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Chapter 59: Sentencing

Table Of Contents

[59.0]	Introduction
[59.1	Role Of The Prosecution
[59.2]	Entering Of Plea
	[59.2.1] General Principles
	[59.2.2] Taking Of Plea
	[59.2.3] Unrepresented Defendants
[59.3]	Dispute As To Facts
[59.4]	General Sentencing Principles
[59.5	Sentencing Generally
[59.6]	Options Available In Sentencing
[59.7]	Imprisonment
	[59.7.1] Penal Code
	[59.7.2] General Principles
	[59.7.3] Suspended Sentences
		[A] Penal Code
		[B] General Principles
		[C] Use Of Weapons
		[D] Cases In Which Suspended Sentences Have Been Imposed
		[E] Reactivating Suspended Sentences
	[59.7.4] Concurrent Or Consecutive Sentences
		[A] Criminal Procedure Code
		[B] General Principles
	[59.7.5] Remissions
	[59.7.6] Discretionary Life Sentences
[59.8]	Fines
	[59.8.1] Penal Code
	[59.8.2] General Principles
[59.9]	Good Behaviour Bond
[59.10]	Binding Over Order
[59.11]	Residence Order
[59.12]	Compensation Order
	[59.12.1] Statutory Provisions
	[59.12.2] General Principles
	[59.12.3] Compensation Factors
[59.13]	Absolute Or Conditional Discharge
[59.14]	Police Supervision
[59.15]	Property Orders
[59.16]	Reconciliation
	[59.16.1] Magistrates' Courts Act
	[59.16.2] Practice Direction
[59.17]	Disqualification
	[59.17.1] General Principles
	[59.17.2] Traffic Act
	[59.17.3] Obligatory Disqualification
	[59.17.4] Discretionary Disqualification
	[59.17.5] Driving Test
	[59.17.6] Schedule
	[59.17.7] Application to Remove Disqualification
[59.18]	Co – defendants
[59.19]	Conspiracy
[59.20]	Attempts To Commit Offences
[59.21]	Juveniles
[59.22]	Aggravating Factors
	[59.22.1] Introduction
	[59.22.2] Seriousness Of The Offence Generally
	[59.22.3] Modus Operandi
	[59.22.4] Use Of Weapons
	[59.22.5] Level Of Culpability
	[59.22.6] Breach Of Trust
	[59.22.7] Previous Convictions
	[59.22.8] Repeated Commission Of Offences
	[59.22.9] Period Of Which Offences Were Committed
	[59.22.10] Night – time
	[59.22.11] Consumption Of Alcohol
[59.23]	Mitigating Factors
	[59.23.1] Introduction
	[59.23.2] Plea Of Guilty
	[59.23.3] Good Character Generally
	[59.23.4] No Or Limited Convictions
	[59.23.5] Co – operation With Police
	[59.23.6] Family Circumstances
	[59.23.7] Youthfulness
	[59.23.8] Genuine Remorse
	[59.23.9] Delay
	[59.23.10] Good Work Record
	[59.23.11] Payment Of Compensation
	[59.23.12] Informers
	[59.23.13] Level Of Culpability
	[59.23.14] Health Of The Defendant
	[59.23.15] Period In Custody Prior To Sentencing
	[59.23.16] Motive
	[59.23.17] Risk Of Repetition
[59.24]	Comparative Sentence
	[59.24.1] Introduction
	[59.24.2] Offences Against Property
			[A] Larceny Generally
			[B] Embezzlement
			[C] Break & Enter
			[D] Arson
			[E] Wilful Damage
			[F] False Pretences
			[G] Fraudulent Conversion
			[H] Forgery
			[I] Receiving
	[59.24.3] Offences Against The Person
			[A] Introduction
			[B] Murder
			[C] Attempted Murder
			[D] Manslaughter
			[E] Infanticide
			[F] Grievous Harm
			[G] Bodily Harm
			[H] Unlawful Wounding
			[I] Common Assault
			[J] Armed Robbery
			[K] Attempts To Procure Abortion
			[L] Demanding Money With Menaces
	[59.24.4] Offences Of A Sexual Nature
			[A] Rape & Attempted Rape
			[B] Indecent Assault
			[C] Incest
			[D] Defilement Of Girls
	[59.24.5] Traffic Offences
			[A] Dangerous Or Reckless Driving Causing Death
			[B] Dangerous Or Reckless Driving
			[C] Driving Without Due Care & Attention Or Reasonable Consideration
			[D] Driving Under The Influence
			[E] In – Charge Under The Influence
			[F] Disqualified Driving
			[G] Driving Uninsured Motor Vehicle
			[H] Unlicensed Driving
	[59.24.6] Miscellaneous Offences
			[A] Unauthorised Sales Of Liquor
			[B] Consuming Liquor In A Public Place
			[C] Escaping Lawful Custody
			[D] Cultivating Dangerous Drug
			[E] Possession Of Firearms Or Ammunition Without License
			[F] Giving Ammunition To A Person Not Licensed
			[G] Endangering Safety Of Passengers
			[H] Unlawful Damage By Rioters
			[I] Perjury
			[J] Attempted Bribery
			[K] Customs & Excise Act
			[L] Fisheries
			[M] Forest Resources & Timber Utilisation Act
			[N] Passports Act

SENTENCING

[59.0] Introduction

In Gerea & others v Director of Public Prosecutions [1984] SILR 161 Pratt JA commented at pages 174 – 175:

'[I]n Deaton v The Attorney General & The Revenue Commissioners (1963) IR 170 […] their Honours say at p. 181: -

"It is common ground that it is for the Legislature, when it creates an offence, to prescribe what punishment shall attach to the commission of such offence. It is also common ground that the legislature may for a particular offence prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties or a range of penalties."

Their Honours then go on to develop the argument that the selection of the actual penalty to be imposed on the particular perpetrator before the Court is a matter for the judicial arm where a choice is open to them. They expressed the conclusion in the following terms at p. 183:

"In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive […]

Judicial power is exercised on matters of guilt or innocence and is also exercised, "in determining the punishments to be inflicted upon persons found guilty of offences charged against them, which punishments it then becomes the obligation of the Executive Department of Government to carry into effect" […].' (emphasis added)

Section 8(1) of the Criminal Procedure Code (Ch. 7) states:

'Any court may pass any lawful sentence combining any of the sentences which is authorised by law to pass.'

