HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No: 124 of 2008

NATHAN OLI & FRENCY MANEGAUA

–V-

REGINA

(Naqiolevu, J)

Date of Hearing: 26th June 2008
Date of Appeal:	29th August 2008

For Appellants:	Mr Rodgers Tovosia
For Respondents:	Mr. Jim Seuika

Appeal

Naqiolevu J: 

The appellants on the 11th of April 2008 was convicted on their plea of guilty to seven counts of arson, contrary to section 319 of the Penal Code.

1.	The Principle Magistrates Court on the 11th April 2008 sentenced the appellant to 3 years each in counts 1, 2, 3, 5, 6 and 7 and 4 years for count 4 to be served consecutively to the other counts.

2.	Grounds of Appeal

The sentence imposed by the Learned Magistrate in all circumstances of the case is manifestly excessive, given the court placed too much weight on the seriousness of the offences and not enough weight on the mitigating factors.

3.	The Learned Magistrate erred in law in not taking into account the principle of comparative sentencing. 

4.	The Learned Magistrate did not consider the sentence imposed by courts in the same kind of cases.

5.	The Learned Magistrate erred in law when failing to consider the totality principle and consequently making count 4 cumulative to other counts.

6.	The appellant submit that the sentence imposed in relation to all the charges of arson were excessive in all circumstances when considering the facts of the offence and the mitigating factors relevant to the appellants.

7.	Respondent Submission

Counsel for the respondent in response submit that the Learned Magistrate did not err by imposing a sentence of seven years imprisonment for the counts of arson.

8.	The arson charges relate to the torching of six dwelling houses and a kindergarten class room and comparing the case of R-v- Randy is more serious where the appellant was charged with only two dwelling houses.

9.	The torching of six dwelling houses is more serious than destroying two houses and it would seem in the majority that destroying six dwelling houses represents destroying life time saving of the victims

10.	Furthermore, burning of a kindergarten classroom is more serious offence because it denies and destroy the future of the children in that community.

11.	Counsel submit in relation to the totality principle, the underlying principle is that a sentence should reflect the true criminality of the offence, and seven counts in this case if subject to mathematical calculations is just 1 year for each count. This counsel claim is not excessive and a true reflection of the seriousness of the offence.

12.	The fundamental rule is the court should ensure that both the end result does not exceed what is appropriate punishment for the offenders criminal conduct, and considered as a whole and that the result adequately punishes the offenders criminal conduct from the crimes actually committed.

13.	Counsel conceded that given his submission that the offence are serious because of the number of counts, the sum total of sentence imposed in this case is excessive and in breach of the totality principle.

14.	Counsel suggest that a sentence of two years on the count of arson of the kindergarten class room would have been adequate and a true reflection of the overall criminality of the matter and that the sentence ought to be consecutive to the three years imposed on the other count.

15.	Principle of Law

It is clear that the Appellate Court’s discretion to interfere with the lower courts exercise of sentencing discretion, has been well and truly settled.

The authority for the proposition is the case of ()Berekame-v- DPP where the court said

"A Court of Appeal will not interfere with the trial Judges’ discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because, for instance, the Judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient features of the evidence".

16.	This court is loathe to interfere, or indeed will only interfere with the exercise of the lower courts sentencing discretion, where either or the above principle has not been given proper consideration.

17.	The Learned Magistrate in sentencing the appellant said that six houses were destroyed and part of a kindergarten and the offences were committed as part of a deliberate policy of what elsewhere has been called "ethnic cleansing", driving out settlers from their houses.

Principle of Sentencing

18.	Comparative Sentencing

The principle of comparative sentencing are part of the principle of law in this jurisdiction and the courts are obliged to adopt the principle when exercising the sentencing discretion.

19.	It is important to bear in mind that the importance of "comparative sentencing is that there should be less "objectionable" disparity, in sentencing, provided the sentence imposed are within the range provided by the "comparative sentences" refer, Grey book. 

