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Sahu v Regina [2012] SBHC 122; HCSI-CRC 504 OF 2011 (3 October 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 504 of 2011

GEORGE BENTLY SAHU\

-V-

REGINA

Date of Hearing: 3 October 2012
Date of Judgment: 3 October 2012

Wayne Ghemu for the Appellant
Nelson Ofamana Dhita for the Respondent

Appeal against conviction abandoned.
Appeal against sentence:
Ground 1: Sentence imposed for conversion is manifestly excessive
Ground 2: Totality principle not properly applied

Reasons for Judgment
PALLARAS J:

[1] The Appellant was convicted after trial of two counts of common assault and one count of conversion.

[2] On the counts of assault he was sentenced to 8 months and 9 months imprisonment.

[3] On the count of conversion he was sentenced to 12 months imprisonment.

[4] The sentences were to be served consecutively.

Ground 1:

[5] The principal argument for the Appellant on this ground was that when compared with other cases involving greater amounts of money, other persons in authority convicted of conversion were given lighter sentences.

[6] It is well accepted that the technique of comparing sentences imposed in different cases is of limited assistance and provides only imperfect guidance as to the appropriate sentence in any given case.

[7] This is particularly so when the accused occupies a position of authority, trust or public responsibility. Obligation and accountability vary as much as the factual scenarios that produce them.

[8] In the case of a police officer, the very highest standards of probity, honesty and integrity are demanded for without them the foundations of a law abiding, civilised community will disintegrate.

[9] Those who accept the benefits and privileges of responsible office know that when they do they must accept and fulfil the responsibilities attached to that office. This is particularly so when the office is that of a police officer. There can be no room for dishonest police and corrupt conduct in all its forms must be rooted out quickly and effectively if it is not to spread to others.

[10] To that extent, the element of specific and general deterrence plays a significant part in the formulation of an appropriate sentence. All the more so because the existence of corrupt police officers so severely maligns the great majority of police officers and leads to community distrust and a lack of respect for them. The civil consequences of corruption are significant indeed.

[11] In my view, nothing that has been put before me has demonstrated that the learned Magistrate was in error in coming to a sentence of 12 months imprisonment for the conviction on the count of conversion. It is well within the sentencing range and, in my view, the resulting sentence is very generous to the Appellant.

[12] I would dismiss this ground of appeal.

Ground 2:

[13] The Appellant submits that the learned Magistrate failed to take proper account of the principle of totality in reaching his sentence. This is said to be so because the learned Magistrate imposed consecutive sentences and did not "stand back and look at the total sentence".

[14] I have carefully considered the several authorities on this issue referred to me by both parties. In the case of Fa'afanua v Regina[1], Ward CJ discussed a number of relevant English and Australian authorities. It is well settled law that when a number of sentences are passed, their total impact and appropriateness must be assessed so that the final result is not "substantially over the normal sentence appropriate to the most serious offence for which the accused is being sentenced."[2]

[15] What constitutes a sentence "substantially over" a just and appropriate sentence is of course always a matter for judgment on the individual facts of the case.

[16] In Angitalo v Regina[3], the Solomon Islands Court of Appeal discussed the issue of totality and confirmed that where the total of sentences produces an "inappropriately harsh" sentence the sentencing court should reduce one or more of the accumulated sentences and should then explain how it reaches the final sentence.

[17] It is said by the Appellant that the learned Magistrate failed in this aspect of his sentencing and that he did not undertake this "separate stage" of sentencing process. This has resulted, it is submitted, in a "crushing penalty" being imposed on the Appellant.

[18] The Respondent submits that even if the learned sentencing Magistrate made no specific acknowledgement that he had applied the totality principle, that this is not an end to the argument. In the case of Bu'uga v Regina[4], Apaniai J in dismissing the appeal said "While the Magistrate may have committed an error in not applying the totality principle, the question still remains whether the 6 years and 4 months adequately and fairly represents the totality of the criminality in ....the offences."

[19] I accept this argument of the Respondent. What is of primary importance therefore is that the end result is adequate, appropriate and just. The sentence must reflect what is considered by the sentencing court to be the true criminality of the conduct involved in the offence. It would be arbitrary and in my view wrong to try to circumscribe these complex assessments any further than the accepted limits of judicial discretion.

[20] I note that in handwritten amendments to his draft judgement (at page 11 of the Appeal Book), the learned Magistrate has made the following entry –

"Consideration of concurrent sentences. Declined due (1) to delay between commission of offences of violence. In relation to dishonesty, different nature of charge. (2) Overall seriousness of offending."

[21] In this appeal no ground has been raised that the learned Magistrate erred in law in passing consecutive sentences and in my judgement, he was clearly correct to do so. The Magistrate's handwritten notes are obviously suggestive of the consideration that the learned Magistrate was giving to the structure of his sentence particularly in relation to concurrent or consecutive sentences and even although he does not specify totality in his remarks, he clearly adopted the correct approach in so far as he went.

[22] Yet even if I were to find that the Appellant has made out his submission that the learned sentencing Magistrate failed to specifically consider the totality principle, I would nevertheless dismiss this ground on the basis that no miscarriage of justice (and far less, no substantial miscarriage of justice[5]) has occurred.

[23] I do not accept that the sentence of 29 months can in any way whatsoever be described as "crushing". Indeed, given the circumstances of this case, it is my view that the sentence is generous to the Appellant.

[24] The appeal is dismissed.

THE COURT

^[1] [2004] SBHC 47; HC-CRC 297 of 2003 (29 June 2004)
^[2] Stanley Bade v Regina [1988-89] SILR 121, per Ward CJ at 125
^[3] [2005] SBCA 5, CA-CRAC 024 of 2004 (4 August 2005)
^[4] [2011] SBHC 163; HCSI-CRAC 396 of 2011 (9 December 2011)
^[5] See Criminal Procedure Code [Cap.7], s.293(1)