The law relating to the 'Criminal Jurisdiction Of The Courts' is examined commencing on page 14.

Section 49 of the Interpretation & General Provisions Act (Ch. 85) states:

'When a penalty for an offence is prescribed in an Act, the offence is punishable by a penalty not exceeding the penalty prescribed.'

[59.1] Role Of The Prosecution

It is the duty of the prosecution and defence to know what the maximum sentence that can be imposed by the Court, see R v Clarke (1974) 59 CrAppR 298.

A duty of the 'prosecution' is to 'assist [… the Court] in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defence case so far as it appears to require it' as stated by Kapi J in Acting Public Prosecutor v Uname Aumane & others [1980] PNGLR 510 at page 544. (emphasis added) [words in brackets added]

In R v Kelly Dennie, Kenazo Maeka & Teddy Weba (Waiba) (Unrep. Criminal Appeal Case No. 12 of 1998) Kabui J commented at page 5:

'The Court believes it is upon the Prosecution to produce all the relevant facts to the Court as Officers of the Court. This burden is heavier when the accused persons are not represented by Counsel and are pleading guilty to serious offences under the Penal Code. Justice requires that this be done.'

Whilst the defence will invariably stress the 'mitigating factors' of a particular case which a court should take into account when passing sentence, the prosecution is expected to ensure that the court does not overlook the 'aggravating factors'. However, if a defendant is 'unrepresented' a prosecutor as an 'officer of the court' is expected to bring to the court's notice both the 'mitigating and aggravating factors', see R v Van Pelz (1942) 29 CrAppR 10; [1943] 1 AllER 36; [1943] KB 157.

The prosecution should also bring to the court's notice whether a particular offence is prevalent at that time and the public's view as to the seriousness of the particular offence, in appropriate circumstances, see R v Ben Tungale, Brown Beu, Nelson Oma, James Sala, Louis Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997; Lungole – Awich J; at page 21).

In R v David Leliana (Unrep. Criminal Review Case No. 6 of 1998) Palmer J commented at page 1:

'Time and again this Court has reiterated that Magistrates should take time to consider and familiarise themselves with the relevant laws so that unnecessary omissions are not committed.'

However, prosecutors have the responsibility in bringing to the attention of the courts relevant statutory provisions, so that such oversights or inadvertent errors are minimized and that 'objectionable' disparity in sentencing is also minimised, see R v Francis Hori (Unrep. Criminal Review Case No. 118 of 1993; Palmer J; at page 3).

[59.2] Entering Of Plea

[59.2.1] General Principles

In R v Jack Faununa (Unrep. Criminal Case No. 10 of 1997) Lungole – Awich J commented at page 7:

'A plea of guilty is an unequivocal admission of the commission of the offence. Accused's admission must necessarily encompass all the unambiguous facts that constitute the offence, that is, all the elements of the offence. It follows that the court must take care to ensure that the accused understands the charge, and to understand what his answer amounts to. In my view, it is to be left to the judge or magistrate to decide in each case, how he will ensure that the accused understands the charge and what the accused's answer amounts to.' (emphasis added)

'[A] plea of guilty is an admission of the essential facts of the charge. That prevents the pleas of guilty being equivocal', see Gua v R [1990] SILR 129 at page 130.

Therefore, a defendant must admit 'the truth of the charge' otherwise 'the court shall proceed to hear the witnesses for the prosecution and other evidence (if any)', see section 195(1) of the Criminal Procedure Code (Ch. 7). (emphasis added)

'A plea of guilty must […] come from the defendant himself otherwise what follows is void', see R v Paul Maenu'u & Augustine Tuita (Unrep. Criminal Appeal Case No. 11 of 1998; Lungole – Awich J; at page 7). (emphasis added)

'[A] guilty plea can be altered to a plea of not guilty at any time before the passing of sentence by the Court. However, upon the imposition of an appropriate sentence, the court cannot change the plea to that of not guilty', see John Solo v R (Unrep. Criminal Appeal Case No. 89 of 2000; Kabui J; at page 6).

A plea of guilty is not considered a conviction until a sentence is passed, see R v Cole (1965) 49 CrAppR 199; [1965] 2 AllER 29; [1965] 3 WLR 263; [1965] 2 QB 388.

See also: R v Godfrey Foasi (Unrep. Criminal Review Case No. 44 of 1996; Palmer J); R v James Kaukui (Unrep. Criminal Case No. 23 of 1988; Ward CJ) & R v Golathan (1915) 11 CrAppR 79 at page 80.

[59.2.2] Taking Of Plea

Section 195 of the Criminal Procedure Code (Ch. 7) states (in part):

'(1) The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge.

(2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary.

(2) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.

(4) If the accused person refuses to plead, the court shall order a plea of "not guilty" to be entered for him.' (emphasis added)

In R v Jack Faununu (Unrep. Criminal Case No. 10 of 1997) Lungole – Awich J stated at pages 7 – 8:

'Both sections [, referring to sections 256 (now 257) and 194 (now 195) of the Criminal Procedure Code (Ch. 7),] do not make it peremptory to convict straight away on the answer of the accused that he pleads guilty. In my view that is acknowledgment of the role of the magistrate or judge to, first, satisfy himself that the admission is unequivocal and safe to act on. If he doubts it he should not convict; he should enter a plea of guilty. A plea of guilty is an unequivocal admission of the commission of the offence. Accused's admission must necessarily encompass all the unambiguous facts that constitute the offence, that is, all of the elements of the offence. It follows that the court must take care to ensure that the accused understands the charge, and to understand what his answer amounts to. In my view, it is to be left to the judge or magistrate to decide in each case, how he will ensure that accused understands the charge and what the accused's answer amounts to.' (emphasis added) [words in brackets added]

In Rachel Tobo v Commissioner of Police (Unrep. Criminal Case No. 17 of 1992) Muria ACJ held at pages 1 – 3:

'The law requires that when an accused person is brought before the court charged with an offence, the substance of the charge must be put to the accused person and that the accused person must be asked whether he admits or denies the truth of the charge. If the accused person admits the charge, the court shall convict him and pass sentence on him "unless there shall appear to it sufficient cause to the contrary". Where the accused person denies the charge the court must proceed and hear the evidence. That basically is what section 194 (new section 195), Criminal Procedure Code requires.

