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Bu'uga v Regina [2011] SBHC 163; HCSI-CRAC 396 of 2011 (9 December 2011)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Appellate Jurisdiction

BILLY BU'UGA

V

REGINA

Date of Hearing: 2nd December 2011
Date of Judgment: 9th December 2011

Mr. Ifuto'o for the Appellant.
Mr. Iomea for the Respondent.

JUDGMENT

Apaniai, PJ:

The facts:

1. On 27th May 2010, the appellant, Billy Bu'uga, appeared before the Central Magistrates Court in Honiara and was convicted of 6 counts of burglary. The offences were committed between 14th January and 27th March 2010 ("January/March offences"). He was sentenced to 4 years and 4 months in respect of the 6 counts. The sentence will lapse on 16th April 2013. The appellant is currently serving that sentence.
   
2. On 30th May 2011, the appellant again appeared before the Central Magistrates Court on 2 charges of burglary and pleaded guilty to both charges. The first charge was in relation to burglary committed between 2nd and 3rd March 2010 ("March offence") and the second charge was in relation to burglary committed on 3rd April 2009 ("2009 offence").
   
3. With regards to the March offence, the appellant was sentenced to 2 years to be served concurrently with the 4 years and 4 months imposed for the January/March offences. It appears that the sentence was made concurrent with the 4 years and 4 months sentence because it was committed within the same period in which the January/March offences were committed and was therefore considered as part of a single transaction with the January/March offences. The appellant did not appeal against that sentence.
   
4. With regards to the 2009 offence, the appellant was also sentenced to 2 years imprisonment to be served cumulatively with the 4 years and 4 months sentence for the January/March offences. This means that the 2 year sentence for the 2009 offence will commence at the end of the 4 years and 4 months term which is 16th April 2013. It seems that this sentence was made consecutive to the 4 years and 4 months sentence because the offence was committed outside the period in which the January/March offences were committed.
   
5. Counsel for the appellant submits that the effect of this cumulative sentencing is that the appellant will spend a total of 6 years and 4 months in prison.
   

Grounds of appeal:

6. The appellant now appeals against the cumulative sentence claiming that the sentence is manifestly excessive and that the magistrate had failed to take into account the totality principle. The appellant seeks an order that the sentence by the Magistrate Court be set aside and that a lesser sentence be imposed instead.
   
7. The appellant has raised 4 points in his attempt to show that the sentence was excessive. The first is that the combine effect of making the 2 year sentence for the 2009 offence to run cumulatively with the sentences for the January/March offences means that the appellant will have served a total of 6 years and 4 months. The second is that the Magistrate had not taken into account the period (5 weeks) which the appellant had spent in custody awaiting his trial. He says the period commenced on 12th April to 27th May 2010. The third point is that the Magistrate had not taken into account the appellant's guilty plea and the fourth point is that there was unreasonable delay in prosecuting the 2009 offence. The appellant says that the offence was committed on 3rd April 2009 and that the appellant was only charged 23rd February 2011 with the trial being held on 30th May 2011. He says this was unreasonable delay.
   

Appeal Ground 1, Excessiveness of the sentence – Point 1:

8. I deal now with the first point. The appellant says that the Magistrate was wrong in making the sentence for the 2009 offence cumulative with the sentences for the January/March offences. The starting point in deciding this issue is section 9(1) of the Criminal Procedure Code (Cap. 26) ("CPC"). That section lays down the general rule that when a person is convicted of several offences at one trial, any custodial sentence imposed for each of those offences must be made consecutive unless the court directs that the sentences should be concurrent. The test as to whether a sentence should be concurrent has been laid down in Bade v R[1] ("Bade") where Ward, CJ, said:
   

"When considering sentence for a number of offences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. However, there are two modifications namely:

[a] where a number of offences arise out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences; and,

[b] where the aggregate of the sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case.

