CRC, 118 & 119, 93.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Review Cases 118 & 119 of 1993

CASES ON REVIEW

Regina

-v-

FRANCIS HORI (CRC 118/93 HC),

&

Regina

-v-

MONICA MELODY (CRC 119/93 HC)

High Court of Solomon Islands
(Palmer J)

Reviewed: 11th March 1994
By: Palmer J

D.P.P for Prosecution
Mrs Samuels for Francis Hori
J. Wasiraro for Monica Melody

PALMER J: Both cases were heard in the Magistrates’ Court sitting at Auki. They have been brought up to this court for Review under section 50 of the Magistrates' Courts Act. The reason for the review in both cases is exactly the same.

The offences committed in both cases, (which were different offences) involved the use of a weapon. Custodial sentences of 6 months each had been imposed on both cases, both suspended, for two years and one year respectively.

The provisions of the Penal Code (Amendment) (No.2) Act 1987, section 43A (2), makes it crystal clear that where a weapon was used in the commission of an offence, the provisions of section 43A (1) (which provision deals with the power of a Court to suspend a sentence of imprisonment on any offender for a term not more than two years) shall not apply. In other words, a court has no power of suspension where a weapon is used in the commission of the offence.

The learned Director of Public Prosecutions and learned Counsels in both cases do not take issue with the provisions of section 43A (2) of the Amendment Act of 1987. They accept that the learned Magistrate made a mistake in suspending the custodial sentences.

I will now deal specifically with each case separately as the offences committed and the circumstances surrounding their commission are different.

R-v-FRANCIS HORI

The accused was arraigned before the Magistrates’ Court on the 1st of October 1993. At that hearing it was brought to the attention of the learned magistrate, that there was another case involving another defendant, Jeffrey Isiola, which was related to this defendant's case. I am now told by Mrs Samuels that earlier on that day, the defendant, Jeffrey Isiola, had assaulted this defendant with an iron pipe, and it was in retaliation to that, that this defendant had gone to look for Jeffrey Isiola armed with a bush knife to ask for compensation.

At that hearing an application for reconciliation had also been requested under section 38 of the Magistrates’ Courts Act.

The defendant had been charged with three offences, common assault, criminal trespass, and going armed in public.

The learned magistrate accepted the application for reconciliation, for the common assault and criminal trespass charges, and terminated the proceedings in respect of those two charges.

He declined however to accept reconciliation over the third charge of going armed in public. This was proper, as in the circumstances of the case; a bush knife had been used, which was quite serious.

The accused pleaded guilty to the charge, and was convicted.

The facts showed that the accused had gone to the house of a third person, Max Arisi, with a bush knife and challenged him and asked for compensation. The words used were that, if no payment was made, then he will cut Max with his bush knife. The accused was then taken away by villagers in the vicinity. He returned later on that night with a copra knife and acted aggressively at the same place. He was again removed by the villagers.

In his antecedents the accused’s age was put at 25. He came from West Are Are, married with 5 children, and employed as a canoe driver by Malaita Province. It was stated in the records that he was co-operative with the Police.

In his mitigation (unrepresented), he apologised to the Court and added that he was drunk at the time of the commission of the offence.

In passing sentence, the learned magistrate stated:

“First, take it into account seriousness of this offence. You armed with the two offensive weapons and attended home of the complainant at different time. Complainant with his kids in the house. I have no doubt they ·were in fear when you attended their home armed. You were drunk. Not a good excuse. GAP so common in rural areas. Life of villagers must be respected. Appropriate sentence is custodial sentence. 6 months imprisonment.”

The reasons given by the learned magistrate in imposing a custodial sentence of 6 months is justifiable, and in my view not excessive. The offences were committed at the home of an innocent third party, in the presence of his wife and children.

However, he then stated:

“As you admitted it and with good record and co-operate with police I would suspend your term for 2 years.”

The unfortunate error made by the learned magistrate was in assuming that he had a power to impose a suspended sentence.

Secondly, the learned magistrate made an error in not considering the guilty plea, the good record and the co-operation with the police, as mitigating factors, before making the decision whether to impose a custodial sentence or not.

In the reasons given by the learned magistrate for the imposition of a custodial sentence, there is no mention of the above three factors. Had the learned magistrate considered those other three factors, would he still have come to the same conclusion as he did, that a custodial sentence was appropriate?

Magistrates need to be very cautious when dealing with offences involving the use of a weapon. This court has time and again warned the lower courts about the provisions of section 43A (2) of the Penal Code (Amendment) (No.2) Act 1987. I think prosecutors and lawyers should also bear some responsibility in bringing to the attention of the courts the provisions of the above section, so that such oversights or inadvertent errors are minimised.

In reviewing this case I am satisfied that the learned magistrate made a genuine mistake in suspending the sentence of imprisonment. The effect of such a mistake where the learned magistrate had no power to suspend the sentence of imprisonment is that his order of suspension is a nullity. (see Thomas on current sentencing Practice; Release Published November 14, 1990, at page 4060, paragraph D5.2(c)). The custodial sentence therefore should have been served with immediate effect as from the date of conviction, being, the 1st of October 1993. To now cancel the order of suspension would not serve any useful purpose, as the 6 months custodial sentence would have been served as at the date of review, taking into account any possible remissions that may have been given to the accused.