While the courts must be mindful of the rights of an unrepresented accused person brought before it, charge[d] with an offence, the court's duty as envisaged under section 194, Criminal Procedure Code and section 10 of the Constitution is to afford the accused a fair hearing. It is not the court's duty to ensure that an accused person is accorded legal aid. The function of providing legal aid, advice and assistance is to be performed by the Public Solicitor as provided under section 92(4) of the Constitution. The court must not, however, deny the accused person the opportunity to have access to legal aid, advice or assistance.

[…]

The court has the power under section 194(2), Criminal Procedure Code to not pass sentence upon an accused who pleaded guilty to a charge. That power may be exercised by the court where "there shall appear to it sufficient cause to the contrary". One such sufficient cause must be where the accused person pleaded guilty but the accused raised a possible defence in law during mitigation.

In such a situation the court must enter a plea of not guilty and the case must proceed as a contested hearing.

It is, however, another thing to insist that upon a plea of guilty made by an accused person, the court should investigate that plea to ensure that it was the correct plea to the offence. I do not think the court should engage itself with such investigatory course of action. All that it is incumbent on the court to do when a person is brought before it charged with an offence, is to put the charge to the accused person, explain the substance of the charge to him and having satisfied itself that the accused understands the charge, ask the accused person if he or she admits the charge.' (emphasis added)

In Ben Donga v R (Unrep. Criminal Appeal Case No. 16 of 1994) Palmer J commented at pages 2 - 3:

'Magistrates should be cautious in ensuring that there are sufficient particulars in the information to enable him to put the charge to the accused, and if necessary, to explain it to the accused. Where the particulars are inadequate, then the prosecutor should be required to amend the information and insert the necessary details. It is good practice too to ask the accused if he understood the charge before taking his plea.

[…]

Normally, after the facts are read out, the accused should be asked if he agreed with the facts. If he does not agree, then he/she should be further asked as to what part of the facts he/she did not agree with. By doing this the court should be placed in a better position to decide if the plea of the accused was equivocal. This sort of inquiry would not be necessary where the accused is represented, as it would be safe for the court to rely on the skill of the accused's advocate to advice the accused as to the contents of the information.

[…]

The usefulness of this practice in the case of an unrepresented accused is that it helps the court to cross – check with the facts as produced by the prosecution, and to check if there may be a possible defence or matters of mitigation which the accused may have omitted to mention, either when he was asked if he agreed with the facts or when giving his mitigation.'

See also: Fanasia v Director of Public Prosecutions [1985 – 86] SILR 84.

Whilst a 'plea of not guilty' is not to be considered as an 'aggravating factor', see R v Spinks (1980) 2 CrAppR(S) 335; R v Scott (1983) 5 CrAppR(S) 90; R v Hercules (1987) 9 CrAppR(S) 291 & R v Evans (1986) 8 CrAppR(S) 197, a 'plea of guilt' is to be considered as a 'mitigating factor' when sentencing.

The law relating to a 'Plea Of Guilty As A Mitigating Factor' is examined commencing on page 970.

In R v Turner (1970) 54 CrAppR 352 [[1970] 2 QB 321] comments were made in respect of 'plea – bargaining'. Parker LCJ, delivering the judgment of the Court of Appeal, stated at pages 360 – 361:

'1. Counsel must be completely free to do what is his duty, namely to give the accused the best advice he can and if need be, advice in strong terms. This will often include advice that a plea of Guilty, showing an element of remorse, is a mitigating factor which may well enable the court to give a lesser sentence that would otherwise be the case. Counsel, of course, will emphasise that the accused must not plead Guilty unless he has committed the acts constituting the offence charged.

2. The accused, having considered counsel's advice, must have a complete freedom of choice whether to plead Guilty or Not Guilty.

3. There must be freedom of access between counsel and judge. Any discussion, however, which takes place must be between the judge and both counsel for the defence and counsel for the prosecution. If a solicitor representing the accused is in the court, he should be allowed to attend the discussion, if he so desires.

This freedom of access is important because there may be matters calling for communication or discussion, which are of such a nature that counsel cannot in the interests of his client mention them in open court. Purely by way of example, counsel for the defence may by way of mitigation wish to tell the judge that the accused has not long to live, is suffering maybe from cancer, of which he is and should remain ignorant.

Again, counsel on both sides may wish to discuss with the judge whether it would be proper, in a particular case, for the prosecution to accept a plea to a lesser offence.

It is of course imperative that so far as possible justice must be administered in open court. Counsel should, therefore, only ask to see the judge when it is felt to be really necessary and the judge must be careful only to treat such communications as private where, in fairness to the accused person, this is necessary.

1. The Judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of Guilty he would impose one sentence but that on a conviction following a plea of Not Guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential. Such cases, however, are in the experience of the Court happily rare. What on occasions does appear to happen however is that a judge will tell counsel that, having read the depositions and antecedents, he can safely say that on a plea of Guilty he will for instance, make a probation order, something which may be helpful to counsel in advising the accused. The judge in such a case is no doubt careful not to mention what he would do if the accused were convicted following a plea of Not Guilty. Even so, the accused may well get the impression that the judge is intimating that in that event a severer sentence, maybe a custodial sentence, would result, so that again he may feel under pressure. This accordingly must also not be done.

The only exception to this rule is that it should be permissible for a judge to say, if it be the case, that whatever happens, whether the accused pleads Guilty or Not Guilty, the sentence will or will not take a particular form, eg. a probation order or a fine, or a custodial sentence.

Finally, where any such discussion on sentence has taken place between judge and counsel, counsel for the defence should disclose this to the accused and inform him of what took place.'

See also: R v Atkinson [1978] 2 AllER 460.

[59.2.3] Unrepresented Defendants

In Yaneo v Director of Public Prosecutions [1985 – 86] SILR 199 Ward CJ held at page 201:

'Clearly the court is under a duty to ensure the accused understands the charge to which he is being asked to plead but it is no part of the courts duty to explain each possible defence to him. To do so would cast an impossible burden on the magistrate both in time and in deciding how far he needs to go. Similarly there is a risk an accused person who does not understand fully the role of the magistrate may feel he is suggesting the accused should offer a defence that is inappropriate or untrue in his case.

As the facts are outlined on a plea of guilty, and, in particular, as the accused mitigates, the court must be careful to see that, if any matter arises which suggests the plea is wrongly made, they should enter a plea of 'not guilty'.