9. The principle in that case is that where the offences are separate, separate sentences should be imposed for each offence and that concurrent sentence should be imposed only where the offences arose out of a single transaction and cause harm to the same person. In R v Maenisoa[2], I said that generally, offences are concurrent when they form part of a single transaction and that offences may be treated as part of a single transaction when they are proximate in time or where they are proximate in the type of offences and where they involve the same victim. However, each case must depend on its own circumstances.
   
10. It is clear to me that the present case does not fall within "single transaction" principle. The 2009 offence was against a person called John Beverley while the January/March offences were against different persons. Furthermore, the 2009 offence was committed on 3rd April 2009 while the January/March offences were committed between 14th January and 27th March 2010. Clearly, the offences were not proximate in time nor were the victims the same persons. The Magistrate was therefore correct in imposing a cumulative sentence in regards to the 2009 offence. I reject the first point.
    

Appeal Ground 1, Excessiveness of the sentence – Points 2 and 3:

11. The second and third points allege omissions which the Magistrate is said to have committed during its proceedings on 30th may 2010. It is alleged that the Magistrate had not taken into account the period of 5 weeks which the appellant had spent in custody awaiting his trial ("remand period") and had not taken into account the appellant's guilty plea.
    
12. In regards to the second point, the appellant says that the remand period commenced on 12th April to 27th May 2010. He says the Magistrate should have taken that that period into account when imposing the 2 years sentence. He failed to do that and therefore, says the appellant, the Magistrate was wrong.
    
13. I have read the transcript of the Magistrate Court proceedings. I note that submissions have been made, presumably, on behalf of the appellant. The submissions included the fact that the appellant was 25 years of age, single, lived with his aunt, unemployed and had pleaded guilty. In his sentencing remarks, it is clear that the Magistrate had not mentioned anything about the remand period. I am not sure whether counsel for the appellant had raised this point in his submissions before the Magistrate. The transcript did not show that he did. There is also no evidence before me to show that counsel had done so. The onus is on the appellant to show that he had raised the point but that the Magistrate had failed to take it into account. In the absence of any evidence to that effect, I am entitled to assume that the point had not been raised. That being so, I do not think counsel is entitled to use the appeal procedure as a process for curing his omissions or failures in the court below. I reject that point.
    
14. I also reject the third point. It is clear from the transcript that the Magistrate had taken the guilty plea into account in passing the 2 year sentence. It should be noted that the 2009 offence carries a maximum sentence of life imprisonment. It was a burglary which was committed at night. A 2 year sentence is not excessive and is within the range that the Magistrate was entitled to impose. It was held in House v The King[3] that a sentence of a lower court should not be interfered with unless it is shown that some error had been committed by the lower court in the exercise of its discretion as for instance if the lower court had acted upon a wrong principle or if the lower court had allowed extraneous or irrelevant matters to guide or affect it or if the lower court did not take into account some material consideration. Only then would the appellate court review the decision and exercise its own discretion in substituting its decision for that of the lower court.
    

Appeal Ground 1, Excessiveness of the sentence – Point 4:

15. I also reject the fourth point. The issue of delay is not calculated from the time of the commission of the offence. It is calculated from the time when the charge is laid. Section 10(1) of the Constitution provides that a person charged with a criminal offence ... shall be afforded a fair hearing within a reasonable time ...". There is delay if the case is not heard within a reasonable time. What is reasonable time depends on the circumstances of each case. In the present case, the appellant was charged on 23rd February 2011 with the 2009 offence. The trial was held on 30th May 2011. There is no delay in this case.
    

Appeal Ground 2, Totality Principle:

16. I now turn to the second ground of appeal which says that the Magistrate was wrong in not taking into account the totality principle when imposing the 2 year sentence for the 2009 offence cumulatively with the sentence for the January/March offences.
    
17. Again, the principle laid down in Bade is relevant to this appeal ground, that is, that separate and consecutive sentences should be passed for separate offences but that the totality principle may be applied where the aggregate of the sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case.
    
18. The totality principle was described in Thomas, Principles of Sentencing[4], as follows:
    

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated in various forms: 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behavior and ask itself what is the appropriate sentence for all the offences'".

