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Tala v Regina [2005] SBHC 89; HCSI-CRAC 328 of 2005 (17 August 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 328 of 2005

ERIC TALA

-v-

REGINA

Date of Hearing: 12^th August 2005.
Date of Judgment: 17^th August 2005.

M. McColm for the Crown.
M. Swift for the Appellant.

JUDGMENT

Kabui, J.: This is an appeal against sentence filed in the Magistrate’s Court on 20^th May 2005 by the appellant, Mr. Tala. The Magistrate’s Court sitting in Honiara sentenced him to serve a total of ten months imprisonment for indecent assault and defilement on 12^th May 2005, in addition to twenty-two months imprisonment he was already serving at the time of his sentence. The Magistrate’s Court ordered that the sentence of one month for indecent assault be made consecutive to the sentence of nine months for defilement. The Magistrate’s Court ordered that the total sentence of ten months was to run consecutively with the sentence of twenty-two months previously handed down by the Magistrate’s Court for previous offences committed by the appellant.

The grounds of appeal.

The grounds of appeal are as follow-

(i) The learned Magistrate imposed a sentence which is manifestly excessive in all the circumstances of the case and the circumstances of the offender.

(ii) The learned Magistrate erred in law in failing to sentence in accordance with the principle of totality;

(iii) The learned Magistrate erred in law by taking into account irrelevant consideration in determining the sentence.

I will take each of ground of appeal and deal with it accordingly.

The sentence being manifestly excessive.

On the facts presented to the Magistrate’s Court on the indecent assault charge, it was shown that the appellant was drunk at the relevant time. At Obobo village, the appellant called for the victim to wait for him but she and two other girls fled and the appellant waited for them in a kitchen belonging to Titus Salani. He later joined the victim and the two girls and they all walked to Turarana village. In the evening, the victim attended a dance in the village. After the dance, he followed the victim to her house and there he hugged, cuddled and kissed her without her consent. The facts regarding the defilement charge showed that the appellant grabbed the victim and asked her for sex. They had sex on a spot by the Valekoilo stream. At that time the victim was thirteen years of age. I do not think a sentence of one month imprisonment imposed by the Magistrate’s Court is excessive. In fact, it is lenient. Also, I do not think a sentence of nine months imprisonment is excessive. Again, in fact, it is lenient. The Magistrate’s Court had taken into account the guilty pleas of the appellant, his youth and his family circumstances before imposing the sentences he imposed. I noticed that Counsel, Miss Swift, made no submissions on the question of excessiveness of the sentences imposed although the issue was a ground of appeal. I make no comment on that than to say that the main thrust of the appeal was the argument on the omission of the application of the totality principle.

The totality principle.

This issue was ground two in the appeal. Submissions by Counsel, Miss Swift, concentrated on this issue at length. In fact, this was the only issue argued by Counsel in this appeal. In that regard, it is an important issue. This point came up before me in Lawrence Kelesiwasi v. Regina, Criminal Appeal No. 326 of 2004. The accused had pleaded guilty to four charges brought against him. I sentenced him for eighteen months imprisonment for the offence of intimidation, six months imprisonment for common assault, three months imprisonment for discharging firearm within town boundaries and two years imprisonment for assault causing actual bodily harm. I ordered that these sentences to run concurrently so that the effective sentence was a term of two years imprisonment. The issue was whether I should make the concurrent sentence I imposed concurrent or consecutive with the then existing sentence of five years imprisonment previously imposed by the Magistrate’s Court being served by the prisoner. I decided to make it concurrent with the then existing five years sentence of imprisonment on the ground that the offences in respect of which the accused pleaded guilty before me belong to the same group of offences for which he pleaded guilty and sentenced by the Magistrate’s Court in terms of space of time and the opportunity to plead guilty in the Magistrate’s Court together with the offences for which he was already serving a sentence of five years imprisonment. If I did not do that, the prisoner would have to serve seven years imprisonment as a total punishment. I applied the totality principle in favour of the prisoner so that at the end of the day, the prisoner was to serve five years imprisonment only and not seven years. Iam being asked here to apply as an appellate court the same principle to offences which occurred in 2002 and 2003 which could have come together before the Magistrate’s Court in the first place but for some reason came to the Magistrate’s Court at a later date and required further sentencing. In R v. Millen (1980) 2 Cr. App. R. 357, (also cited at 1041 of Encyclopaedia of CURRENT SENTENCING PRACTICE), the appellant had been sentenced for robbery and other offences to five years imprisonment with a suspended sentence of two years imprisonment activated consecutively. A little later he appeared before another judge who sentenced him for three years for burglary. He appealed on the ground that the last judge was wrong in sentencing him to a total of ten years altogether. Lord Justice Dunn as quoted said-

"...The sole ground of appeal against the total sentence of ten years which has been put forward very realistically on behalf of Millen by Mr. Thompson is that it offends against the principle of totality Mr. Thompson says that in failing to do that the learned judge...erred in principle, and that the sentence of three years for the burglary, although he does not suggest that it was inappropriate, in the circumstances of the burglary should have been made concurrent with seven years’ imprisonment, so that the appellant would serve a total of seven years instead of a total of ten years. We think that the learned judge failed to have regard to the principle of totality. He should have looked at the total period which this man was to serve for the offences of which he had previously been convicted as well as the matters the learned judge was currently dealing with..."

The difference of course is that in this appeal the terms of imprisonment were expressed in months and not years. The sentence of twenty-two months when converted becomes one year and ten months. Add another ten months to that total sentence, the total sentence becomes thirty-two months which become two years and eight months when converted. The learned Magistrate in this case did not deal directly with the issue of totality of sentence though impressed upon him by Counsel for the defence. However he did the correct thing by imposing a consecutive sentence which was amenable to being treated as concurrent to the then existing sentence of twenty-two months being served by the appellant at that time. I do not think it is necessary to reduce the nine months imprisonment for defilement as requested by the appellant any further in view of the fact that I have already regarded that sentence as being lenient. The learned Magistrate however did fall into an error by not treating the second consecutive sentence concurrent with the previous and existing consecutive sentence of twenty-two months. I therefore quash the order of the learned Magistrate making the second consecutive sentence of ten months consecutive to the consecutive sentence of twenty-two months and the order by substitute that the consecutive sentence of ten months imposed by the learned Magistrate be made concurrent with the existing consecutive sentence of twenty-two months. I order accordingly. The effective sentence therefore remains twenty-two months imprisonment. Ground of appeal three is no longer necessary to consider in view of the above order. The appeal is therefore allowed.

F.O. Kabui
Puisne Judge