The position is set out clearly in the judgment of Widgery J in R v Blandford Justices ex parte G (an infant) (1966) 1 AER 1021 at 1026 as quoted in Fanasia's case. However, the passage quoted in that report, although accurately expressing the point, is incomplete and I feel it should be read as a whole.

At risk of appearing pedantic and repeating to magistrates a matter of which they are fully aware, I quote the passage in full:-

"In every instance where a magistrate receives the reply "guilty" to the common form question asking the accused to plead, it is necessary for the magistrate to consider whether it is safe to accept the plea and to enter a conviction. Of course, in many cases the question is not a difficult one. If the accused is represented, if the accused …. is a man of mature years who clearly understands what is being put to him, it may well be that he can regard it as being a satisfactory plea on which he can safely act without further enquiries. In cases, however, where the accused is not represented or where the accused is of tender age or for any other reasons there must necessarily be doubts as to his ability finally to decide whether he is guilty or not, the magistrate ought, in my judgment to, accept the plea as it were provincially, and not at that stage enter a conviction. He ought …. in these cases to defer a final acceptance of the plea until he has had a chance to learn a little more about it and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading one. I have no doubt that experienced magistrates in fact do in these cases wait until they have heard the facts outlined by the prosecution and wait until they have heard something of what the accused has to say. If at that stage the magistrate feels that nothing has been disclosed to throw doubts on the correctness of the plea of guilty, he properly accepts it, enters a conviction and that is an end of the matter so far as this point is concerned. If, however, before he reaches that stage he finds there are elements in the case which indicate that the accused is really trying to plead not guilty or, as Lord Goddard put it, "guilty but …..", then the magistrate has, in my judgment, no discretion but must treat the plea as what it is, namely, a plea of 'not guilty'."' (emphasis added)

In Gua v R [1990] SILR 129 Ward CJ held at page 130:

'The Appellant was unrepresented in the lower court. In such a case, it is part of the duty of the Magistrate to ensure the accused understands the charge before he pleads to it. Equally, it is his duty to ensure that, when the facts are outlined, an offence is disclosed and the accused is clearly admitting that offence.'

In Luke Misitana v R (Unrep. Criminal Appeal Case No. 7 of 1996) Muria CJ held at page 2:

'It must be pointed out that where the accused is not legally represented and he pleads guilty to a charge, it is absolutely essential that the Court must ensure that the accused understands the elements of the offence contained in the charge to which he pleads guilty. If having done so, the Court ascertains that the accused has wrongly or mistakenly pleaded guilty, the trial magistrate of judge should permit the accused to alter his plea so long as it is before judgment or sentence but not after.' (emphasis added)

In John Solo v R (Criminal Appeal Case No. 8 of 2000) Kabui J stated at pages 2 – 8:

'[W]here the accused person is unrepresented by Counsel, it is incumbent upon the Magistrate to explain to the accused person the elements of the offence, particularly where there is a defence available to the accused person. […]

[…]

[…] The Magistrate after explaining the charge should have been careful to see whether or not the facts presented by the Prosecutor did support each of the elements of the offence […]. Local persons whose knowledge of the legal system in this country is lacking can often compromise their rights to a fair hearing by simply pleading guilty. [… T]he concern of the Court is to ensure as far as possible that those who are punished are in fact guilty of the charges brought against them. I think this is the bottom – line requirement expected by the community of all Magistrates and Judges.'

In Rachel Tobo v Commissioner of Police (Unrep. Criminal Case No. 17 of 1992) Muria ACJ held at page 1:

'While the courts must be mindful of the rights of an unrepresented accused person brought before it, charge[d] with an offence, the court's duty as envisaged under section 194, Criminal Procedure Code and section 10 of the Constitution is to afford the accused a fair hearing. It is not the court's duty to ensure that an accused person is accorded legal aid. The function of providing legal aid, advice and assistance is to be performed by the Public Solicitor as provided under section 92(4) of the Constitution. The court must not, however, deny the accused person the opportunity to have access to legal aid, advice or assistance.'

[59.3] Dispute As To Facts

When considering the sentence to be imposed, a Court must consider the version of facts given by the defendant, see Saukoroa v R [1983] SILR 275 at page 277.

In Martin Apa v R (Unrep. Criminal Case No. 42 of 1992) Palmer J stated at page 3:

'[W]here the facts as presented by prosecution are disputed then that should put the Magistrate on alertness as to whether the plea of guilty is to be treated as an unequivocal admission of guilt. This was one of the matters that the learned Chief Justice Ward referred to in his judgment in the case of Yaneo v DPP 1985 – 86 SILR 199 at page 200 where he said:

"There must be something at the earlier hearing that suggests the plea was not an unequivocal admission of guilt. Usually this will only be apparent on the record but, in exceptional circumstances, the court will consider other matters that may be thought to show some equivocation."'

In R v Paul Takopi (Unrep. Criminal Review Case No. 200 of 1994) Palmer J held at pages 1 – 3:

'What is important to note is that the opinion of a magistrate as to whether the facts as read by the prosecutor constitute an offence or not should be formed when the facts have been read out by the prosecutor. The crown's case against the accused is as summarised in the facts read out by the prosecutor. If, after hearing the facts a magistrate is not satisfied that an offence has been made out as contained in the charge, then he should raise the matter with the prosecutor straight – away.

The reason why an accused is asked if he agrees with the facts is two – fold. First, it is to enable the court to ascertain if the accused does in fact understand the charge made against him. Secondly, it is to assist the court in the case where the accused is unrepresented by a lawyer, to ascertain whether there may be a possible defence, and thereby to change the plea from guilty plea to a not guilty plea. Most of the accused who come before the courts are unrepresented and un – schooled in the law, and therefore may not be aware of their legal rights, and whether there exist a defence to the charge made against them. By giving them an opportunity to indicate to the court whether they agree with the facts or not, the court may be assisted by what they may say in response. For instance, if the accused says that he does not agree with the facts, then he should specifically be asked to point out what part of the facts were not agreed to.

[…]

Once it is clear that there is conflict in what the facts say and what the accused says, and that there is a possible defence in what the accused says, then the magistrate should change the plea to a not guilty plea and adjourn the case for a trial to be held. At other times, there may not be a defence but simply a difference in the facts which would be material for sentencing purposes; that is, if the version given by the accused is to be accepted by the court then it would be material in mitigation in favour of the accused. In such instances, a plea of guilty should be maintained, but a trial be held on the facts or matters in dispute. The sentence can then be passed after the issues of fact that are in dispute have been ruled upon by the court.' (emphasis added)

The law in relation to 'Mitigating Factors' is examined commencing on page 970.

