HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal No. 496 of 2005.

TIMOTHY INIFIRI

–v-

REGINA

HIGH COURT OF SOLOMON ISLANDS.
(KABUI, J.).

Date of Hearing: 24th March 2005.
Date of Judgment: 31st March 2005.

R. Ziza for the Appellant
P. Bannister for the Crown

JUDGMENT

Kabui, J. This is an appeal against sentence. Counsel for the appellant filed this appeal on 1st November 2004 in the Magistrate Court on the ground that the sentence of two years and six months imprisonment imposed by the learned Magistrate was manifestly excessive in the circumstances of the case.

The facts on the record.

In May, 2003, the appellant went to James Fang who operates a retail shop at Chinatown and James Fang that he could buy cigarettes from Sullivans Limited at a special price of $18,000.00 wholesale for five cartons. The appellant was then a customs officer responsible for bonded warehouses for importers of goods in Honiara. Sullivans Limited and Solomon Islands Tobacco Company Limited (SITCL) each operates a bonded warehouse in Honiara. Goods cannot be released from the bonded warehouses unless with the authority of the Department of Customs and Excise. James Fang decided to follow up with the appellant the information given by the appellant but the appellant told him to wait because no cigarettes were in stock. On or about 3rd June 2004, the appellant returned and told James Fang that cigarettes were then in stock and available. The appellant told James Fang to pay $18,000.00 by bank cheque made payable to SITCL which James Fang did. James Fang gave the bank cheque to the appellant who said that he would produce the cigarettes later in the day. In the meantime, the appellant told SITCL that he was doing the arrangement for twenty cartons cigarettes to be delivered to Sullivan’s Limited and asked someone in SITCL to organize the paperwork. The appellant collected the twenty cartons of cigarettes on 4th June 2004 and the invoice for $37,000.00 from SITCL after signing the invoice. Later that day, the appellant went and delivered five cartons of cigarettes to James Fang and gave an invoice from SITCL made out to Sullivan's Limited for $18,000.00. The payment for the twenty cartons of cigarettes was made by the appellant to SITCL by a bank cheque in the sum of $37,000.00 to make it appear that Sullivan’s Limited had paid for the cigarettes. In fact, Sullivan’s Limited had paid nothing and received no cigarettes. What happened in fact was that the appellant had sold the cigarettes to retailers having deceived SITCL that the release of the cigarettes was a genuine one. On the 5th June 2004, a deposit of $21,000.00 was made into the appellant’s bank account. The balance in the appellant’s account was only $410.00 at that time. The balance in a joint account with his wife stood at $209.00. So the deposit of $21,000.00 was the proceeds of the sale of the cigarettes.

Is the sentence of two years and six months manifestly excessive in the circumstances of this case?

