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Bade v Regina [2014] SBCA 13; SICOA-CRAC 31 of 2013 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT – COURT OF APPEAL

In both Gerea v Director of Public Prosecutions (1984) SBCA 2 and Manioru and Bolami v Regina (2012) SBCA1, this court rejected an argument that the mandatory life sentence for murder provided for in section 200 of the Penal Code was unconstitutional in that it deprived a person of a fair hearing as guaranteed by s.10 (1) of the Constitution of the Solomon Islands.

Counsel for the appellant now submits this Court should reconsider those cases in the light of a major review of constitutions in countries where it has been held the legislature has power to provide for mandatory sentencing in certain circumstances. Significant emphasis was placed on the fact that s.10 (1) of the Solomon Islands Constitution entrenched the right to a fair hearing for a person charged with a criminal offence.

Though this case is concerned with the legislative imposition of mandatory life as the sentence for murder, the underlying principle, if the appellant's argument was accepted, would have wider operation. Stripped of its emotive elements the principle must be that s. 10(1) prevents the legislature from interfering with the sentencing discretion exercised by a judge when imposing sentence for any crime. As was noted by White P. and Connolly JA in Gerea: "Statutes in many countries make provision not only for mandatory sentences but for maximum and minimum sentences. It may be said that the latter two categories leave the court some discretion but it cannot be denied that they restrict it" The Penal Code of the Solomon Islands is replete with maximum sentences and to an extent that imposes a limit on the sentencing discretion. If a restriction on the exercise of sentencing discretion is inconsistent with the guarantee of a fair trial provided for by s. 10(1) of the Constitution then all those provisions providing for a maximum penalty are unconstitutional.

But that is not the position. As White P. and Connolly JA went on to say in Gerea:

"The fact however is that it is of the nature of the legislative process constantly to vary the content of the law to be applied by the courts. This means that with every exercise of the legislative power there comes into existence a new legal framework to which the court must give effect. Thus a court which is free to act on the principles of common law and equity may find that a new defence or a new cause of action is introduced by a statute. It cannot in our judgment, seriously be described as trenching upon the independence of the court to say that it is required to give effect to the alteration in the law. The courts exist to enforce the law in the form which it takes from time to time. They are, in our judgment, independent within the meaning of s.10 (1) if in the exercise of that function they are subject neither to control nor pressure by any outside body. The requirement of s. 10(1) is in our opinion fully met if, as is the case in Solomon Islands, they are subject to no direction by the legislature or the executive government as to the disposition of a particular case and to no form of pressure from outside bodies in the performance of their judicial functions. They are however, like the courts in all civilised countries subject to the same body of law as is every other citizen. The courts are not intended by s. 10(1) to be independent of the law but independent within it.

In Hinds v. The Queen (1977) A.C. 195; (1976) 1 All E.R. 353, in a judgment which is notable for its insistence on the independence of the judiciary in a constitution framed on the Westminster model, Lord Diplock, delivering the judgment of the majority of the Board, affirmed the power of the Parliament to prescribe a fixed punishment. His Lordship was in the course of considering how the power to determine the length and character of a sentence which imposes restrictions on the personal liberty of the defendant is distributed under the three heads of power, legislative, executive and judicial, which are implied in a constitution on the Westminster model. While affirming that the Parliament cannot, consistently with the basic principle of separation of powers, transfer the sentencing discretion from the judiciary to an executive body, his Lordship at p. 226 stated the powers of the Parliament in the following language which in my judgment is relevant to the present appeal:-

"In the exercise of its legislative power, Parliament may, it is thinks fit, prescribe a fixed punishment to be inflicted on all offenders found guilty of the defined offence, as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case.

Thus Parliament, in the exercise of its legislative power, may make a law imposing limits on the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge's own assessment of the gravity of the offender's conduct in the particular circumstance of his case."

This court agrees with and confirms the reasoning in those passages.

Further in Manioru and Bolami this court also confirmed that reasoning in Gerea and added reference to Deaton v AG and Revenue Commissioners (1963) IR 170 and Palling v Corfield (1970) HCA 53, 123 CLR 52. In both those cases the right to a fair trial was axiomatic and the courts did not consider that the imposition of a mandatory sentence deprived the person of a fair hearing.

The position in all countries which have adopted constitutions based on the Westminster model, and which recognise an accused person's right to a fair trial, has been well summed up by Keane J in Magaming v The Queen (2013) HCA 40:-

"The discussion of proportionality in sentencing in those cases proceeds by reference to legislated yardsticks. Each yardstick fixed by the legislature provides a necessary datum point from which the discussion of proportionality in sentencing may proceed. As was said in Markarian v The Queen by Gleeson CJ, Gummow, Hayne and Callinan JJ: "Judges need sentencing yardsticks. "The provision of those yardsticks is the province of the Parliament.

None of the decisions cited by the appellant offers any support for the notion that it is any part of the judicial function to ensure that the yardsticks legislated for various kinds of misconduct are "appropriately" calibrated to some assumed range of moral culpability in offenders. The work of the legislature in laying down norms of conduct and attaching sanctions to breaches of those norms is anterior to the function of the judiciary. As was said in the Supreme Court of Canada in R v McDonnell:

"(I)t is not for judges to create criminal offences, but rather for the legislature to enact such offences"

The enactment of sentences by the legislature, whether as maxima or minima, involves the resolution of broad issues of policy by the exercise of legislative power. A sentence enacted by the legislature reflects policy -driven assessments of the desirability of the ends pursued by the legislation, and of the means by which those ends might be achieved. It is distinctly the province of the legislature to gauge the seriousness of what is seen as an undesirable activity affecting the peace, order and good government of the Commonwealth and the soundness of a view that condign punishment is called for to suppress that activity and to determine whether a level of punishment should be enacted as a ceiling or a floor.

In laying down the norms of conduct which give effect to those assessments, the legislature may decide that an offence is so serious that consideration of the particular circumstances of the offence and the personal circumstances of the offender should not mitigate the minimum punishment thought to be appropriate to achieve the legislature's objectives, whatever they may be".

It follows from the quoted reasoning that a mandatory fixed penalty for an offence, provided it is of general application, does not deprive an offender of a fair hearing as guaranteed by s. 10(1) of the Constitution. The Court in imposing the mandatory sentence is merely acting within the framework of the law laid down by the legislature.

Undoubtedly, one of the reasons this court has been repeatedly asked to consider the constitutional validity of a mandatory life sentence is the fact that there is no regular parole regime in place in the Solomon Islands. Though there is legislative provision for a Parole Board, it has only been enlivened intermittently.

The Chief Justice in Ludawane HCSI-CRC 233 of 2008 and this Court in Manioru and Bolami discussed the desirability of a judge sentencing an offender to life imprisonment making some observations for the future benefit of a Parole Board should one be constituted, including (as the Chief Justice did in this case) indicating a range when parole might reasonably be considered. If that procedure was generally adopted much of the concern giving rise to challenges such as made in this case would be unnecessary.

Finally this court makes the observation that in its view steps should be taken to implement the provisions relating to the constitution of a Parole Board as soon as possible.

The appeal should be dismissed.

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Justice Goldsbrough
President

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Justice Williams J.A
Member

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Justice Ward J.A
Member