In R v Leonard Boaz (Unrep. Criminal Review Case No. 45 of 1996) Palmer J stated at page 3:

'Where the facts are not agreed to, then the presiding Magistrate would have to decide whether, evidence would need to be heard on those disputed matters and a finding made, or whether the Prosecutor wishes to amend the facts to incorporate the matters disputed by the accused.'

In R v Tolera [1999] 1 CrAppR 29 [[1998] CrimLR 425] Lord Bingham CJ, delivering the judgment of the Court of Appeal, held at page 32:

'If the defendant wishes to ask the court to pass sentence on any other basis than that disclosed in the Crown Case, it is necessary for the defendant to make that quite clear. If the Crown does not accept the defence account, and if the discrepancy between the two accounts is such as to have a potentially significant effect on the level of sentence, then consideration must be given to the holding of a Newton hearing to resolve the issue. The initiative rests with the defence which is asking the court to sentence on a basis other than that disclosed by the Crown case.

[…]

[… W]here the defendant, having pleaded guilty, advances an account of the offence which the prosecution does not, or feels it cannot, challenge, but which the court feels unable to accept, whether because it conflicts with the facts disclosed in the Crown case or because it is inherently incredible and defies common sense. In this situation it is desirable that the court should make it clear that it does not accept the defence account and why. There is an obvious risk of injustice if the defendant does not learn until sentence is passed that his version of the facts is rejected, because he cannot then seek to persuade the court to adopt a different view. The court should therefore make its views known and, failing any other resolution, a hearing can be held and evidence called to resolve the matter. That will ordinarily involve calling the defendant and the prosecutor should ask appropriate questions to test the defendant's evidence, adopting for this purpose the role of an amicus [ie., 'friend of the court'] exploring matters which the court wishes to be explored. It is not generally desirable that the prosecutor, on the ground that he has no evidence to contradict that of the defendant, should simply fold his hands and leave the questioning to the judge.' [words in brackets added]

A 'Newton Hearing' (see R v Newton (1983) 77 CrAppR 13; (1982) 4 CrAppR(S) 388; [1983] CrimLR 198) is a hearing in which evidence is called in the normal fashion when there is a dispute as the facts which will impact on the sentence is to be imposed. The normal standard of proof on the prosecution applies, ie., 'beyond reasonable doubt', see R v McGrath & Casey (1910) 5 CrAppR(S) 460. As a consequence of such a hearing being conducted and the version of the defendant rejected, the impact of the 'plea of guilty' by the defendant as a 'mitigating factor' should be reduced, see R v Hassell [2000] 1 CrAppR(S) 67.

See also: R v Jack Faununu (Unrep. Criminal Case No. 10 of 1997; Lungole - Awich J); Ben Donga v R (Unrep. Criminal Appeal Case No. 16 of 1994; Palmer J); Martin Apa v R (Unrep. Criminal Case No. 42 of 1992; Palmer J; at page 3); R v Taylor & Taylor (1987) 84 CrAppR 202; R v Ahmed (1985) 80 CrAppR 295; [1985] CrimLR 250 & R v Beswick [1996] 1 CrAppR 427.

[59.4] General Sentencing Principles

In R v Timothy Sulega (Unrep. Criminal Review Case No. 113 of 1999) Palmer J commented at page 2:

'The Police are doing their part in arresting, charging and bringing such offenders to court, the public are crying out for tougher penalties, the courts however must continue to maintain a balanced approach, and that includes balancing the sentence to be imposed.' (emphasis added)

In Johnson Tariani v R [1988 – 89] SILR 7 Kapi JA commented at pages 12 – 13:

'Where the law simply provides a maximum sentence, the Courts are given a very wide discretion to determine the appropriate penalty in each case. The courts have developed principles of sentence which guide the exercise of this discretion. The Courts have developed theories of sentence which may be described as deterrence, separation, rehabilitation and retribution. I have described these theories in the Papua New Guinea case of Acting Public Prosecutor v Uname Aumane & other [1980] PNGLR 510 at 537 – 538. At p. 538, I said:-

"The agonizing task for the sentencing judge is to evaluate which of these theories of sentencing should be achieved if he chooses one theory of sentencing he is likely to frustrate the other theories. In some cases, a judge will need to give a balanced consideration to all theories of sentencing. In others, a judge will want to emphasise or achieve one theory of sentencing more that the other in certain classes of offences."

Even if a judge applies the proper sentencing principles, how is he to arrive at the appropriate term of imprisonment? There is no mathematical or scientific method of arriving at the appropriate term. It is therefore important to bear in mind that a sentencing tribunal should aim to achieve consistency in the approach or principles of sentence, rather than to achieve consistency in the actual term of imprisonment [or the use of any other sentencing option]. See Bibi (1980) 71 CrAppR 360. However, sentencing in a particular class of offences over a number of years will lead to a range of sentences which may be a guide in determining appropriate terms of imprisonment [or other sentencing options].' (emphasis added) [words in brackets added]

The law relating to 'Comparative Sentences' is examined commencing on page 979.

In R v Sargeant (1975) 60 CrAppR 74 Lawton LJ, delivering the judgment of the Court, commented at pages 77 - 78:

'What ought the proper penalty to be? We have thought it necessary not only to analyse the facts, but to apply to those facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing.

I will start with retribution. The Old Testament concept of an eye for an eye and tooth for tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand court must not disregard it. Perhaps the main duty of the court is to lead public opinion. […]

[…]

I now turn to the element of deterrence, because it seems to us the trial judge probably passed this sentence as a deterrent one. There are two aspects of deterrence: deterrence of the offender and deterrence of likely offenders. Experience has shown over the years that deterrence of the offender is not a very useful approach, because those who have their wits about them usually find the closing of prison gates an experience which they do want again. If they do not learn that lesson, there is likely to be a high degree of recidivism anyway. So far as deterrence of others is concerned, it is the experience of the courts that deterrent sentences are of little value in respect of offences which are committed on the spur of the moment, either in hot blood or in drink or both. Deterrent sentences may very well be of considerable value where crime is premeditated. Burglars, robbers and users of firearms and weapons may very well by put off by deterrent sentences. […]

We come now to the element of prevention. Unfortunately, is it one of the facts of life that there are some offenders for whom neither deterrence nor rehabilitation works. They will no on committing crimes as long as they are able to do so. In those cases the only protection which the public has is that such person should be locked up for a long period. […]

Finally, there is the principle of rehabilitation. Some 20 to 25 years ago there was a view abroad, held by many people in executive authority, that short sentences were of little value, because there was not enough time to give in prison the benefit of training. That view is no longer held as firmly as it was.'