Since this is a review, I'd rather take the approach of re-considering the whole case and asking whether the learned magistrate really had in mind a custodial sentence or a non-custodial sentence, when he imposed the suspension order.

There is no such thing as a perfect sentence in any particular case. However, there is a range within which the court will consider whether a sentence is manifestly inadequate or excessive.

As stated earlier on in this judgment a custodial sentence of 6 months would not necessarily have been called manifestly excessive in my view, such that I would have considered a review of it. On the other hand a non-custodial sentence by way of a fine, taking all the particular circumstances surrounding this case; including, the fact that some sort of reconciliation had been arrived at, and the fact that a guilty plea was entered, that the accused was a man of previous good character and co-operative with the police, would in my view be equally appropriate and not manifestly inadequate, though I accept that would be more on the lenient side of the scale.

In the circumstances surrounding this case therefore, the sentence of 6 months imprisonment is accordingly quashed and substituted with a fine of $200.00 payable within 14 days, and in default, three months to serve in prison.

R-v-MONICA MELODY

The accused was arraigned at the Auki Magistrates' Court on the 28th of September 1993. She was unrepresented in court and pleaded guilty and convicted on a charge of assault causing actual bodily harm contrary to section 238 of the Penal Code. The maximum sentence that can be imposed for such an offence is 5 years imprisonment.

The facts of the offence reveal that the accused had attacked the victim with a stick, hitting her on the head. The victim received injuries to her head, and had to be treated at the hospital. A medical report prepared by a nurse, I presume, who attended the victim was produced in court. The report however was not signed by the nurse who treated the victim. It was witnessed instead by a person named Augustine Baeto. As an aside, such reports should be properly signed and certified by the nurse or doctor making the report. A failure to do so, can result in a rejection of such a report by the court.

The accused was about 26 years of age at the time of commission of the offence. She was married with three children, had no previous convictions and was noted in the record of proceedings as being co-operative with the Police.

In her mitigation, she explained that she was angry with the victim because she had heard that she and her husband had slept together.

In passing sentence, the learned magistrate took into account that she had entered a guilty plea and had no previous convictions. He also noted that the actions of the victim and her husband were not acceptable in custom. However, the learned Magistrate considered the actions of the accused serious enough to warrant a custodial sentence of 6 months. Unfortunately, he went on to suspend it for 12 months, when clearly under section 43A (2) of the Penal Code (Amendment) (No.2) Act 1987, he had no power to do so. The order of suspension accordingly is a nullity. The sentence of 6 months imprisonment therefore should have been served with immediate effect. By the time this case came for review, however, it is clear that any such sentence of imprisonment had it been served on the date of conviction would have lapsed as at the date of review.

On one hand, the mistake must lie where it has fallen. On the other hand, I cannot express any more emphatically that magistrates must try to take more time and care in considering the cases that come before them before passing sentence. It is better to be slow and to be accurate, than to be fast and make mistakes. As a result of a mistaken exercise of power, to a certain extent, justice has not been done.

Magistrates must not be frightened of sending an offender to prison, if the case so warrants it. The use of suspended sentences on the other hand should be very carefully considered.

There is a judicial circular No.1 of 1991, dated the 14th of August 1991 and addressed to all Magistrates by the former Chief Justice, his Lordship Gordon Ward, and headed SUSPENDED SENTENCES, which accurately sets out guidelines as to how suspended sentences should be used. I would ask all Magistrates to refresh their minds by reading through that circular again. Copies are attached for ease of reference.

I have already indicated that the conclusion of the learned magistrate in imposing a custodial sentence was proper. He should have then gone on to consider what an appropriate length of sentence should be. Had he done so, it is my view that a sharp, short shock sentence of 2 to 3 months would have been appropriate. It is wrong in principle to increase the length of the sentence simply because the court intends to suspend it. (Trowbridge [1975] Crim. L.R. 295, Webb [1979] Crim. L.R. 466).

No reason too is given by the learned magistrate as to the reason for suspension. Again it is important to state clearly on the record, the reasons for the suspension.

I note that a fine of $100.00 was also imposed. Did the learned Magistrate feel after all, that a fine would have been more appropriate? On one hand, a fine would have been considered to be on the lenient side. There may be other factors which the learned magistrate may have weighed in his mind which may have influenced him to impose a fine on top of the suspended sentence. Had he imposed a reasonable fine and explained fully why he felt that a fine was appropriate than say a custodial sentence, then it is possible that would have been sufficient.

In the circumstances surrounding this case, it will be unfair to the accused to have the sentence of 6 months enforced with immediate effect or even to substitute it with a sentence of 2 to 3 months at this point of time. Instead, a lenient sentence by way of a fine in the sum of $250.00 will be imposed to reflect in some way, even at this late stage, the gravity of such an offence. Since the accused had paid the fine of $100.00, I now order that she pays the outstanding balance of $150 within two weeks, failing which she will be sent to prison for 75 days.

The custodial sentence of 6 months is quashed and a fine of $250.00 is imposed instead.

(A.R. Palmer)
JUDGE