IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 12 of 1998

REGINA

-v-

KELLY DENNIE, KENAZO MAEKA AND TEDDY WEBA (WAIBA)

High Court of Solomon Islands 
(Kabui J.) 
Criminal Appeal Case No. 12 of 1998

Hearing: 29/5/98
Judgment: 3/6/98 

Mr. S. Watt for the Appellants 
Mr. F. Waleanisia for DPP 

JUDGMENT

KABUI J.: The appellants together with one Biari Tioni pleaded guilty on 17th April, 1998 to committing the offence of burglary, contrary to section 292(a) of the Penal Code in the Gizo Magistrate Court. The offence was committed against one Nira Viga on 15th March 1998 at Paradise Village in the Western Province. The appellants and one Biari Tioni were sentenced by the Magistrate Court to eighteen months imprisonment each. It is against this sentence that the appellants have appealed to this Court. The fourth prisoner one Biari Tioni has not appealed against his sentence. The facts are briefly these. The date of the offence was Sunday 15th March, 1997. At Paradise Village, Nira Viga had locked his house after dark and left to attend church service. His house is of local materials. On his return he found his house had been broken into and entered. His belongings were also in a mess. The matter was then reported to the Police. One Biari Tioni knew Nira Viga well. Together with the appellants they had boarded an outboard motor canoe and travelled to Paradise Village. On arrival at the village, the second appellant remained with the canoe. The first and third appellant together with one Biari Tioni went to Nira Viga’s house. Who did what at the house is not stated in the facts before the Magistrate. However, it was discovered that one of the rooms had been broken into and entered and the sum of $19,263.00 had gone. The sum recovered by the Police was $6,685.00. The appellants and one Biari Tioni were not represented by Counsel in the Magistrate Court. Nothing was said in mitigation apart from the first appellant saying that they had taken only $10,000.00 and not $19,000.00. The appellants are first offenders. The first appellant is said to be 16 years and married without children. The second appellant is said to be 22 years. The third appellant is said to be 17 years. All are unemployed. Apart from the first appellant, the other two are single.

The petition of appeal was filed by their Solicitor, Mr. Watt, on 21st day 1998. The appeal is against sentence upon these grounds - 

(1) that his Worship did not have the opportunity of considering a number of significant mitigating factors which were to be put before the Court as a consequence of the Prosecutor’s failure to notify the Petitioners’ appointed solicitor that the Petitioners were to appear in Court on the said date. The Prosecutor was aware of the fact that the Petitioners had appointed a solicitor to act on their behalf. 

(2) that the sentence was disproportionate to the offence charged taking into consideration the true facts surrounding the offence. 

Mr. Watt points out that the Police Prosecutor at Gizo did not inform him of the trial of the appellants on the 17th April, 1998 and so did not represent them in Court. The Magistrate therefore did not have the benefit of his submissions on matters of mitigation. He further points out that according to the court record, the Magistrate made no reference to the provisions of the Juvenile Offenders Act of 1972. He argues that the Magistrate should have considered the relevant provisions of the Juvenile Offenders Act before considering what appropriate punishment should be meted out against the appellants. He points out that the most important mitigation factors are age and they being first offenders. Although, he says, the Magistrate did consider these factors he did not do so in the context of section 12(2) of the Juvenile Offenders Act. This subsection states - 

“No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other ways specified in section 16”. 

Section 16 referred to in this section states - 

“Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt the court shall take into consideration the manner in which, under the provisions of this or any other Acts or law enabling the court to deal with the case, the case should be dealt with, and, subject to such provisions, may deal with the case in any of the following manners or combination thereof, namely - 

(a). by dismissing the case; or 
(b). by discharging the offender on his entering into a recognizance, with or without sureties; or 
(c). by dealing with the offender under the provisions of the Probation of Offenders Acts 1971; or 
(d). by committing the offender to the care of a relative or other fit person; or 
(e). by ordering the offender to pay a fine, damages or costs; or 
(f). by ordering the parent or guardian of the offender to pay a fine, damages or costs; or 
(g). by ordering the parent or guardian of the offender to give security for his good behaviour; or
(h). by directing that he be released on his entering into a bond to appear and receive sentence when called upon; or 
(i). by committing the offender to custody in a place of detention; or 
(j). where the offender is a young person, by sentencing him to imprisonment; or 
(k). by dealing with the case in any other manner in which it may be legally dealt with: 

Provided that nothing in this section shall be construed as authorising the court to deal with any case in any manner in which it could not deal with the case apart from this section.” 