In R v Maeli Rinau (Unrep. Criminal Review Case No. 18 of 1996) Palmer J commented at page 3:

'[T]he element of deterrence should […] have been borne in mind by the learned Magistrate when passing sentence. Whilst the Police and other interested persons are seeking to make the message plain and clear to the public, the Courts must be seen to be providing the necessary support base, or taking corresponding action, to ensure that the message is not trumpeted around in vain but that it does have teeth.'

In balancing the 'public interest' the question which courts invariably have to consider depending on the seriousness of the particular case is as follows:

'[I]s it the protection of the public, retribution and deterrence of the appellant and others from committing offences of this sort that the public interest primarily requires in this case, or is it the reformation of the individual offender' as commented by Davis CJ in Anna Langley v R (Unrep. Criminal Appeal Case No. 17 of 1978). (emphasis added)

Whilst the 'reformative approach' to punishment can benefit both society and each individual defendant, the suitability of such an approach depends on the circumstances of each case, see R v Don Rector Nonga (Unrep. Criminal Appeal Case No. 32 of 1996; Muria CJ; at page 4).

In R v Ball (1951) 35 CrAppR 164 Hilbery J, delivering the judgment of the Court of Criminal Appeal, commented at pages 165 - 166:

'In deciding the appropriate sentence a Court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living' as referred to in Anna Langley v R (supra).'

In R v Rex Topilu (Unrep. Criminal Case No. 35 of 1995) Palmer J stated at page 2:

'One of the primary goals in sentencing is to look beyond the element of punishment, to setting the accused on the right path when he/she comes out of prison (rehabilitate and reform). There are basically two types of punishment system in this jurisdiction; fines or imprisonment. Both do not necessarily guarantee that a person will change or be reformed once he completes his sentence or punishment.'

[59.5] Sentencing Generally

Generally, a conviction must be entered before passing sentence, see Ben Tioti v R (Unrep. Criminal Appeal Case No. 26 of 1998; Palmer J). However, if a Court intends to impose a conditional or unconditional discharge under section 35 of the Penal Code (Ch. 26), a conviction should not be recorded, see R v Derick Waeho (Unrep. Criminal Case No. 34 of 1996; Lungole – Awich J; at page 3).

Courts should record their reasons when sentencing, see R v Maeli Rinau (Unrep. Criminal Review Case No. 18 of 1996; Palmer J; at page 3). In that regard refer also to section 10 of the Magistrates' Courts Act (Ch. 20).

Sentences must be imposed for each offence and a 'general sentence' which relates to all offences should never be imposed, see R v Don Rector Nonga (Unrep. Criminal Appeal Case No. 32 of 1996; Muria CJ; at page 6).

When imposing a sentence a Court should take into account the sentences imposed on other defendants in similar circumstances so that there is no 'objectionable disparity' in the sentencing.

The law relating to:

· 'Disparity In Sentencing' is examined commencing on page 961; and

· 'Comparative Sentencing' is examined commencing on page 979.

In R v Maeli Rinau (Unrep. Criminal Review Case No. 18 of 1996) Palmer J commented at page 3:

'Magistrates must record whether there are previous convictions or not. If none was available, at the hearing, then an adjournment should be made and the prosecutor required to produce them. The issue of previous convictions is important when passing sentence and also when considering the question of disqualification under section 28 of the Traffic Act.'

In that regard refer also to section 10 of the Magistrates' Courts Act (Ch. 20).

A Court may disregard 'previous convictions' due to the length of time since such convictions, see R v John Foreman Sukina (Unrep. Criminal Case No. 31 of 1995; Lungole - Awich J).

When sentencing a defendant in his/her 'absence', a court:

[i] should be very cautious as regards the production of previous convictions and unless there is:

[a] an 'admission' by the defendant as to the previous convictions; or

[b] 'strict proof' of the previous convictions in accordance with either subsection (1) or (2) of section 125 of the Criminal Procedure Code (Ch. 7),

the previous convictions should be ignored; and

[ii] should not impose a sentence of imprisonment or as an alternative to a fine without having giving the defendant the opportunity to be heard, see section 86(3) of the Criminal Procedure Code (Ch. 7) & R v Tuto [1980 – 81] SILR 19.

[59.6] Options Available In Sentencing

Whilst the penalty which may be imposed is as prescribed for the offence, see Howard Haomae v R (Unrep. Criminal Appeal Case No. 106 of 2001; Palmer J) & Alphonsus Kopana v R (Unrep. Criminal Case No. 5 of 1996; Muria CJ), a Court has a discretion in imposing what is appropriate for the defendant in the circumstances, see R v Craig A'Aron (Unrep. Criminal Case No. 14 of 1998; Lungole – Awich J; at page 4); George Westerhuis v R (Unrep. Criminal Case No. 144 of 1999; Muria CJ; at page 1) & R v Stephen Asipara (Unrep. Criminal Case No. 25 of 1994; Palmer J; at page 1).

As regards offences committed by 'body corporates', refer to section 51 of the Interpretation & General Provisions Act (Ch. 85).

If appropriate, a medical report should be obtained prior to sentencing, see R v Peter Taku (Unrep. Criminal Case No. 3 of 1995; Palmer J).

However, in respect of 'multiple offences', the Court must take into account the 'totality' principle', see Augustine Laui v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 11 of 1987; Ward CJ; at pages 2 – 3).

The law relating to the 'Totality Principle' is examined commencing on page 941.

Whilst '[j]udges, like everyone, do have sense of mercy, but they have a duty to reflect how serious the law would like an offence to be regarded and punished for', as commented by Lungole – Awich J in R v Ben Tungale, Brown Beu, Nelson Oma, James Sala, Louis Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997; at page 21).

See also: Joy Folanto v R (Unrep. Criminal Appeal Case No. 119 of 1999; Palmer J) & Suiga v R (Unrep. Criminal Case No. 38 of 1990; Ward CJ).

