[1983] SILR 53

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No.4 of 1983

WANGA

v

R

High Court of Solomon Islands
(Daly C.J.)
Criminal Appeal Case No.4 of 1983

17th March 1983

Sentence – “clang of prison gates” – personalization

Facts:

The appellant, a man aged 37 years was convicted of two offences of fraudulent embezzlement and three offences of fraudulent false accounting. The total amount which the appellant obtained from his employers by these means was $3151.38. The appellant was sentenced to a total of two years in imprisonment. He appealed against sentence. Counsel submitted, inter alia, that “the clang of prison gates principle” should apply.

Held:

There was no principle of sentencing in Solomon Islands properly described as “the, clang of prison gates principles”. However a submission may be made that a sentence be personalized even if the sentence was not wrong in principle. Here such a submission was appropriate and the sentences should be reduced to one year in all.

For Appellant: A. Radclyffe
For Respondent: L. Holt

Daly CJ: The Appellant, Philip WANGA, was convicted of five offences on his own plea of guilty, before the Chief Magistrate sitting in Honiara on 22nd February 1983. The offences consisted of two offences of fraudulent embezzlement contrary to section 266(a) (ii) Penal Code and three offences of fraudulent false accounting contrary to section 299 (1) Penal Code. On each of the two embezzlement counts the Appellant was sentenced to 9 months imprisonment to be served consecutively; on one of the false accounting counts 6 months to be served consecutively to the sentences of nine months earlier imposed and on the remaining counts 6 months on to be served concurrently with the other sentences. Thus the total sentence was two years imprisonment. Against these sentences the Appellant now appeals.

The Appellant, a man aged 37 years, was employed by a firm of travel agents as their International Travel Adviser and had been so employed since 1972. In that position he handled money paid by clients and paid to the agency to arrange bookings for clients of other agencies. In February, October and November 1979 the Appellant pocketed money paid to him for air tickets by clients and made out false invoices to cover these facts. On 15th May 1980 he cashed a bank draft received by the agency to cover the costs of persons visiting Honiara and kept the proceeds. On 26th October 1981 the Appellant received cash from a client of the Agency but, instead of banking it, put it in his own pocket and when challenged said he had received no money. The matters were reported to the police on 29th October, 1981. The magistrate was told that the delay in bringing the case to trial was due to the necessity to carry out very extensive investigations into the accounts of the agency.

The appeal is on the basis that learned magistrate fail adequately to take account of the mitigating factors in this case. Counsel for the Appellant said these factors were five in number.

1. The Guilty plea.

2. That the Appellant is a first offender.

3. That full repayment has been made.

4. That the offences were “stale.”

5. That the “clang of prison gates” principle applied.

The latter is not, of course, a mitigating factor but a submission that a particular sentencing approach be applied to the case. I shall say something about that approach later in the judgment.

It has been suggested, with some force, that applying the normal tariff evolved in Solomon Islands, these sentences are of trust over a considerable period of time and criminal energy was expended in covering up these breaches. The total amount involved was $3151.38. There is no doubt that the learned magistrate considered the factors to which counsel now refers.

What is in reality being said by counsel for the Appellant is that this is a case which should be taken out of the tariff and an individual sentence substituted for the tariff sentence. Counsel submits that there are exceptional features in this case which would warrant such a course.

He puts in the forefront of his argument what has occurred since investigation started. This is that the Appellant has paid back the money the subject of the charges; with the help of his wife he has obtained a loan, and has become re-employed with an employer who may be prepared to take him back. This, says counsel, should be seen against the background of his long wait to come to trial; his guilty plea; his age and the fact he is a first offender. On that basis it is submitted that a comparatively short prison sentence is sufficient to mark the disapproval that the court and society feel for the kind of conduct committed by the Appellant.

Counsel went on to submit that this was the sort of case which in England and Wales, would be dealt with on what has been called “the clang of the prison gates” principle. I am grateful to counsel for referring me to the various cases in which this principle has been mentioned but I find it unnecessary to consider whether or not this submission is correct. Circumstances of imprisonment, the attitude of the public, logistic difficulties may have led the courts in England and Wales to attach a label to what in this country is no more than one of the bases on which a court may decide that a sentence may be personalized. I do not consider that such a basis should be elevated to a principle or that it is correct in fact to describe it as “a principle” at all. This court and magistrates courts must be left free to decide sentences in all the circumstances of a case as they see them. Indeed, I should make it quite clear that there is no principle of sentencing in this jurisdiction which may be described as “the clang of the prison gates principle.”

I must however consider whether in this case there is scope for the sentence to be personalized so that this appellant undergoes a lesser sentence than that imposed upon him by the magistrate. There is no doubt that a custodial sentence is entirely appropriate; its length is the sole question. I must say that I am impressed by the submission by counsel that the Appellant has shown not only remorse by his plea of guilty but also by taking positive steps against a difficult financial background to pay back the money and to rehabilitate himself. He has known, during the period he has been waiting for trial, the position his foolishness has put himself into and that, combined with a comparatively short prison sentence, should drive the point home to him. I consider that members of the public, knowing the efforts the Appellant has made, would also accept that there was a case here for personalization.

I consider justice would be served if this Appellant served a total of one year’s imprisonment. I therefore propose to order that the sentences of 9 months on counts 1 and 2 (embezzlement) be served concurrently and that the sentences on counts 2, 4 & 5 (false accounting) be reduced to 3 months to be served consecutive to the sentence on the embezzlement counts but to be served concurrently with each other, making a total of twelve months in all.

The appeal is allowed to that extent.