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Director of Public Prosecutions v Kolikisi [1986] SBHC 8; [1985-1986] SILR 150 (10 February 1986)

1985-1986 SILR 150

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No 5 of 1986

DIRECTOR OF PUBLIC PROSECUTIONS

v

KOLIKISI

High Court of Solomon Islands
(Wood C.J.)
Criminal Appeal Case No.5 of 1986

29 January 1986 at Honiara
Judgment: 10 February 1986

Appeal against sentence - whether may increase sentence when accused puts responsibility on another in mitigation then changes story when giving evidence against the other.

Facts:

The appellant appealed against a sentence on the ground of inadequacy. The grounds of appeal were that in mitigation the respondent blamed another man, that on the basis that the respondent would give evidence against the other man the Magistrate dealt leniently with the respondent, that when called to give evidence against the other man the respondent contradicted himself by claiming sole responsibility and that as a result the sentence, though correct at the time, was too short in view of the account subsequently given under oath.

Held:

1. Where an accused who is going to give evidence for the Crown against a co-accused has pleaded guilty and has been sentenced and later at the trial of the co-accused changes his story from that which was given on his behalf by way of mitigation, the court has no right to bring him back to increase his sentence. This is because there must be no suggestion that he was induced to give evidence by getting a shorter sentence or threatened to be brought back and given a longer sentence if he did not adhere to his story. (Stone (1970) 54 Crim. App. R. 364 per Lord Chief Justice followed).

2. It did not matter that in Solomon Islands, unlike in England the prosecution has a right to appeal because in England the judge on his own motion has the right to bring a prisoner back and increase his sentence.

Accordingly, the appeal was dismissed.

Cases considered:

Stone (1970) 54 Crim. App. R. 346

John Freeman for the Appellant
Andrew Radclyffe for the Respondent

Wood CJ: This is an appeal by the Director of Public Prosecutions against a sentence by the Principal Magistrate (Central) on the ground of its inadequacy in all the circumstances.

The respondent pleaded guilty to a count of forgery c/s 329(2) of the Penal Code, a count of obtaining by forgery c/s 338(a) of the Penal Code and a count of false pretences. On the first two counts he was sentenced to 3 months imprisonment on each count to run concurrently and on the third 3 months’ imprisonment to run consecutively to the other counts. This appeal is against the sentences on the first two counts and the grounds of appeal are as follows-

1 .Respondent’s counsel on his instructions while mitigating on his behalf blamed another man.

2. The learned Magistrate, following indications by prosecution and defence, dealt with the respondent leniently on the basis that he would give evidence against this other man.

3. The respondent was called to give evidence against the other man but contradicted his statements to the police by claiming sole responsibility.

4. As a result the respondent received a lenient sentence which was correct on the facts presented to the Court at the time, but clearly too short on the account subsequently given by him on oath.

The Director appeals, as he may do, against sentence in terms of s.282 of the Criminal Procedure Code. No such procedure is available in England but the factual situation which has arisen in this case often does and counsel have referred me to the case of Stone (1970) 54 Crim. App. R. 364. The headnote to the report reads as follows

“Where, prior to the trial of a prisoner, a co-prisoner who is going to give evidence for the Crown against him has been sentenced, but when he comes to give evidence at the trial the co-prisoner fails to adhere to the story put forward on his behalf by way of mitigation and in effect changes his evidence, a judge has no right on that account to have him brought back for the purpose of increasing his sentence.”

Mr Radclyffe has urged me to apply this principle in Stone but Mr Freeman has argued that it should not be applied in Solomon Islands where, unlike England, the prosecution have a right of appeal.

I will first quote a passage from Stone given by the Lord Chief Justice at page 367.

“That there is power in a judge of assize or quarter sessions to bring a prisoner back and increase or decrease the sentence is abundantly true, but this case raises the propriety of enabling an increase to take place merely because the prisoner does not give in evidence the same evidence as was put forward by way of mitigation in his own trial”.

The position would then appear to be that although a prosecutor’s appeal does not lie in England a judge can bring the prisoner back and increase his sentence. In this case the Magistrate had no such power but this Court can increase the sentence on an appeal by the prosecutor. This in my view seems to make Mr Freeman’s argument less tenable. There is no doubt that I can increase the sentence the question of the propriety of doing so remains.

In Stone the Lord Chief Justice went on to say the following-

“The Court would like to say that they in their experience have never come across a case where a judge has had a prisoner brought back and increased the sentence because of a change in his evidence. Indeed, the Court has come to the conclusion that it would be wrong. The Court thinks that for the future it should be understood as a matter of practice that in the case of a co-defendant who pleads Guilty and is going to give evidence for the prosecution, there should be a restriction on the judge’s legal right, and that he should never bring a prisoner back to increase the sentence. .........

The reason why the Court is satisfied that this course is necessary is this. The whole object of sentencing in advance a co-defendant who is going to give evidence for the prosecution is that there should be no suggestion that he is under any inducement whatever to give evidence which will result in his getting a shorter sentence than otherwise, and if this power is allowed to remain.........it will mean that the whole object of sentencing a defendant in advance is defeated, because it could always be said that he was under an inducement, indeed a threat, that if he did not adhere to the story he would be brought back and given a more severe sentence.”

I can see no ground for believing that this principle should not equally apply in Solomon Islands and I accordingly dismiss this appeal.