Depending on the circumstances the options in 'sentencing' which may be imposed include:

[i] 'Imprisonment'.

The law in relation to the imposition of 'Imprisonment' is examined commencing on page 934;

[ii] 'Suspended Sentences'.

The law in relation to the imposition of 'Suspended Sentences' is examined commencing on page 936;

[iii] 'Fines'.

The law in relation to 'Fines' is examined commencing on page 943;

[iv] 'Good Behaviour Bond'.

The law in relation to the imposition of a 'Good Behaviour Bond' is examined commencing on page 945;

[v] 'Binding Over Order'.

The law in relation to the imposition of a 'Binding Over Order' is examined commencing on page 946;

[vi] a 'Residence Order'.

The law in relation to the imposition of a 'Residence Order' is examined on page 947;

[vii] a 'Compensation Order'.

The law in relation to the imposition of a 'Compensation Order' is examined commencing on page 948;

[viii] 'Absolute Or Conditional Discharge'.

The law in relation to the imposition of a 'Absolute Or Conditional Discharge' is examined on page 950;

[ix] 'Police Supervision'.

The law in relation to the imposition of 'Police Supervision' is examined on page 951;

[x] 'Property Orders'.

The law in relation to the imposition of 'Property Orders' is examined commencing on page 951; and

[xi] 'Disqualification Of Drivers Licenses'.

The law in relation to the imposition of 'Disqualification Of Drivers Licenses' is examined commencing on page 954.

A sentence may commence [see R v Craig A'Aron (Unrep. Criminal Case No. 14 of 1994; Kabui J; at page 5)] or conclude with the 'Rising of the Court' [see Gerea & others v Director of Public Prosecutions [1984] SILR 161, per Pratt JA at page 174].

Section 35 of the Magistrates' Courts Act (Ch. 7) also provides for 'reconciliation'. The law in relation to 'Reconciliation' is examined commencing on page 952.

See also: sections 49 to 51 of the Interpretation & General Provisions Act (Ch. 85).

Refer also to:

· the chapter which examines the law relating to the 'Criminal Jurisdiction Of The Courts' commencing on page 14; and

· sentencing of 'Juveniles' is examined commencing on page 963.

[59.7] Imprisonment

[59.7.1] Penal Code

Section 24 of the Penal Code (Ch. 26) states (in part):

'(1) All imprisonment for an offence shall be without hard labour.

(2) A person liable to imprisonment for life or any other period may be sentenced for any shorter term.

(3) A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or instead of imprisonment.

(3) Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that is shall be executed concurrently with the former sentence or any part thereof:

Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence.'

[59.7.2] General Principles

In R v Monica Melody (Unrep. Criminal Review Case No. 119 of 1993) Palmer J stated at page 5:

'Magistrates must not be frightened of sending an offender to prison, if the case so warrants it.'

The 'purpose' of 'imprisonment' is to:

[i] deter defendants from re – offending; and

[ii] rehabilitate defendants, see R v John Mark Tau & 16 others (Unrep. Criminal Case No. 58 of 1993; Palmer J; at page 24).

In R v Goldie Pitakaka (Unrep. Criminal Appeal Case No. 5 of 1982) Daly CJ stated:

'This is a case for what used to be called "the short sharp shock" and has now become "the clang of the prison gates" approach, that is, for a custodial sentence of such a duration as to awake an accused sharply to the stupidity of criminal conduct of this kind. The sentence, to have effect in the case of a man of good character, can be of quite a short duration'.

In R v Francis Hori (Unrep. Criminal Review Case No. 118 of 1993) Palmer J stated at page 3:

'[M]itigating factors should be considered prior to making the decision whether to impose a custodial sentence or not.'

As regards the sentencing of 'youthful defendants' to 'imprisonment' refer to:

[i] the law relating to 'Youthfulness' as a 'mitigating factor' which is examined on page 974; and

[ii] the law relating to the sentencing of 'Juveniles' commencing on page 963.

A sentence of 'imprisonment' combined with the payment of a fine may be imposed in appropriate circumstances, see section 24(3) of the Penal Code (Ch. 26), section 8 of the Criminal Procedure Code (Ch. 7), Inito v R [1983] SILR 177 & Ngina v R [1987] SILR 35.

Whilst 'mercy' may be shown when imposing a sentence of 'imprisonment', see R v Perter Taku (Unrep. Criminal Case No. 3 of 1995; Palmer J; at page 3), courts have a duty to reflect how serious the law would like an offence to be regarded and punished for, see R v Ben Tungale, Brown Beu, Nelson Oma, James Sala, Louis Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997; Lungole – Awich J; at page 21).

As regards the 'imprisonment' of 'parliamentarians', refer to Ngina v R [1987] SILR 35 & R v John Foreman Sukina (Unrep. Criminal Case No. 3 of 1995; Lungole – Awich J).

[59.7.3] Suspended Sentences

[A] Penal Code

Section 44 of the Penal Code (Ch. 26) states:

'(1) Subject to the provisions of subsections (2) and (3) of this section, a court which passes a sentence of imprisonment on any offender for a term not more than two years for any offence, may order –

(a) that the sentence shall not take effect during a period specified in the order; or

(b) that after the offender has served part of the sentence in prison, the remainder of the sentence shall not take effect during a period specified in the order,

unless during the period specified in the order, the offender commits another offence punishable with imprisonment and a court thereafter order under section 45 that the original sentence shall take effect:

Provided, that the period specified in the order shall not be less than one year or more than two years.

(2) The provisions of subsection (1) of this section shall not apply where the offence involved the use or the illegal possession of a weapon.

(3) A court shall not deal with an offender by means of a suspended sentence unless the case appears to the court to be one in respect of which a sentence of imprisonment would have been appropriate in the absence of any power to suspend such a sentence by an order under subsection (1) of this section.

(4) A court which passes a suspended sentence on an offender for an offence shall not make a probation order in respect of another offence of which he is convicted before the court or for which he is dealt with by the court on the same occasion.

(4) Where a court passes a suspended sentence on an offender in respect of an offence and a term of imprisonment in respect of another offence the court shall direct that the suspended sentence be concurrent with the term of imprisonment.

