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Bosa v R [2021] SBHC 149; HCSI-CRC 553 of 2021 (22 December 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 553 of 2021

ELVIS BOSA, BARRY KAOBATA AND JUNIOR ELLISON MANE

V

REGINA

Date of Hearing: 23 November and 14 December 2021
Date of Decision: 22 December 2021

Mr Benham Ifuto’o and Mr Donation Houa for the Appellant
Miss Geibata Cleda G Waletofea for the Respondent

RULING ON APPEAL

Bird PJ:

1. The three appellants in this matter appeal against their sentence of 12 months imprisonment imposed by the Central Magistrate Court after pleading guilty to the offence of restriction of movement in Honiara contrary to Clause 4 (1) and (2) (a) and (b) of the Emergency Powers (Civid-19) (No.2) (Honiara Emergency Zone) (Restriction of Movement) Order 2021 and Regulation 15 (1) (a) (2) and (4) of the Emergency Powers (Covid-19) (No. 2) Regulations 2021. The maximum penalty of this offending is a fine of $15,000.00 and or 5 years imprisonment.
2. The hearing of this appeal was listed for the 23^rd November 2021 and Mr Ifuto’o of counsel for the appellants and Ms Waletofea of counsel for the crown made submission in court in relation to their respective positions. In their written submissions filed in court, five appeal grounds were advanced and argued and the matter was adjourned for ruling it was whilst the court was in the process of considering the appeal that it became apparent that the respective submission of counsel did not correspond with the filed petition of appeal. Upon perusal of the filed petition of appeal dated 10^th September 2021, there was only 1 ground of appeal. The sole ground of appeal is “the learned Magistrate erred in law by imposing sentences that were manifestly excessive’.
3. The filed submissions of counsel for the appellants and counsel for the respondent contained 5 grounds of appeal namely
   1. The learned Magistrate erred in law by imposing sentences that were manifestly excessive;
   2. The learned Magistrate failed to set a starting point;
   3. The learned Magistrate denied the parties procedural fairness by failing to invite the parties to make submissions on whether to impose a custodial sentence when both parties were submitting on a pecuniary penalty;
   4. The learned Magistrate gave excessive weight to irrelevant considerations;
   5. The learned Magistrate failed to consider the personal circumstances of the appellants
4. After having carefully perused the file, I was unable to find any record that leave was sought by the appellants and granted by the court under section 286 (4) of the Criminal Procedure Code for an amendment of the petition of appeal filed on the 10^th September 2021. Notice was therefore given to both counsel for the appellants and the respondent to make further submissions pursuant to s. 286 (6) of the CPC. For that purpose further submissions were heard by the court on the 14^th December 2021.
5. It was argued by Mr Houa of counsel for the appellants that this court pursuant to s.77 (1) of the Constitution affords unlimited original jurisdiction upon this court to hear and determine any civil and criminal proceeding under any law. In this case, a Petition of Appeal was filed by the appellants on the 10^th September 2021 in accordance with s.285 of the CPC. It is noted at this juncture that the petition of appeal was so filed before the published sentence and court records were made available to the appellants. That was the position then after having perused the inscription below the ground of appeal to the effect and I quote “Further grounds of appeal may be filed once the written decision and court records are received”.
6. Section 286 (8) of the CPC also provides:
   • For the purpose of considering and preparing a petition of appeal a person entitled to appeal or his advocate or an officer in charge of a prison shall be entitled to peruse the original record of the proceedings at such time as the Clerk of Court or the Magistrate may allow.
7. Upon reading the above provision, it is obvious that solicitor for the appellants was covered in his intention to amend the petition of appeal after receipt of the published decision and the court records. On that basis, I am therefore convinced that it was just an oversight on the part of the appellants solicitor that the courts leave was not sought by him under s. 286 (4) of the CPC.
8. It was further argued by counsel that the court has the discretion through a nunc pro tunc order to grant leave in this instance. The court was referred to the case of Reef Pacific Trading Ltd v Price Waterhouse [1999] SBHC 72, whereby this court had adopted the Australian High Court decision in Emmanuele v Australian Security Commission [1996-1997] 188 CLR 115. In that case, it was the court’s view that irregularities can be cured by an order made in the proceedings nunc pro tunc.
9. In the case between Kelly v Regina [2006] SBCA 17, CA-CRAC 019 of 2006, the appellant had filed an appeal against sentence. During the cause of the hearing of the appeal before the Court of Appeal, a suggestion was made by the court on the issue of conviction. There and then, an application for leave was sought and granted and appeal against conviction was argued on behalf of the appellant. Other cases in other jurisdictions were referred to by counsel for the court’s assistance.
