HIGH COURT OF SOLOMON ISLANDS

Case name: 	R v Ma’akalo 	
		
Citation:		
		
Date of decision: 	19 June 2018	
		
Parties: 	Regina v Martin Ma’akalo	
		
Date of hearing: 	18 June 2018	
		
Court file number(s): 	51 of 2018	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 		
		
Judge(s): 	Palmer CJ	
		
On appeal from:	Magistrates’ Court	
		
Order:	1. Allow appeal.
2. Vary the order of the Magistrates’ Court dated 2nd February 2018 so that part of the sentence of 2 years is to be suspended as follows:
(i) Direct that the Appellant serves only 12 months herewith; and
(ii) Order that the remaining 12 months to be suspended for 12 months.	
		
Representation: 	Mr. G Gray for the Appellant 
Mrs. M Suifa’asia for the Crown 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Penal Code, s313, s343 (1),s379, s306	
		
Cases cited:		

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 51 of 2018

REGINA 

V

MARTIN MA’AKALO
Accused 

Date of Hearing: 18 June 2018
Date of Judgment: 19 June 2018

Mr. G Gray for the Appellant 
Mrs. M Suifa’asia for the Crown 

Palmer CJ.
1. 	This is an appeal against the orders of the Magistrates’ Court dated 2nd February 2018, in which the Appellant was convicted on his guilty pleas to five counts of receiving contrary to section 313 of the Penal Code, two counts of uttering contrary to section 343(1) of the Penal Code and one count of attempt to utter a forged cheque contrary to section 343(1) of the Penal Code as read with section 379 of the Penal Code, and sentenced to imprisonment for two years on each count to be served concurrently.
2. 	The summary of facts showed that the offences were committed together in consort and close association with the co-accused, Ms. Grace Aihunu, his partner at the time of commission of the offences and who was the principal offender and instigator behind the commission of the offences. He participated but at the end of the chain assisting to facilitate the commission of the offences and as a channel through whom some of the monies were channelled through. His close association and involvement with the co-accused would have been an aggravating factor in the commission of the offences.
3. 	His co-accused had been charged separately for 12 counts of forgery, 13 counts of falsifying accounts contrary to section 306 of the Penal Code and 3 counts of uttering, a total of 28 counts with a value of $122,867.53. The total amount which related to the Appellant was $92,734.13; note this amount is directly related to the offences committed by the co-accused confirming both were in consort with each other.
4. 	Three grounds were raised in the petition of appeal filed on 14 February 2018, namely, delay, that the sentence was manifestly excessive and that of health and medical condition of the Appellant.
5. 	On the 29th May 2018 the appeal was amended to only two grounds, the issue of delay of seven years and the current medical condition of the Appellant.
6. 	In his sentence, the learned Principal Magistrate, Mr. Iomea noted that the offending occurred over a period of time and reflected “premeditation, co-operation and careful planning by Ms Aihunu and Mr. Ma’akalo who were then partners”. His Worship was satisfied the Appellant was a willing participant in the offences of the principal offender in this case. His Worship also took into account the substantial amount of money involved and that it appears very little was recovered which would have been a great loss to the victim company. He also gave credit for their guilty pleas and that they had no previous convictions. I am satisfied the learned Magistrate took into account all the necessary aggravating and mitigating factors into account and his reasoning and finding cannot be faulted.
7. 	On the issue of delay, having considered the submissions in favour of the Appellant and considered the sentencing remarks of the learned Magistrate, I am satisfied that while he took this into account, I accept submissions from learned Counsel Mr. Gray this was not given adequate weight by the learned Magistrate for he formed the view delay was contributed to by the Appellant, however as pointed out by Counsel in his submissions a major part of the delay was beyond his control. Having so found, it is important to note that the Court will not necessarily intervene if it is clear the sentence imposed was not manifestly excessive, an important test in any appeal. In the circumstances of this case, I am not satisfied the sentence of two years imposed was excessive at all, rather it was a balanced and well-reasoned sentence.
8. 	As to the second part of the appeal regarding the medical condition and health of the Appellant, I accept the Appellant was suffering at time of incarceration, of high blood pressure, diabetes mellitus and obesity, medical conditions, which if not managed and controlled well could pose further serious risk and complications to his health and wellbeing. I note this had not been brought to the attention of the learned Magistrate to consider. I accept if that had been done, it is possible it may have caused him to reconsider the sentence imposed. I accept the longer he remains in prison the risk may be exacerbated, which would seem to be a major concern and being part of the reason for this appeal. As pointed out however, in the written submissions of learned Counsel, Mrs. Suifa’asia for the Crown, such medical conditions would not normally affect the length of sentence, for the Correctional Services do provide medical health and care services for inmates in the circumstances of each case, including escorts under guard for medical treatment at the National Referral Hospital where necessary.
9. 	However, in certain cases on humane grounds and as an act of mercy, the Court may, without interfering with the length of sentence imposed, decide to vary sentence in exceptional circumstances to take into account the medical situation of the prisoner as has been alluded to in submissions in this court.
10. 	Having thought carefully about this case, I am satisfied, in the circumstances of this case, that the sentence imposed can be varied so that he will serve only a part in prison with the remainder to be suspended. I form this view after being satisfied that this will still satisfy the requirements of retribution and deterrence, in particular the community’s needs that those who become involved in this type of crime will receive immediate custodial sentences and that only on exceptional grounds will the court exercise its discretion to impose a suspended sentence of this type.
11. 	I am satisfied accordingly while the sentence of two years remains unaffected, the appeal will be allowed so that the sentence can be varied. I make orders as follows:
Orders of the Court:
1.	Allow appeal.
2.	Vary the order of the Magistrates’ Court dated 2nd February 2018 so that part of the sentence of 2 years is to be suspended as follows:
(i) 	Direct that the Appellant serves only 12 months herewith; and
(ii) 	Order that the remaining 12 months to be suspended for 12 months.
The Court.