Not only that the appellants are young persons but they are of good character without previous convictions. He points out that there being no detention centre for juveniles in Solomon Islands; the Magistrate should have considered sentencing options carefully because the only alternative is Rove Prison. It is undesirable for juveniles to mix with hardened criminals. The crime of burglary, he says, is not a grave issue under the Juvenile Offenders Act 1972 and yet the appellants were detained by Police for 14 days in Police custody. The other point, he says, is that the appellants were not the ring-leaders in the commission of the burglary. They simply went along with one Biari Tioni’s suggestion to go to Paradise Village and to steal from Nira Viga’s house. They never “planned” the commission of the offence of burglary in the strict sense of the word. One Biari Tioni was obviously the ring-leader. The original idea was to go fishing but they subsequently deviated from this at the suggestion of one Biari Tioni. Although the amount of money was put at $19,000.00 this was not conclusively proved by the Prosecution. The amount recovered was $6,685.00. This was seventy-five per cent of the amount allegedly stolen. He says the appellants co-operated well with the Police in their investigation and should not have been detained for 14 days. In fact, the first appellant (Kelly Dennie) had given his statement to the Police before his detention. He says custodial sentence would obviously have negative effect on the appellants and their families. The appellants are all village boys. The first appellant’s parents are incapacitated. As a result, the first appellant gave up his job in Honiara to return home to look after them. Mr. Watt further points out that the facts produced by the Prosecution to the Magistrate Court do not reflect the whole truth about the appellants. The facts contained in the caution statements were not accurately given to the Magistrate so that he would have a total and clear picture of each of the appellant’s circumstances. The final points Mr. Watt makes are that the sentence imposed is disproportionate to the offence committed. Also, there were no aggravating factors involved in the commission of the burglary. All in all, the sentence of eighteen months imprisonment in each case is excessive. It is appropriate to take each appellant’s case and to examine it one by one. They were all jointly charged with one offence and pleaded guilty together. There is no disparity in the sentence passed in each case but certainly there are differences in age together with other factors. 

The First Appellant (Kelly Dennie).

He is 16 years old, unemployed with no previous convictions. He told the Magistrate Court in mitigation that they had taken way $10,000.00 and not $19,000.00. The sum of $1,000.00 was recovered from him. Nothing more is said about him in the Court record. In his caution statement produced by Mr. Watt to this Court, the following additional facts have been revealed. The offence was not planned before they set out for Paradise Village. The idea to steal from Nira Viga’s house came up whilst out at sea. It was one Biari Tioni’s idea because he knew where the house was and where the money was kept. He and the third appellant (Teddy Waiba) accompanied one Biari Tioni to Nira Viga’s house. It was one Biari Tioni who broke into the house and removed the money. They returned together to and boarded the outboard-motor canoe and left. It was one Biari Tioni who broke open the box containing the money. The money was shared equally amongst them. His share was $4,748.00 but later corrected it to $4,815.75. When interviewed by the Police, only $1,000.00 was left. He left Honiara because he was made redundant by his former employer, Kitano Construction Company Ltd. He is married but without children. 

The Second Appellant (Kanazo Maeke). 

He is 22 years old, unemployed with no previous convictions. A fishing trip had been planned earlier in the day but was altered by one Biari Tioni’s idea to go and steal from Nira Viga’s house at Paradise Village. He was the driver of the outboard-motor canoe. He looked after the canoe whilst the others went to Nira Viga’s house. The sum of $1,800.00 was recovered from him. In his caution statement produced by Mr. Watt to this Court, the following additional facts have been revealed. He had lent his torch for the journey to Nira Viga’s house. The box containing the money was broken open and thrown into the sea. The money was then shared. His share was $4,700.00. He had only $1,900 left when interviewed by the Police. 

The Third Appellant (Teddy Waiba). 

He is 17 years old, unemployed with no previous convictions. The sum of $2,000.00 was recovered from him. In his caution statement produced by Mr. Watt to this Court the following additional facts have been revealed. It was one Biari Tioni who suggested that they go to Paradise Village to steal from Nira Viga’s house. He went with one Biari Tioni and the first appellant to Nira Viga’s house. He and the first appellants were the lookouts whilst one Biari Tioni broke into the house and took the money. The amount counted was $19,263. The money was shared equally being $4,815.75 each. The money was the property of the Church (CFC). 

Mr. Waleanisia for the Crown attacks the appeal against sentence in that ground (1) bears no substance within the terms of section 283(1) of the Criminal Procedure Code. That subsection states 

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such plea by a Magistrate’s Court, except as to the extent or legality of the sentence”. 

He argues that there is no legal obligation upon the Prosecution to inform the Solicitor for the appellants of the date of hearing. It is the responsibility of the accused persons to seek legal representation before the plea is taken. It is therefore not right to ague this lack of opportunity for legal representation on appeal. Ground (1) of the appeal is therefore totally irrelevant to the appeal against sentence. I think Mr. Waleanisia is correct in terms of section 285(1) of the Criminal Procedure Code. That subsection states - 

“Every petition shall contain in a concise form the grounds upon which it is alleged that the Magistrate’s Court from the decision of which the appeal is lodged has erred”. 

However, the appeal in my view can stand on ground (2) although it is worded in a rather ambiguous way. At least, it points to an error committed by the Magistrate in terms of section 285(1) above. Mr. Waleanisia does not however object to ground (2) of the appeal. However, he objects to the admission of copies of the caution statements of the appellants recorded by the Police on the ground that they were not evidence before the Magistrate. This Court however admitted this evidence by leave under section 285(6) of the Criminal Procedure Code. That subsection states - 

“Except by leave of the High Court it shall not be lawful for the appellant on the hearing of the appeal to allege or give evidence on any ground of appeal not included in the petition or in the addition grounds, if any, filed under subsection (4)”. 

The Court believes it is upon the Prosecution to produce all the relevant facts to the Court as Officers of the Court. This burden is heavier when the accused persons are not represented by Counsel and are pleading guilty to serious offences under the Penal Code. Justice requires that this be done. He further says that the sentence imposed on each of the appellants by the Magistrate was adequate and not excessive. He therefore supports the sentence imposed by the Magistrate on each of the appellants. 

The law is that every person who actually does the act or makes the omission which constitutes the offence and every person who aids and abets another person in committing the offence is deemed to have taken part in committing the offence and be guilty of the offence. (See S.21 of the Penal Code). The appellants are therefore just as guilty of burglary as one Biari Tioni who is said to be the ring-leader in the commission of the offence. This is obviously the reason why the Magistrate had imposed eighteen months imprisonment in each case. The second appellant, Kanazo Maeka is 22 years old and therefore is not a young person within the meaning of the expression “young person” under section 2 of the Juvenile Offenders Act 1972. In fact, he is the oldest of them all. Clearly, he had no sense of responsibility and was easily swayed by one Biari Tioni who is younger than himself by one year. I have taken into account all that have been said in his favour by Mr. Watt. I have also taken into account the fact that Nira Viga was away from the house when the burglary was committed. I would therefore quash the sentence of eighteen months imposed by the Magistrate Court and substitute therefor a sentence of twelve months imprisonment. As regards the first appellant (Kelly Dennie) and the third appellant (Teddy Waiba), the Order of the Court is that the sentence of eighteen months imprisonment in each case be quashed. In substitution therefore, I direct under section 16(h) of the Juvenile Offenders Act 1972 that both be released from prison on entering into bond each to appear and receive sentence when called upon within a period of twelve months from the date of the sentence imposed by the Magistrate Court. The bond is to be prepared by the Solicitor for the appellants and that the originals be filed with the Registrar of the High Court. 

F.O. KABUI
JUDGE.