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Mala v R [2021] SBHC 131; HCSI-CRC 155 of 2021 (26 October 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 155 of 2021

JOHN MALA

V

REGINA

Date of Hearing: 20 October 2021
Date of Decision: 26 October 2021

Mr. Daniel Kwalai for the Appellant
Miss. Patricia Tabepuda for the Defendant

RULING ON APPEAL

Bird PJ:

1. This is an appeal by the appellant against sentence imposed by the Magistrates Court on the 11^th March 2021. The appellant was thereby sentenced to 1 ½ years imprisonment for the offence of housebreaking and committing felony contrary to section 300 (a) of the Penal Code (cap 26).
2. In his amended petition of appeal filed on the 14^th October 2021, the appellant grounds of appeal was premised on three grounds namely:
   1. The sentence imposed by the learned Principal Magistrate was manifestly excessive.
   2. The learned Principal Magistrate erred in law in failing to consider the sentencing principles under section 12 (2) and section 16 of the Juvenile Offenders Act.
   3. The learned Magistrate erred in law when it failed to send police officers to check the complainant to confirm whether or not the defendant had paid the sum of $1,000.00 to the complainant as compensation in order to consider suspending the sentence or other sentencing options pursuant to section 12 (2) of the Juvenile Offenders Act.
3. When I read the amended notice of appeal, I could see that the main crux of the appellant’s argument is ground 1 in that the sentence imposed by the learned Principal Magistrate was manifestly excessive.
4. I have noted that the maximum penalty for the offence of housebreaking is an imprisonment of 14 years. That makes that offence as very serious. In normal circumstances, the sentence of 1 ½ years imprisonment for that offence may not necessarily be manifestly excessive basically because of the seriousness of the charge.
5. In this particular case, the court is dealing with a juvenile and sentences imposed by the courts in such cases must have regard to the provisions of the Juvenile Offenders Act. The defendant is this case was a 17 year old juvenile and quite apart from punishing the offender, the courts must look at possibilities of rehabilitation of the offender.
6. Mrs Tabepuda of counsel for the Respondent had conceded that the sentence of 1 ½ years imprisonment imposed by the learned Principal Magistrate was in fact manifestly excessive bearing in mind that the appellant was a juvenile at the material time. I have perused the cases referred to by both counsel in their respective submissions. I have noted that the sentences imposed for housebreaking ranges from 7 months imprisonment to 21 months imprisonment. The higher ranges of sentences were of adult offenders.
7. Taking into account the above discussion and the case authorities that have been relied upon by counsel, I am of the view that the sentence imposed by the learned Principal Magistrate was manifestly excessive and appeal ground 1 is hereby allowed.
8. In relation to appeal ground 2, the appellant argued that the learned Magistrate had failed to take into account other options available to the courts in sentencing juveniles under section 12 (2) and section 16 of the Juvenile Offenders Act. Section 12 (2) provides:
   • “No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way specified under section 16.
9. Section 16 provides for alternative powers of the court in dealing with juveniles. I have read the sentence of the learned Principal Magistrate and I can find that nowhere in her sentence did she refer to and turn her mind to the alternative punishment of offenders under the Juvenile Offenders Act.
10. Juveniles are treated differently in our criminal justice system and that is why there is a separate and distinct law that deals with cases by juveniles. In sentencing of juvenile offenders the whole provisions of the Act must be observed and taken into account by the courts.
11. Having said that, I am of the view that the learned Principal Magistrate had erred in not particularly turning her mind to the provisions of section 12 (2) and section 16 of the Juvenile Offenders Act. Appeal ground 2 is allowed.
12. In relation of ground 3, I have perused the appeal book and I cannot find anywhere the learned Principal Magistrate was told that $1,000.00 was paid by the appellant to the complainant. It might not have been raised before the said Principal Magistrate at first instance.
13. It is now raised in this court but without any proof that the reconciliation was in fact done by the concerned parties this court cannot interfere. In the absence of evidence to confirm that fact, I will not be in a position to discuss that ground of appeal. I therefore dismiss that ground of appeal.
14. Having allowed ground 1 and 2 of the appellant’s appeal, I hereby quash the sentence of 1 ½ years imprisonment. I also quash the good behaviour bond in the sum of $300.00 for 1 year. I hereby impose an alternative sentence of 6 months imprisonment and a good behaviour bond of $100.00 for a period of 12 months.

Orders of the court

1. Appeal is allowed in part.
2. Sentence of 1 ½ years imprisonment is quashed and substituted with 6 months imprisonment.
3. Good behaviour bond of $300.00 for 12 months is also quashed and substituted with good behaviour bond of $100.00 for 12 months.
4. The appellant is to be released at the rising of the court.

THE COURT
Justice Maelyn Bird
Puisne Judge