IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

BARNEY PAULSEN

-v-

REGINA

Date of Hearing: 27th March 2013
Date of Judgment:  2nd April 2013

Appellant in person.
L. Fineanganofo for the Crown/Respondent.

JUDGMENT

Apaniai, PJ:

Introduction.

1.	The appellant, Barney Paulsen, was convicted on the 19th July 2011 by the Central Magistrates Court on a charge of conversion of $35,450.30 belonging to Golf Club under section 278(1)(c)(i) of the Penal Code. He pleaded guilty to the charge and was sentenced to 2 years imprisonment with 15 months suspended upon the appellant entering into a 2 year good behavior bond in the sum of $500.00.

2.	In addition to the sentence, the appellant was also ordered to pay reparation in the sum of $18,130.00 within 6 months of his release from custody.

3.	Against that sentence, the appellant now appeals. The appeal was filed on 2nd August 2011.

4.	On the 18th November 2011 he applied for, and was granted, bail pending the hearing of this appeal. He has been on bail since then.

Appeal ground.

5.	There is only one ground of appeal, that is, that the magistrate was wrong in law in handing down too severe a punishment given the plea of guilty, remorse, delay and the particular circumstances surrounding the commission of the offence. In other words, the sentence was manifestly excessive in the circumstances.
The facts.

6.	The facts of this case are not in dispute. The appellant was temporarily engaged by Golf Club in October 2008 to work on its financial accounts. The appellant ran a private accounting and auditing business at that time.

7.	On 29th October 2008, the Golf Club manager placed a total of $35,950.80 in his office at the Golf Club premises and left for lunch. That amount consisted of $17,820.00 in cheques and $18,130.80 in cash. The appellant remained in the office when the manager left. As soon as the manager had left the office, the appellant took the $35,950.80 and left the office. That same day he took a cab to Tambea Resort where he spent the weekend drinking with friends. He had spent the full $18,130.00 cash on drinks. On the 13th October 2008, the appellant was arrested and interviewed. He admitted taking the $35,950.80 and spending $18,130.00 (cash) on drinks. He returned a number of cheques totaling $17,320.00 except for $500.00 worth of cheques. He was charged with conversion and, at his trial on 19th July 2011, he pleaded guilty to the charge. He was then given the sentence described above.

Principles relating to appeals.

8.	Penal provisions have always prescribed maximum sentences to be imposed in the event of a breach of those provisions and it has been widely accepted that the sentencing court has a very wide discretion in determining what the appropriate sentence should be in each case.

9.	Determining an appropriate sentence is no easy task despite the development of the well-known sentencing approaches of retribution, deterrence, prevention and rehabilitation. The most that a judge can do is to have regard to the range of sentences given in respect of the same class of offence in previous years and to impose a sentence that is within that range. This is important for the purpose of consistency in sentencing. Of course, not every offence is committed in exact similar circumstances and the circumstances of each case are important factors to consider when it comes to sentencing.

10.	In this case, if the sentence passed on the appellant is within the range of sentences given in respect of the same class of offence in previous years, then the appellant must convince me that the magistrate should have treated his case differently and impose a lighter sentence.

11.	Unless I am so convinced, I have no valid reason to interfere with the exercise of the magistrate's discretion in imposing the sentence which he gave the appellant.

12.	It has been said in the case of Skinner v R that a court of criminal appeal is not prone to interfere with a trial Judge's exercise of his discretion in apportioning the sentence, and will not interfere, unless it is seen that the sentence is manifestly excessive or manifestly inadequate.

13.	The sentence will be considered as manifestly excessive or manifestly inadequate if the trial judge had acted on a wrong principle, or had overlooked or undervalued or overestimated or misunderstood some salient features of the evidence or if he allows extraneous or irrelevant matters to guide or affect him.

14.	Similarly, if the trial judge had mistaken the facts or had failed to take into account some material consideration, then his determination will be reviewed and the appellate court may exercise its own discretion in substitution for that of the trial judge. Short of that, the appellate court will not interfere.

Appeal Record.

15.	In the present case, the appellant was convicted on his own guilty plea of conversion under section 278(1)(c)(i) of the Penal Code. That offence carries a maximum sentence of 7 years imprisonment.

16.	The transcript shows that substantial mitigation was made on behalf of the appellant at the trial including the fact that he was a first offender, had co-operated fully with the police and had pleaded guilty at first instance.

17.	It was also submitted on his behalf before the magistrate court that there was delay in prosecuting the case and that the appellant had proposed to refund the amount but that his proposal was rejected by the victim.

18.	It was also submitted that the appellant had re-ordered his life since the commission of the offence and was unlikely to re-offend. A letter from his church pastor was tendered as evidence of his new way of life.