20.	The court in considering the several authorities in this jurisdiction of sentence imposed for the offence of Arson, In Do’oro –v- R(), the appellant sentence of 4 years was reduced by the High Court to 3 years. Kabui J, as he then was said 

"Imprisonment for four years is I think a little excessive for the arson in the circumstances of the case. I would substitute imprisonment for three years for four years. This is not leniency but giving a sentence that benefits the circumstances of the case"

21.	In R-v-Moula () where three juvenile burnt down a school building worth $355,000. Chief Justice Palmer said, 

"A sentence of around three years would have been the normal range for this type of offence. I bear in mind through the strong mitigating which have been submitted in favour of these accused .for the delaying factors, the sentence is reduced to two years"

22.	The court has further considered the authority of R-v-Mowasio() where Muria CJ as he then was, sentenced the accused to 3 years for burning down a dwelling house and R-v-Mino() where Palmer CJ sentenced the accused to 3½ years for arson where a logging company building worth three quarter million dollars was completely destroyed.

23.	The Court of Appeal in the case of Randy –v- R(), said

"It is true that in a number of cases in recent years in Solomon Islands the court has imposed sentences in the region of three years for arsons. But it is to be remembered that the facts of the arson and the motives for it can vary widely which is no doubt why the maximum is set at life imprisonment"

24.	This case clearly can be distinguished from the appellant case where no force was used, neither any weapon involved, nor were the owners of the houses abducted prior to the house being set on fire.

25.	The court is of the view that there are several clear authority of comparable sentence where the court could have taken guidance in considering the exercise of his sentencing discretion. 

26.	Totality Principle

The principle of totality is clear and applies where sentence are imposed for several offences, the sentencing Magistrate should stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is fair and reasonable.

27.	The principle was succinctly stated by the High Court of Australia in Mills-v-the Queen() where the court said,

"In our opinion, the proper approach which His Honour said has taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all these offences of armed robbery in one jurisdiction and had been sentenced at one time"

28.	In Postiglion –v- The Queen() Kirby J said 

"that a sentence may offend the totality principle because, looking at the prisoner’s criminality as a whole, the outcome is in its totality, not "just and appropriate". The last mentioned conclusion will more readily be reached where the Judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitate and reform".

29.	The Learned Magistrate as clear from his sentencing remark approached the sentence by taking into account the previous good character of the appellants, their plea of guilty and the length of time spent in custody. Clearly no consideration was given to the principle of comparative sentence in the jurisdiction.

30.	The Learned Magistrate in his approach to the imposition of a sentence of 4 years consider the destruction of the kindergarten as of very serious nature. The court whilst considering the destruction of the kindergarten as serious must compare this with the nature of the offence the circumstances in existence at the time and the costs to the community.

31.	The court is of the view that the principle of comparative sentencing and indeed the totality principle as stated above has not been given consideration by the lower court. It seems to me that this is clear from the decision of the Learned Magistrate. The court further has taken into consideration crown counsel conceded that the principle has not been considered by the Learned Magistrate.

32.	The court is of the opinion that the effect of not taking the principle into consideration in his sentencing discretion the Learned Magistrate by imposing 3 years for each count of 1, 2, 3, 5, 6, concurrently to each count and the imposition of 4 years for count 4 further that it be served consecutively, resulting a total of seven years imprisonment, has imposed a "crushing sentence." 

The court in all circumstances allow the appeal and quash the sentence imposed by the Magistrate Court of the 11th of April 2008 and make the following orders:

ORDER

1.	Appeal Allowed.

2.	Quash the sentence of 7 years and substitute by the following.

3.	
Count 1		2 years	
Count 2		2 years	
Count 3		2 years	
Count 4		2½ years	
Count 5		2 years	
Count 6		2 years	
Count 7		2 years	

Count 1, 2, 3, 5, 6 and 7 to be served concurrently to each count and concurrent to count 4. Total sentence to be served is 2½ years to commence from the 8th September 2007.

THE COURT