10. From the above cases, it can be ascertained that this court had used and applied nunc pro tunc orders if and when necessary. The court has discretion to make those type of orders as to cure irregularity in proceedings brought before it. In this case, leave should have been obtained under s.286 (4) of the CPC not later than three clear days from the hearing of the appeal. The hearing was conducted on the 23^rd November 2021. The irregularity was picked up by the court and further submissions were made on point on the 14^th December 2021. The application for leave could have been sought on the 23^rd November 2021 as in the case of Kelly cited above. That was not done but I do not think that would be fatal in this case.
11. I have perused the respective submissions of both counsel for the appellants and the respondent on this appeal and noted that both submissions have comprehensively addressed 5 grounds of appeal. On that basis, had counsel sought leave then, the court would have granted leave as sought and the appeal hearing could have proceeded without any difficulty because both counsel were ready to argue all five grounds of appeal. I can also see the additional grounds of appeal also contain issues of law that this court must address through its inherent jurisdiction. I would therefore exercise my discretion to grant an order nunc pro tunc in this case. Leave is therefore granted for the appellants to amend their petition of appeal to include the grounds of appeal set out in paragraph 3 of this ruling.
12. Having determined the issue of leave, I will now turn my mind on the grounds of appeal in this case. The first ground of appeal attacks the excessiveness of the sentence imposed by the learned Magistrate. As a way of general observation, a number of similar cases contravening the same law were brought before the Magistrates Court. Apart from two cases, all other accused persons who were convicted were sentenced by way of a fine and a discharge. On paragraph 14 of his sentence, the learned Magistrate had questioned the capacity of the appellants to pay a fine. The court is his court, and the learned Magistrate had every right to enquire of counsel as to the appellant’s capacity to pay a fine. In any case, there is also discretion on the learned Magistrate to impose further punishment in default of payment of fines.
13. In support of ground 1 of their appeal, it was argued that the learned Magistrate had failed to consider uniformity of sentencing. In all other lockdown cases as this present case, most of the other offenders were punished by way of a fine ranging from $300.00 to $1,000.00. Notwithstanding that the punishment that must be imposed on each case will depend on the facts and circumstances of each case, it is good practice that uniformity of sentencing in similar offences are considered. In the case of Yardley v Betts [1979] 22 SASR 108:1 A Crim R 329, King CJ was quoted as saying “The court endeavour to observe fairness and equality between persons sentenced for similar types of crime. This endeavour often leads to general acceptance of a range of penalties called tariff, considered to be appropriate for crime of a particular kind”. Also in the case of Bugmy v The Queen [1990] HCA 18; [1990] 169 CLR 525, it was held that uniformity of sentencing is a matter of importance.
14. Regard must therefore be made by the courts to make sure that sentences imposed by them in similar cases must consider and apply the principle of uniformity of sentences. In the case of R v Aike & Others SBMC CRC No. 525/2020, a fine of $1,000.00 was imposed on the defendant upon pleading guilty for breaching lockdown. In Regina v Auga CMC, Criminal Case 666 of 2021, the defendant also pleaded guilty for breaching lockdown and he was fined $300.00. Other cases cited by counsel were also guilty pleas and sentences imposed were fines of less than $1,000.00. None of those other cases were of imprisonment terms.
15. It was further argued by the appellants that at the time of offending, there was no covid-19 or delta variant in the country and of course there was no community transmission of the virus. As such the appellants did not pose any risk of transmission of the virus to anyone within the community. It was therefore argued that bearing in mind the uniformity of sentences and the fact that the appellants did not pose any risk of transmission of the virus, the sentences imposed by the learned Magistrate was manifestly excessive.
16. The respondent in their submission were of the view that the sentence of 12 months imprisonment is not manifestly excessive. They say so because it is within the jurisdiction of the said court to impose that sentence. The maximum penalty prescribed is one of 5 years imprisonment. They also say that the offence is that serious because of the risks associated with the spread of covid-19 and the delta variant.