19.	The transcript further shows that, in passing sentence, the magistrate had also taken note of the fact that the money was used by the appellant for drinks with friends, that he had not repaid the money, that the amount converted was significant and that the appellant was in a position of trust when he committed the offence.

20.	In the light of these mitigating factors and the aggravating features of the offence, the magistrate imposed a sentence of 2 years with 15 months suspended upon the appellant entering into a good behavior bond for 2 years. The appellant was also ordered to reimburse the amount converted within 6 months after being released from custody.

21.	It should be noted that a document which appeared to be the agreed facts stated that cheques valued at $17,320.00 were recovered from the appellant upon arrest. If so, the amount actually converted was the $18,130.80 (cash) and $500.00 (cheque) making it a total of $18,630.80. One therefore wonders why he was allowed to plead guilty to converting $35,450.30.

22.	However, that was not an appeal point and I say nothing further in regards to that matter. Hence, for the purposes of this appeal, I take it that the amount actually converted was $18,630.80 and not $35,450.30.

Is the sentence excessive?

23.	It must be made clear that any offence that involves dishonesty or breach of trust must, as a general rule, deserve a custodial sentence unless there are good reasons why a custodial sentence would be inappropriate. Where a custodial sentence is imposed, the sentence should be substantial so that the accused, and any other person engaged in similar conduct, gets a clear message of public disapproval of such conduct. In determining the substantiality of the sentence, however, one must always bear in mind the need for parity in sentencing.

24.	This case is one that involves dishonesty and a breach of trust. A custodial sentence is therefore inevitable unless the appellant can show otherwise.

25.	In DPP v Jones ("Jones"), the accused, who was the Assistant General Manager of Home Finance Corporation, was found guilty of 2 offences of conversion of funds belonging to his employer amounting to approximately $9,500.00. He was sentenced to 15 months with 8 months suspended. The accused had held a position of trust.

26.	In Suiga v Reginam ("Suiga"), the appellant had converted $6,683.21 while operating a banking agency in Small Malaita. He was a first offender and married with a number of children. He had pleaded guilty to the offence and was sentenced to 2 and ½ years. This was reduced on appeal to 18 months. Again, the appellant had held a position of trust.

27.	In Regina v Sukina ("Sukina"), the accused was a member of parliament - a position of trust. He pleaded guilty to converting $8,852.00 paid to him by the Government for a water supply project for his constituency. He was sentenced to 5 months imprisonment.

28.	In Una v Regina ("Una") the appellant was convicted in the magistrate's court of two counts of fraudulent conversion of $40,000.00 and sentenced to 2 and ½ years imprisonment. On appeal, the sentence was reduced to 18 months imprisonment. The appellant was at that time a Member of Parliament and Minister for Health and Medical Services. The money was given to him specifically for distribution to a Kwanasia cattle project. He used the money for things not related to the cattle project.

29.	In Dausabea v Regina ("Dausabea"), the appellant was convicted in the magistrate's court of one charge of fraudulent conversion. The amount involved was $40,000.00 which was money paid to him by the Government for the purpose of extending a church building. He had converted the money for his own personal use. He was convicted and sentenced to 18 months imprisonment and ordered to re-imburse the amount. He was not a first offender and had denied the charge thereby resulting in a full trial.

30.	All the above cases show that custodial sentence is inevitable in cases of fraudulent conversion. Being a first offender or pleading guilty to the charge is relevant only to the length of the sentence and is no ground for a sentence other than imprisonment.

31.	The present case is no exception. The only question is how long should the imprisonment term be and whether or not to suspend the whole or part of such imprisonment term.

32.	The cases of Jones, Suiga and Sukina involved conversion of amounts less than $10,000.00. The sentences imposed were custodial but less than 2 years.

33.	In Una, the amount converted was $40,000.00, an amount twice the total converted in this case. The appellant was convicted after trial. The sentence imposed was 2 and ½ years. There was no order for reparation.

34.	In Dausabea, the amount converted was $40,000.00, also an amount twice the total converted in this case. The appellant was convicted after trial. The appellant had a range of previous convictions for other offences. He was sentenced to 18 months imprisonment with an order for reparation in the sum of $40,000.00.

35.	In the present case, the amount converted was $18,630.80. The appellant had pleaded guilty and was a first offender. There was also delay in prosecuting the case, which was a factor which the magistrate had also taken into account. He was sentenced as described above and ordered to repay the $18,130.00 converted.

Appellant's submission.

36.	The appellant submits that the sentence was excessive in the light of his guilty plea, the fact that he was a first offender and his remorse as well as other mitigating factors submitted on his behalf.

37.	The magistrate court transcript shows that the appellant was represented by a legal officer from the Public Solicitor's Office who had filed in the magistrate court an elaborate mitigation submission on the appellant's behalf.