19. In the present case, the Magistrate had imposed a sentence of 2 years imprisonment for the 2009 offence to be served cumulatively with the 4 years and 4 months prison terms imposed for the January/March offences. The January/March offences were committed in January and March 2010 and tried on 27th May 2010. The 2009 offence was committed on 3rd April 2009 and tried on 30th may 2011. The offences were not part of a single transaction and were not heard at one trial. There were two separate trials at which the sentences were separately passed. Despite that, the appellant argues that the totality principle still applies in the light of the total number of years he would serve due to the fact that the sentence imposed in respect of the 2009 offence would not commence until after the completion of the 4 years and 4 months sentence for the January/March offences on 16th April 2013. Hence, the issue here is whether the Magistrate had erred in not applying the totality principle when considering the sentence for the 2009 offence.
    
20. In my view, the Magistrate should have applied the totality principle. The sentence for the 2009 was cumulative and would commence at the end of the sentence of 4 years and 4 months which the appellant is current serving in respect of the January/March offences. It matters not whether the offences were not part of a single transaction and did not involve the same victim - the totality principle still applies. My view is supported by a number of authorities. I will cite only three of them.
    
21. The first is Postiglione v The Queen[5], in which McHugh, J, after discussing the totality principle as it applied to a court sentencing an offender in respect of multiple offences, stated that the totality principle had been extended. He said:
    

"Recent decisions in the Court of Criminal Appeal (R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 40 A Crim R 197; R v Gordon (1994) 71 A Crim R 459) have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."

22. The second is R v Gordon[6] where Hunt, CJ, said:
    

"Where a custodial sentence is to be imposed cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of the criminality involved in all of the offences to which that total period is attributable."

23. The third is the Western Australian case of Vlek v R[7] where

Anderson, J, (with whom Pigeon & Ipp, JJ agreed) said:

"Nevertheless, there is now a long line of authority to the effect that the totality principle must be applied, as best the court can, not only to sentences imposed in the one court for offences committed as part of a connected and roughly contemporaneous series of offences (about which the court will know all that needs to be known), but also wherever a prisoner is being sentenced for an offence whilst he is still serving a sentence for some other offence about which the Court might not know very much."

24. On the basis of these authorities, I am satisfied that the Magistrate should have applied the totality principle when determining whether or not the aggregate sentence of 6 years and 4 months adequately and fairly represents the totality of the criminality involved in both the 2009 offence and the January/March offences. In not doing so, the Magistrate had committed an error.

25. However, the matter does not end here. While the Magistrate may have committed an error in not applying the totality principle, the question still remains whether the 6 years and 4 months adequately and fairly represents the totality of the criminality involved in both the 2009 offence and the January/March offences. It is clear that the appellant is a serial offender with a previous conviction for burglary in 2008 for which he was sentenced to ½ year imprisonment. That offence coupled with the 2010 burglary offences as well as the one which is the subject of this appeal confirm that the appellant is a serial burglar. In those circumstances, is the 6 years and 4 months too severe? I think the answer must be "no".

Decision/Order:

26. It follows therefore that, while I have come to the conclusion that the Magistrate was wrong in not applying the totality principle, I am satisfied that no substantial miscarriage of justice has actually occurred in the Appellant's case and therefore, pursuant to the proviso to section 293(1) of the CPC, I dismiss the appeal.

27. The order of the court is that the appeal is dismissed.

THE COURT

__________________
James Apaniai
Puisne Judge

^[1] Crim. Appeal No. 37 of 1988 at p. 2 (Paclii)
^[2] Criminal Case No. 82 of 2010
^[3] (1936) 55 CLR 499 at p. 505.
^[4] 2^nd Ed (1979), pp. 56-57)
^[5] [1997] HCA 26; (1997) 189 CLR 295 at p. 308.
^[6] (1994) 71 A Crim R 459 at 466.
^[7] (Unreported, 29^th march 1999)