17. It is noted by the court that the respondent in the lower court had made submission for a pecuniary punishment on the appellants. According to their assessment of this case at the lower court the appropriate sentence that should be imposed on the appellants was one of a fine of $300.00. There was no reasonable explanation given by counsel when the court enquired of the change of opinion.
18. I do not dispute that it is within the jurisdiction of the learned Magistrate to impose a sentence of up to 5 years for the offence charged. Notwithstanding, the court must also take into account the peculiar circumstances of each case. I have noted that the facts of each of the offending on breach of lockdown are similar. This brings me to the point of uniformity of sentences. The breach of lockdown is quite a new type of crime in the country brought forward because of the risk of transmission of covid-19 and delta virus. It is carried out over a certain period of time in order to test the country’s preparedness in dealing with community transmission of the virus. It is therefore important that when courts deal with situations which are similar in nature or crimes which are similar in nature, the principle of uniformity of sentences must be observed.
19. I have taken note of both submission from the appellants and the respondent and I am of the view that the sentence of 12 months imprisonment imposed by the learned Magistrate was manifestly excessive in the peculiar circumstances of this case. Appeal ground 1 is hereby allowed.
20. Appeal ground 2 relates to the issue of setting a starting point in sentences of imprisonment. It was submitted by the appellants that the jurisprudence in this country is to the effect that in a criminal case, the first step is to arrive at an appropriate starting point for each of the offences the appellant pleaded guilty to. That was the view of the Court of Appeal in the case of Selo v Regina [2017] SBCA 17, SICOA-CRAC 003 of 2017. That was particularly important because in a criminal case, the person upon whom the sentence is imposed must understand the court’s decision and the reasons the judge has reached it. See the case of Regina v Tebaia [2017] SBCA 7, SICOA-CRAC 18 of 2016. There is good sense why the court of appeal was of that opinion. Found upon the principles enunciated by the Court of Appeal, the appellants had argued that the learned Magistrate had erred in not setting a starting point.
21. On behalf of the respondent, it was argued that that the offence for which the appellants are charged is a relatively new offence established during the State Public State of Emergency. The sentencing tariffs with starting points are therefore not fully formed. Whilst I can understand the submissions made on behalf of the respondent, I am of the opinion that cases of this nature are under the jurisdiction of the Magistrates Court. The principle of setting a starting point equally applies to the lower courts as this court. Cases of this nature might not even reach this court unless through an appeal. It is therefore incumbent on the court at first instance to deal with setting of starting points. Only then can the jurisprudence of this country be progressed. Through the Court of Appeal decisions cited above, it was appropriate for the learned Magistrate to set a starting point before imposing an appropriate sentence. It is for the benefit of the accused person that a starting point is set out before final sentence is imposed.
22. For the above discussion, it is an essential part of sentencing that a starting point is set by the court before considering the aggravating features and the mitigating features in each case. From the above principles set out by the court of appeal, I would also allow ground 2 of the appeal.
23. Ground 3 of the appeal by the appellants is a complaint that they were denied procedural fairness because they were not invited to make submissions on whether or not to impose a custodial sentence. It was evident from the court below that both submissions from the respondent and the appellants was one of pecuniary penalty. An appropriate sentence of $300.00 fine was proposed and agreed to by both counsel in the lower court. If the court was concerned about the capacity of the appellants to pay the fine, the court is perfectly entitled to ask parties on that issue. In fact, I have had the opportunity to peruse other cases of a similar nature before the Magistrates Courts whereby the accused persons were given time to pay up their imposed fine. Likewise it is not for the court to decide to substitute a pecuniary penalty to that of an imprisonment term solely because the accused person has no capacity to pay the fine. It is important to note that the sentence that should be imposed is appropriate in the circumstances of the case. If a fine is appropriate then it must be accordingly imposed because in default of payment of that fine, the accused person will have to serve an imprisonment term.
