) Where a court passes a suspended sentence on an offender in respect of an offence and a term of imprisonment in respect of another offence the court shall direct that the suspended sentence be concurrent with the term of imprisonment.

(6) On passing a suspended sentence the court shall explain to the offender in ordinary language his liability under section 45, if during the period of suspension he commits a subsequent offence punishable with imprisonment.

8. Some of the above legislation is not relevant to this petition. It has been included deliberately so that the reader may appreciate the section in it's entirety without recourse to other material. It can be found in Part VI of the Penal Code dealing with punishments for criminal offences, which part begins with imprisonment.

9. The first respondent was made the subject of a sentence under Section 44 (1) (b). Of a total of eighteen months, that is to say 18 months, 16 months and 16 months imprisonment all to run concurrently, making an effective total of eighteen months, six months was ordered to be served with immediate effect and the balance, that is to say 12 months was not to take effect unless the first respondent committed another offence punishable with imprisonment and a court thereafter ordered under section 45 that the original sentence take effect.

10. The period of suspension was described as 12 months. No commencement date for that period was included in the judgment or warrant of commitment following the judgment. It is this which is in issue and is determinative of this petition, for it is not in issue that if the first respondent was still subject to a period of imprisonment at the time of his election, then his election was void. If the suspension period began with the date of sentence it will have ended before this election. If it began when the immediate part of the sentence was completed it will have still been in force at the time of the election.

11. Section 44, in prescribing the terms under which an offender may be subjected to a suspended or partly suspended term of imprisonment, which sentences only became available after 1987, sets out several parameters. Suspension is not available if the sentence of imprisonment is for two years or more, or in the case where the use of a weapon is involved, or where the offence itself does not merit some form of custodial sentence, or where probation is indicated.

12. Section 44 also provides, in subsection 5, that where a court passes a suspended sentence on an offender in respect of an offence and a term of imprisonment in respect of another offence, that the court shall direct that the suspended sentence shall be concurrent with the term of imprisonment. It is said, on behalf of the first respondent that this restriction on the imposition of suspended sentences is the key to determining the start of the suspension period. If the suspension period of twelve months was correctly stated as being on 3 September 2008 then as at file time of this election the first respondent would not be the subject of any period of imprisonment and therefore not disqualified.

13. The argument for the first respondent in that regard is not a valid argument. It is not a valid argument for more than one reason.

14. The first reason why the argument is not a valid argument is that the first respondent was sentenced in respect of each of three offences to concurrent terms of imprisonment, some of which was to be served and some of which was to be held in suspense. It is therefore not correct to assert that this offender was the subject of both a suspended sentence in respect of an offence and a term of imprisonment in respect of another offence, for that is not the sentence imposed on the first respondent. For each offence this offender was sentenced to a term of imprisonment. There was no mixture of immediate and suspended sentences, and therefore subsection 5 is not applicable.

15. This interpretation of the sentence imposed, as opposed to the interpretation of subsection 5 of section 44 arises from the notion that for one offence an offender can only be sentenced to one punishment. There may be ancillary orders made at the same time, such as an order for compensation or restitution, but the offence will only merit one sentence. It may be a fine, it may be a discharge of some sort, it may be imprisonment, but whatever it is, it cannot be more than one sentence for one offence. Here there were three offences, and three sentences all of which were identical in mature if not in length. It is therefore wrong to describe them in one breath as a suspended sentence in respect of one offence and a term of imprisonment in respect of another.

16. Given that this court does not agree with the submission that 44(5) applies in this instance, guidance is then found in section 44 (1) (b) as to when the period of suspension begins. That provides that only after the offender has served part of the sentence in prison that the remainder may not take effect. This provision dictates that the suspension period cannot begin until after the offender has served that part of the sentence which is not immediate.

17. There is some criticism of the sentencing judge to be found in submissions for the first respondent which are explained, so it seems to this court, by that provision. A sentencing judge cannot specify the sate on which the suspension period begins as the sentencing judge does not know on which date the immediate part of the sentence will end, for that will in part depend upon how well or otherwise the offender behaves in prison. He may, as in this case, receive full remission. Equally he may not. The best, then, that can be said is that the period of suspension will commence of the offender's release from prison. I am prepared to accept the assertion in submissions that even this was not explained to the offender by the sentencing judge, but this is not a Court of Appeal reviewing the sentence. It is a civil court determining the effect of the sentence imposed.

18. Praying in aid section 45 of Cap 26 does not, in my view, assist the first respondent. Section 45 deals with subsequent conviction during the suspension period and is said to confirm that the sentence imposed should be regarded as a suspended sentence. It is submitted that, if the sentence is not to be termed a suspended sentence, then there is nothing that remains to be put into effect. Yet that argument again can be shown to be false as it must apply to all three of the sentences and not to only one of them. Given that, again section 44 (5) will not apply.

19. Assuming for a moment that section 44 (5) is applicable, which proposition this court does not accept, it could also be said that since the sentencing judge order the terms of imprisonment to be concurrent then there has been compliance. The provision does not require the period of suspension to be concurrent, only the resulting term of imprisonment. That those periods are concurrent suggest compliance with the subsection, and that the notion appears to be a false notion only supports the view that the subsection does not actually apply in this case.

20. However given the court's view on the applicability of section 44 (5) to this issue, it is not relevant to determine what the subsection actually means.

21. The period of suspension of twelve months specified in the sentence imposed on the first respondent on 3 September 2008 began when he was released from jail on 31 December 2008. It therefore remained in force until 30 December 2009, was in force at the time of his nomination and election as member for the constituency of Savo and Russells and means that at the time of his election he was disqualified by virtue of Section 49 (1) (e) of the Constitution.

22. Under the proviso to Section 84 of the National Parliament Electoral Provision [Cap 87] this court declares, as the first respondent was disqualified at the time of his election, that the by-election held on 29 October 2009, declared on 31 October 2009 and for which the results were published on 1 November 2009 was void. This determination is hereby certified to His Excellency the Governor-General in accordance with the Electoral Provisions.

23. In the circumstances of this petition the most appropriate order as to costs is that no order be made, each party to bear their own costs.

Dated this 26th day of February 2010

___________________
Goldsbrough, J.