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Regina v Luilamo [1997] SBHC 78; HC-CRC 001 of 1997 (29 October 1997)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 1 of 1997

REGINA

-V-

GEORGE LUILAMO

High Court of Solomon Islands
(Palmer J.)

Hearing: 28th October, 1997
Sentence: 29th October, 1997

F. Mwanesalua - Director of Public Prosecutions for the Crown
T. Kama for the Defendant

PALMER J.: The defendant entered a plea of guilty to a charge of Misconduct in Office contrary to section 7(a) of the Leadership Code (Further Provisions) Act, 1979 (hereinafter referred to as "the Act"), in the hearing yesterday. The matter was then adjourned for sentence today to give time to the Court to read a similar case of misconduct - Regina v. Geoffrey Siapu [1993] SBHC 14; Criminal Case No. 34 of 1992, judgment delivered on 22nd March, 1993. The adjournment in my respectful view had been worthwhile because one of the charges (the accused had been convicted on a total of 3 charges and fined a total of $300.00) on which the accused in that case had been convicted on was similar to this case - that of failing to provide a statement or make a declaration in respect of business transactions involving a sum of five hundred dollars or more entered into during the period to which such statement relates (section 5(1)(e) of the Act). The defendant had failed to declare the sum of $21,000.00 received by him from South Pacific Development Associates Ltd, a company which he was a part owner of. He was convicted of the said charge after a trial on a not guilty plea and fined $100.00. At the time of the said offence, Mr Siapu occupied the position of a Permanent Secretary.

If comparison is made with the circumstances surrounding this offence, it is my respectful view that it cannot be viewed as being more serious; if anything the facts of this case disclose an offence committed more in the technical sense; that of failing to supply a statement of assets, rather than failing to disclose something which he ought to have done in any event; which is more serious in my respectful view. In the facts of this case, there is no suggestion or evidence to show that he had failed to disclose anything in particular which he ought to have done. When all the mitigating factors raised by Mr Kama are taken into account, the appropriate fine to be imposed in my respectful view must of necessity be much less.

Having so ruled, I wish to point out what I consider to be an inadequacy in the penalty imposed for non-compliance with the requirements of section 5(1) of the Act. The Act only imposes a penalty for non-compliance with the stipulated requirements of section 5(1), but does not address in my respectful view the question of requiring the Leader to file a statement after conviction. So while a Leader may have been convicted for failing to give a statement for the period stipulated in the offence, after his conviction, what then. Is he still required to give a statement? And if he still fails to respond, can he be re-charged for the same offence? As pointed out by the learned Director of Public Prosecutions, this may not be possible if the doctrine of "autrefois acquit and convict" are taken into account. It does appear that the purpose and intent of section 5(1) is to require Leaders to give statements within the stipulated periods. And so if there is a failure to comply then the penalty imposed it seems should not only be to address the failure to give a statement but also to compel Leaders to comply. This can be reflected by a penalty which gives time to the Leader (and this can be done by the Commission or the Court), to give a statement after conviction within say seven (7) days, and if the Leader fails to comply, that there is a monetary penalty of say $10.00 for every day thereafter until the Leader does give a statement. Currently, after conviction, that appears to be the end of the matter as regarding the giving of a statement for the said period stated in the offence (I may be wrong on this and if so I stand to be corrected), unless the Commission decides to carry out its own investigations into the affairs of the Leader. This however normally can only be done if a complaint had been lodged with the Commission. I make clear that this is merely an observation and if there is any value to it then the Commission may wish to take it further.

I am satisfied the appropriate penalty is a fine of $50.00 payable forthwith in default a distress warrant may issue against the accused.

ORDER:

IMPOSE A FINE OF $50.00 PAYABLE FORTHWITH IN DEFAULT DISTRESS WARRANT MAY ISSUE.

THE COURT.