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Regina v Samo [2008] SBHC 94; HCSI-CRAC 300 of 2005 (12 December 2008)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No: 300 of 2005

REGINA

V

DAVID SAMO

High Court of Solomon Islands
(Naqiolevu, J)

Date of Hearing: 5 December 2008
Date of Judgment: 12 December 2008

For Crown: Mr. R. Iomea
For the Accused: Ms. K. Anderson

JUDGMENT

Naqiolevu J.

1. The accused was originally charged with 9 counts of various offences of Intimidation, Going Armed in Public, Robbery, Demanding Money with Menace on the 23rd of June 2005.

2. On the day of the hearing, the crown filed a Notice of NOLLE Prosequi, under Section 68 (1) of the Criminal Procedure Code for counts 6, 7, 8 and Count 9.

The accused subsequently pleaded guilty to counts 1, 2, 3, 4 and 5.

Facts

3. The facts of the case are that on the 4th of June 2001 at about 8:30pm the victim was sitting in front of his canteen, when the accused drove his vehicle towards the canteen and smashed a bottle of beer on the canteen. The accused then swore at the victim, after which he left and returned with a rifle. On the 6th of June 2001 the accused with a high powered weapon yelled at the victim, at which the victim upon hearing him ran away. The accused then called out to the victim that he would shoot him that night. On the 9th of December 2001 at midnight the accused returned to the victim’s place with a firearm, upon which he fled for fear of his life. The accused was charged with count 1, 2, 3, 4 and 5.

Mitigation

4. Ms Anderson in mitigation submit the accused had pleaded guilty within a reasonable time. The accused was first arrested on the 30th of December 2003 and placed in custody on a Murder Charge.

5. On the 28th of February 2004, he was again arrested in relation to these matters, he was placed in custody until the trial whereupon he was acquitted by the court on the 15th of April 2007, he was then granted bail for these matters. The accused has effectively spent a total of 3 years in custody.

6. The accused is 38 years old, married with one son aged 15 years old. He lives in Malaita but has remained in Honiara while awaiting for the case to be disposed off. The accused is educated to standard 6 primaryschool. The accused has worked at varying position with Solbrew and as a security officer but since injured, when he was shot in the hip has not been involved in perfect physical work.

7. The accused has accepted responsibility for the offence and is remorseful. Ms. Anderson submit that the accused at the time of the offence was of the view that the victim was involved in black magic. The accused is now involved in church activity, he is involved in various activity in the village.

8. Ms. Anderson asked the court to consider the delay issue, he was charged in 2004 and 2008, when he is being proceeded against its 7 years since the offence and he has not committed any offence since then. The court can be satisfied that rehabilitation has taken place, and there is no deterrent effect. Ms. Anderson asked the court to take into consideration, given the several counts, the principle of totality and suggest several sentencing options.

Totality Principle

9. The court having taken into consideration the nature of the offence and the seriousness of the offence. The offence occurred over several days and involved intimidation and the use of a weapon to threaten the victim. The court has considered the accused plea of guilty, and the mitigating circumstances as outlined by his counsel. The court in considering an appropriate sentence will take into consideration the totality principle given the offence involved several counts under a single transaction.

10. The principle requires a Judge to consider when imposing sentencesfor several offences, the sentencing court should stand back and look at the overall picture and decide whether the total of what would be an appropriate sentence is fair. See ([1]) R-v-The Queen,

"when sentence are imposed for numerous offences the sentencing Judge should stand back and look at overall picture and decide whether the total of what would otherwise be the appropriate sentence is fair and reasonable total sentence to impose"

Guilty Plea

11. The accused as submitted by court pleaded guilty at the first opportunity after the charge in this matter was filed. The court consider a guilty plea at the first opportunity reveal remorse for the offence committed.

In Siganto-v-The Queen ([2]) Gleeson CJ, Gummow, Hayne and Callinan JJ said,

"A person charged with a criminal offence is entitled to plea not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and secondly, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence".

12. The court has taken into consideration the accused has spent a period of about 3 years in custody awaiting trial for the offence of murder of which he was acquitted by the High Court a year ago. The accused has remained in custody.

13. The court consider the accused in the five counts of which he has pleaded guilty. Count 1 and 3, attract a maximum period of 3 years, count 2, 4 and 5 misdemeanor.

Rehabilitation

14. The court in considering an appropriate sentence is of the view that the accused chance of rehabilitation is encouraging. In this regard the court has taken various letters of support from his wife who has experienced the real change in his life, and his home environment and the religious and community activity.

15. The court has further considered the letter of support from Father Sam Ata who has seen the change in his life and involvement in church activities and his own letter which describe the change he has experienced for his past life.

16. Rehabilitation if successful constitute a community protection: King CJ in Yardley –v- Betts ([3]) said,

"The protection of the community is also contributed to be the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assures particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induce or assist an offender to avoid offending in future, the protection of the community is to that extend enhanced".

17. The court having considered the circumstances of the offence, the seriousness of the offence. The court having considered the accused plea of guilty and the mitigating circumstances. The previous conviction which is some 10 years ago. The court having further considered the accused has been remanded in custody for this and other offence, the court considered the accused has learnt from his period of incarceration, consider it not appropriate to sentence him to further period of incarnation. The court in all circumstances order the following sentence.

ORDER

Count 1 - Serve sentence to 18 months imprisonment

Count 2 - Serve sentence to 9 months imprisonment

Count 3 - Sentence to 18 months

Count 4 - Sentence to 9 months imprisonment

Count 5 - Sentence to 9 months imprisonment

Count 2 is to be served consecutively to Count 1, Count 3, 4 and 5 are to be served concurrently to Count 1.

All sentence are to commence from the date of original remand in custody.

THE COURT

^[1] (2004) 149 A. Crim R 583
^[2] (1998) 194, CLR, 656
^[3] (1979) 22 SASR 108