The appellant was charged for simple larceny, contrary to section 261(1) of the Penal Code Act (Cap. 26) (the Code) and pleaded guilty to that charge on 10th August 2004 before Mr. Makin, a Principal Magistrate. The facts of the case were read out to Ms. Hamilton-White, another Principal Magistrate, on 13th October 2004 and the facts were accepted by the defence. The mitigation submissions were also made to her in court. The sentence was passed by Mr. Makin after reading the facts and the mitigating factors on 20th October 2004. He was the Magistrate who had earlier taken the appellant’s guilty plea. Ms. Hamilton-White should have been the sentencing Magistrate as she heard and took the facts and submissions in mitigation. It was therefore a case where one Magistrate entered the plea of guilty and the case was adjourned. When it resumed before another Magistrate, that Magistrate heard and took down the facts and facts in mitigation and the matter was again adjourned. When the hearing resumed, the Magistrate who had earlier taken the guilty plea simply read the facts and facts in mitigation already on the file and passed sentence. It can therefore be argued that the sentence passed was not based upon any hearing by Principal Magistrate Makin on 20th August 2004 and should be set aside. That is however another matter. The appellant did not raise this point in this appeal. The maximum sentence for simple larceny, contrary to section 261(1) of the Code is five years imprisonment. So the sentence of two and half years is one half of the maximum penalty prescribed by law. Why then is it manifestly excessive? This is a subjective argument on the part of the appellant. The Court will approach this issue on an objective footing, that is, looking at the facts of the case to identify any errors, if any, committed by the learned Magistrate so as to decide whether or not to review the discretion of the learned Magistrate to pass the appropriate sentence in this case. The learned Magistrate did take into account all the mitigating factors, including the guilty plea before passing sentence. The mitigating factors were a guilty plea, good character, co-operation with the police, family circumstances, good work record and personal details. It seems that the learned Magistrate simply glossed over the other mitigating factors other than the guilty plea which he mentioned. This is understandable because the learned Magistrate regarded the position of the appellant being a customs officer as one involving trust and responsibility. That is, the appellant abused his position as a government officer in whom much trust had been placed by the public service. However his position is unlike a trust relationship between master and servant, teacher and pupil, parent and child etc. The learned Magistrate also placed emphasis on the protection of the public service system against corrupt officials abusing the system for personal gain. The learned Magistrate was entitled to do what he did in passing the sentence of two years and six months to reflect his view of what should be the appropriate sentence that he should pass which he did and done. However, there was another person with the appellant who had gone with the appellant to collect the cigarettes from the SITCL bonded warehouse. This person was Luke Kuma who seemed to have represented himself as acting for Sullivan’s Limited, intending to purchase the cigarettes from SITCL allegedly based on the local purchase order made in April, 2003. There was also someone from SITCL who did the paper work upon which the removal of the cigarettes from SITCL bonded warehouse was allowed. There is no evidence to show that the appellant was the ring-leader of the scheme to release the cigarettes from the bonded warehouse. Luke Kuma has not been charged for anything in relation to the incident or anyone else from SITCL. The appellant, in his mitigation, alleged that Luke Kuma was the one who benefited from the twenty cartons of cigarettes. The appellant denied benefiting from the cigarettes although $21,000.00 deposit had been made in his bank account at the time of the commission of the offence. The price at which James Fang bought five cartons of cigarettes must have been $3,600.00 per carton. There is no evidence to show that the remaining cartons were sold at the same price and by whom they were sold. Assuming that the appellant had taken $21,000.00, who else, may I ask, would have benefited from the proceeds of the sale of the remaining fifteen cartons of cigarettes? Luke Kuma is a clear suspect. It is possible that the sale price of the remaining fifteen cartons of cigarettes could have been less or more in the black market than the sale price quoted to James Fang. So the figures do not add up neatly for the purpose of apportionment of benefit arising from the proceeds of sale at the end of the day. It is possible to think that it is unjust to treat the appellant as the only perpetrator and to punish him accordingly as the principal in the first degree. However, this could well be an assumption on my part because the question still remains as to why he did not reveal the role Luke Kuma played, if any, in the incident to the police and the benefit derived from it. The proceeds of the disposal of the remaining fifteen cartons of cigarettes and who are the beneficiaries can only be anybody’s guess. Is the appellant deliberately protecting Luke Kuma, and if so, for what reason? Is he still benefiting from the proceeds of the disposal of the remaining fifteen cartons of cigarettes after the event or not? There are these open questions without answers. In this regard, the learned Magistrate was entitled to accept the facts as they were presented by the prosecutor and is not entitled to assume facts. The other consideration is the fact that the appellant had lost his job as a customs officer after twenty years of service. This is devastating for him. He is now unemployed. He has a wife and family to feed and children to educate without a steady salary from his previous employment. He brought self-destruction to himself and his family. The appellant is essentially a good man but for the mistake he made. He has paid dearly for his mistake by the loss of his job being his livelihood. Again, the learned Magistrate undervalued this aspect in mitigation. There was also the guilty plea which was acknowledged by the learned Magistrate but given no credit by the learned Magistrate. The appellant was not asking this Court to set aside the sentence imposed but that the sentence is too long for him to be imprisoned. I will reduce his sentence by six months with the result that his sentence will now be two years imprisonment. I will however suspend under section 44 of the Code the balance of the sentence of two years imprisonment for one year with effect from the rising of the Court. The appellant has already served five months and eleven days in prison of his two years sentence. The reason for suspending the sentence is this. The appellant is essentially a good citizen. He has lost his job in the public service which he had for twenty years as a result of the commission of the offence. He has a wife and children to care for though his wife is a school teacher. The children are at school and school fees are to be paid. The result of his action is but devastating for him personally. The fact he was sent to prison for what he did speaks for itself in terms of the seriousness of the offence committed and the abhorrence of society in that regard. The possibility of re-offending is also remote in his case. The fact that I have decided to suspend the balance of his sentence for one year does not in any way diminish my common stand with the learned Magistrate that stealing out of the system in any organization cannot and must not be tolerated. I have acted out of mercy in the circumstances of this case. In the result, the appeal is allowed. The orders of this Court are-

1. The sentence of two years and six months is quashed and substituted therefor, a sentence of two years imprisonment;

2. The balance of the sentence of two years imprisonment yet to be served is suspended for one year with effect from the rising of the Court;

3. The appellant be released from the Rove Prison with effect from the rising of the Court.

Section 44(6) of the Code has been explained to the appellant as to the effect of section 45 of the Code.

F.O. Kabui
Puisne Judge