24. It might also be the case that the appellants were being misled by the court because the court had enquired of counsel as to the appropriate sentence and it was submitted by both counsel that a pecuniary penalty was appropriate. An accused person has a right to be heard and if it concerns his right to liberty, he must be given an opportunity to be heard. In the case of Kioa v West [1985] HCA 81; [1985] 159 CLR 550, it was held that “generally speaking, where an order is to be made which will deprive a person of some rights or interests, or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity to replying to it”. That is the basis of the audi alterem partem rule. If the court was of the view that custodial sentence was the appropriate sentence, he should have invited submissions from counsel on that possibility.
25. On behalf of the respondent, it was submitted that it was the failure of the appellants’ counsel not to make any submissions on custodial sentence in the court below. As I have earlier stated, it could be possible that the learned Magistrate and counsel on both sides were not on the same page at the time of hearing. Counsel for the appellants should have made submissions on all possible sentences that could have been imposed by the learned Magistrate. The learned Magistrate and both counsel were all on the same page in relation to a pecuniary sentence. When the learned Magistrate had departed from that common understanding, and imposed a custodial sentence without inviting further submissions, the appellants have been denied their right to be heard. It would also be prudent for counsel to inquire of the court whether or not custodial sentence was a possibility.
26. In any case, this is a criminal case whereby the liberty of persons could be restrained as a result. It is always prudent for counsel and the courts to be vigilant in dealing with such issues to make sure an accused persons rights under s.5 of the Constitution are fully protected. I would also allow ground 3 of the appeal.
27. Ground 4 of the appeal is that the learned Magistrate gave excessive weight to irrelevant considerations. It was submitted by counsel that the learned Magistrate in his sentence had included irrelevant considerations. I have perused the sentence of the learned Magistrate and I can see that much emphasis is placed on covid-19 and delta variant. He had said that the virus is a devil and Solomon Islands is known to have attitude problems. The question then becomes whether or not the learned Magistrate could be entitled to make comments of a general nature on a specific criminal case.
28. In the case of Re Coombs [1996] 88 A Crim R 273, Perry J stated at page 276 stated and I quote. “The occasion for sentencing an offender should not be regarded by a Magistrate as an opportunity to embark on process of sounding off to the world at large about perceived evils in the community or other social issues......... any such remarks must should be couched in terms which maintain the dignity of the proceedings”.
29. It was submitted by counsel that the comments by the learned Magistrate on paragraphs 6, 7 and 8 of his sentence were examples of comments which could be seen to be biased against the appellants. The learned Magistrate had a perceived notion that Solomon islanders have an attitude problem and that the attitude of the appellants was an good example of that. On the contrary it was submitted by the respondent that the appellants did have an attitude problem. They knew about the lockdown but they went out from their places of residence. Covid-19 is not an issue that should be taken lightly.
30. The law on this issue is clear. A judicial officer should not embark on a process of discussing perceived evils in the community. They should not make general remarks and connect those remarks to particular accused persons as in this case. The comments in my view are irrelevant considerations that the learned Magistrate had taken into account and thus imposing a custodial sentence rather than a fine on the appellants. Appeal ground 4 is allowed.
31. Appeal ground 5 states that the learned Magistrate failed to consider the personal circumstances of the appellants. It was argued by the appellants that the learned Magistrate did not take into account the personal circumstances of the three appellants. Having perused the sentence by the learned Magistrate, he had referred to a student on paragraph 13 of his sentence. He had also stated in paragraph 14 of the sentence that he had taken into account all of the mitigating factors and their guilty pleas. He had also applied the principle in the case of R v Qoloni [2005] SBHC 73. I am therefore of the view that the learned Magistrate had in fact taken into account the mitigating features of the appellants in his sentence. Appeal ground 5 is hereby dismissed.
32. In lieu of the appeal having been successful, I hereby make the following orders:
    1. Leave to amend petition of appeal granted;
    2. Appeal grounds 1, 2, 3 and 4 allowed
    3. Appeal ground 5 dismissed
    4. The sentence of 12 months imprisonment is set aside and substituted with a fine of $500.00 in default 20 days imprisonment
    5. Fine to be paid by 12 noon on the 24^th December 2021
    6. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge