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Regina v Houasia [2001] SBHC 140; HC-CRC 207 of 2001 (17 September 2001)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 207 of 2001 (Review)

REGINA

-V-

FRANCIS HOUASIA

High Court of Solomon Islands
(Palmer ACJ)

Hearing: 17th September 2001
Judgment: 17th September 2001

Director of Public Prosecutions (Francis Mwanesalua for the Crown)
John Wasiraro for the Defendant

Palmer ACJ: The Accused, Francis Houasia had been convicted by the Magistrates Court on 8th April 2001 for the offence of being in possession of a firearm, being a pump action gun contrary to the Firearm and Ammunition Act (Cap. 80). He was fined $700-00 for the offence. I have called for this file from the Magistrates Court pursuant to section 47(1) of the Magistrates’ Courts Act (Cap. 20) and directed that the matter be listed for submissions from Counsels before embarking on the review of this case. That was done on 20th August 2001. Unfortunately, Accused was not served. Case was further adjourned to 3rd September 2001. Again it had to be adjourned as Accused was not served. Only when Court advised that the Head of Prosecution would be required to attend Court and explain why no service could be effected was the Accused served and now appears before this Court today.

I have listened carefully to submissions of learned Counsel for the Accused. The thrust of his submission is that the sentence imposed by the learned Magistrate was appropriate in the circumstances of this case bearing in mind the mitigating factors placed before him. That is, being a first offender, unemployed, married with three children, that the firearm did not belong to him and that he entered a guilty plea.

The learned Director of Public Prosecutions on the other hand had highlighted some important areas which this court should weigh in considering whether or not to impose a custodial sentence. He pointed out that this was a serious offence in the light of the fact that this Accused did not have a firearm licence. He also pointed out the background circumstances in which this country had come through in the last two or so years. Also that the Accused was drunk at the time he was found with this weapon. He emphasized the importance of deterrence, of the need to protect the public from such behaviour and that a firearm is a lethal weapon.

This Court has power to review sentences imposed by the Magistrates’ Courts under section 47(1) of the Magistrates’ Court. Those powers include the power inter alia:

“(a) subject to any enactment specifying any penalty, impose, reduce, enhance or alter the nature of any sentence:

Provided that -

(i) no sentence shall be imposed which the Magistrate’s Court could not have imposed; and

(ii) no order shall be made under this paragraph to the prejudice of any person unless he has had an opportunity of being heard either personally or by counsel or solicitor in his defence;”

The power to review is not to be exercised lightly. It is only to be exercised where the Court is satisfied inter alia that a sentence imposed by the Magistrates’ Court is manifestly inadequate or that a manifest error of law on the face of the record had been committed. The courts below have been given sentencing guidelines and unless there is good reason for departing from the norm, the courts below are obliged to conform.

In this particular instance, it has been made very clear and there have been previous instances of cases coming before this Courts in particular since the beginning of the armed rebellion and upheavals faced by this country that those prosecuted for firearm offences must be prepared to face custodial sentence. Everybody has been making calls for the return of firearms and warnings have been issued countless times in the media, by the Police, the Peace Monitoring Council (PMC), Church groups, civil groups, the women and even little children. There is nothing further this Court can add, simply that any persons prosecuted and brought to this Court for such offences must face custodial sentence. The simple advice is return the rifle if it comes to your possession, if not don’t touch it and report it. Many people don’t seem to understand that a rifle is a two-edged sword. Whilst it can be used to kill ones enemy, it could also if not handled properly kill ones own family members. We do have laws which govern the possession and use of firearms. They are there for a purpose; to ensure that as much as is possible rifles are only handled by responsible people and to be confined to appropriate usages.

I have listened carefully to the reasons given by learned Counsel for the Accused and I thank him for taking the time to come to Court and making submissions on behalf of the Accused. Unfortunately, I am not convinced that the sentence imposed was appropriate in the circumstances. It is as far as I am concerned manifestly inadequate. There has been a very recent case that has come before this Court involving an ex-militant (Patrick Baega -v- Regina, CRAC 28 of 2001, judgment delivered on 3rd April 2001) who was charged and convicted for a similar offence. The rifle was found in his possession in the vehicle he was driving during a Police Check. There was some suggestion that the weapon was necessary for purposes of security but that was rejected by this Court. Although this Accused is not an ex-militant, (I accept that submission from learned Counsel) the circumstances in which he was found with the weapon is of serious concern. He was drunk or to some extent under the influence of alcohol and had no reason to carry it in his possession. The sentence imposed must reflect the concerns of members of the public regarding this kind of weapon. It is clear this kind of weapon is normally kept by Police only and not for members of the Public. I am satisfied a custodial sentence is appropriate and I do so order. The sentence imposed by the Magistrates’ Court is altered by having it quashed and substituted with a custodial sentence of six months with effect from today.

The fine of $700-00 is to be returned to the Accused.

THE COURT