38.	The submission has covered such areas as his education back ground, his family and other personal circumstances, his guilty plea, his co-operation with the police during investigations, his offer to repay the money converted, which offer was rejected, the letter of support from his pastor, the delay in prosecuting the case, his previous good character with no prior conviction and his mental condition at that time.

39.	The transcript also shows that in considering the appropriate sentence, the magistrate had taken all those factors into account before imposing the sentence.

40.	It has been submitted by the respondent that no error had been committed by the magistrate in so far as the imposition of the 2 year imprisonment term is concerned and that the only error committed was the order for the suspension of 15 months of the 2 year sentence on condition that the appellant enters into a good behavior bond. The respondent submits that the suspension order is contrary to the proviso to section 32(1) of the Penal Code which bars the making of any order for a good behavior bond where the accused is sentenced to more than 6 months imprisonment.

41.	I have considered the submissions by both the appellant and the respondent. Unfortunately, I have come to the conclusion that the entire sentence of the magistrate court has to be set aside and a new sentence imposed in its stead.

42.	First, I agree with counsel for the respondent that, where the court is minded to impose a sentence of more than 6 months imprisonment, it will not be in line with the proviso to section 32(1) of the Penal Code to make an order for suspension of the sentence on condition that an accused person enters into a good behaviour bond.

43.	Second, parity in sentencing is an important principle. Like, offences committed in like circumstances must be given the same sentence otherwise an accused person would have a justifiable sense of grievance if given a different sentence. 

44.	In the light of the Una and Dausabea sentences, and applying the parity principle, it is my view that the 2 years imprisonment imposed on the appellant is slightly excessive in the circumstances. In Una, the accused was sentenced to 2 and ½ years for converting $40,000.00. In Dausabea, the accused was sentenced to 18 months for converting $40,000.00 and was ordered to repay the $40,000.00 converted. In both cases, the prisoners were members of parliament and had held positions of trust. In Dausabea, the accused even had a number of previous convictions, yet a sentence of only 18 months imprisonment was imposed.

45.	In the present case, the appellant had converted $18,130.00. He had also held a position of trust. Because of the lesser amount converted, the appellant is entitled to a lesser sentence than Una and Dausabea.

46.	It is also necessary to point out that in my view where the court is minded to make a reparation order (that is an order that the accused repay the sum converted), the court should either give the accused the opportunity to pay reparation before determining the length of the sentence or else make an order for reparation and then reduce the sentence further. Such a reduction in the length of sentence is necessary to enable the victim of the offence to be compensated as quickly as possible for his loss.

47.	In this case, I agree with counsel for the respondent that the suspension order with a good behavior bond of $500.00 imposed on the appellant is erroneous. The proviso to section 32(1) of the Penal Code does not allow the court to make orders for good behavior bond where the sentence imposed is more than 6 months. In this case, the sentence is 2 years imprisonment. If the court is minded to suspend part of the sentence, that should have been done under section 44 of the Penal Code.

48.	Having said that, the remaining question is whether a 2 year sentence is appropriate in this case. In my view, a sentence of 2 years in this case would have been appropriate if no reparation order was made. However, the magistrate had thought it appropriate to make a reparation order. He is perfectly entitled to make such order. I will not interfere with his decision to make the reparation order.

49.	However, having made a reparation order, it is my view that the 2 years sentence should have been reduced.

50.	I will therefore allow the appeal and set aside the 2 year sentence imposed on the appellant by the magistrate court as well as the good behavior bond imposed. The order to repay the $18,130.00 within the time given by the magistrate will remain.

51.	Finally, I have considered whether or not to remit the case back to the magistrate court for re-sentencing. However, it seems to me that there is sufficient material before me to enable me consider the appropriate sentence in this case.

52.	In my view, a sentence of 12 months imprisonment coupled with an order for compensation is appropriate in the circumstances of this case.

53.	The orders I make are as follows:-

[1]	That the magistrate court's order requiring the appellant to pay reparation to Golf Club in the sum of $18,130.00 within 6 months from the date of his release is confirmed.

[2]	That the rest of the sentence imposed by the magistrate court is set aside and, in lieu thereof, the appellant is sentenced to 12 months imprisonment.

[3]	To enable reparation to be paid as quickly as possible, I further order that 6 months of the 12 months imprisonment term be suspended under section 44 of the Penal Code. That means the appellant will only serve 6 months in prison.

[4]	As the appellant had been in custody from 19 July 2011 until he was granted bail on 18 November 2011, I further order that:-

[a]	he commences the 6 months imprisonment term from today; and,

[b]	the period he had already spent in custody from 19 July to 18 November 2011 be counted towards the 6 months imprisonment term.

THE COURT

_________________
James Apaniai
Puisne Judge