(6) On passing a suspended sentence the court shall explain to the offender in ordinary language his liability under section 45, if during the period of suspension he commits a subsequent offence punishable by imprisonment.' (emphasis added)

See also: sections 45 ['Subsequent offence during period sentence is suspended']; 46 ['Discovery of further offence'] & 47 ['Suspended sentence supervision order'] of the Penal Code (Ch. 26).

[B] General Principles

Sentences should not be suspended on the basis that a prison is not fit to hold prisoners, see R v Sogavari Sione (Unrep. Criminal Review Case No. 139 of 2000 consolidated with Criminal Review Cases Nos. 138 of 2000; 164 of 2000 & 35 of 2001; Kabui J; at page 8).

In Criminal Case No. 710 of 1991 (Untitled) Muria J stated at pages 1 – 2:

'The whole object of a suspended sentence is to avoid sending the accused to prison. Now by making a suspended sentence to take effect at the end of an existing prison sentence will not guarantee that during the period of suspension the accused will not be sent to prison. It may well be that within the period of suspension the accused faces another prison sentence. Such a situation cannot be said to be compatible with the spirit and intention of the 1987 Act which creates the provisions for suspended sentences.

It is therefore in keeping with the spirit and intention of the Act that it would be bad sentencing practice to make a suspended sentence consecutive to an existing prison sentence. In the U.K. the Court of Appeal has repeatedly held that it is not a proper sentencing practice to impose a suspended sentence to be consecutive to an effective prison sentence: Sapiano (1968) 52 Cr App R 674; Alan Flanders (1968) 52 Cr App R 676; Baker (1971) 55 Cr App R 182 and Butters and Fitzgerald (1971) 55 Cr App R 515. It will be seen from those English cases that under the Criminal Justice Act, 1967, sc.39, there is no statutory bar to passing two sentences of imprisonment either concurrent or consecutive, one of which is to take effect immediately and the other of which is to be suspended nor is there any bar as a matter of law upon passing sentences of imprisonment one to follow the other consecutively the one immediate and the other suspended. But all those cases clearly laid down what must be, not a matter of law, but a matter of good sentencing practice when the courts are considering suspended sentences.

In Solomon Islands, the Court should in my opinion bear in mind the principles expounded in those cases when considering suspended sentences. However, when the courts are considering passing a suspended sentence on an accused person for an offence and a term of imprisonment in respect of another offence the courts in Solomon Islands are obliged as a matter of law to direct that the suspended sentence be made to run concurrent with the term of imprisonment. This is expressly laid down in S.43A(5) [now section 44] which states:

"(5) where a court passes a suspended sentence on an offender in respect of an offence and a term of imprisonment in respect of another offence the courts shall direct that the suspended sentence be concurrent with the term of imprisonment."

The above provision is mandatory and courts must, not only as a matter of practice but as a matter of law observe.' (emphasis added) [words in brackets added]

In R v Monica Melody (Unrep. Criminal Review Case No. 119 of 1993) Palmer J stated at page 5:

'Magistrates must not be frightened of sending an offender to prison, if the case so warrants it. The use of suspended sentences of the other hand should be very carefully considered.

[…]

[…] It is wrong in principle to increase the length of the sentence simply because the court intends to suspend it. (Trowbridge [1975] CrimLR 295, Webb [1979] CrimLR 466).

No reason too is given by the learned magistrate as to the reason for suspension. Again it is important to state clearly on the record, the reasons for the suspension.'

In R v Sogovari Sione (supra) Kabui J stated at pages 6 – 7:

'The term of imprisonment imposed for each offence did reflect the leniency attitude shown by the Court towards the prisoner having pleaded guilty, being a youth misguided by others and being unemployed despite having served a previous term of imprisonment for simple larceny. Suspending the terms of imprisonment imposed for two years was an act of further leniency. D. A. Thomas, in his article Current Developments in Sentencing – The Criminal Justice Act in Practice at page 211 in the Criminal Law Review, May, 1969, discusses some approaches by the Courts in the sentencing process in criminal law. He says one approach to dealing with suspended sentences was as stated by Lord Parker, CJ. In R v O'Keefe [1969] 1 AER 426. At pages 427 – 428, His Lordship said "This court would like to say as emphatically as they can that suspended sentences should not be given when, but for the power to give a suspended sentence, a probation order was the proper order to make. After all, a suspended sentence is a sentence of imprisonment. Further, whether the sentences comes into effect or not, it ranks was a conviction, unlike the case where a probation order is made, or a conditional discharge is given. Therefore, it seems to the court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible courses such as [an ab]solute discharge, conditional discharge, probation order, fines, and then say to itself: this is a case for imprisonment and the final question, it being a case for imprisonment, is immediate imprisonment required, or can I give a suspended sentence?"

The other approach is that there can be no suspension until a custodial sentence has been imposed (See R v Wallance) [1969] Cri[m] Law Review at 211). In other words, the normal principles of sentencing applies as regards imprisonment for less than 2 years before the Court decides the suspension of the operation of the sentence. There are however limiting factors. First is where the offender has already served a sentence of imprisonment in the recent past. The Court would be reluctant to suspend the sentence for a subsequent offence on the basis that the offender has not learned from a previous prison experience. The absence of previous prison sentence matters most because suspended sentence have been imposed where previous convictions results in a fine or a conditional discharge. Second is where the offender has committed a serious of offences, or the offence involved an element of planning or it involved breach of trust or where substantial allowance has already been made for the basis for a suspended sentence. Third is where the offender is typically a person of good character with minor previous convictions. The Court would normally opt to suspend the prison sentence imposed. There are of course cases which fall in between these categories of cases. There were also cases which showed that the Courts have shifted to another basis for deciding the imposition of suspended sentences as opposed to the earlier position described above. That is to say, there have been cases where suspended sentences were ordered solely on the ground that the offender was a very good character and that offending again was a remote possibility.'

In Edward Fuiadi v R [1988 – 89] SILR 150 Ward CJ held at page 152:

'[I]n cases of breach of trust, the deterrent aspect of the sentence [… is] an important factor. The enormous majority of honest employees who resist the temptation to steal their employer's property must see that those who succumb are punished. It is, therefore, only in the most exceptional circumstances that it would be appropriate to suspend a sentence of imprisonment imposed for larceny by servant.' (emphasis added) [word in brackets added]

A Court may impose a suspended sentence and a fine, see R v King (1970) 54 CrAppR 362 [[1970] 2 AllER 249; [1970] 1 WLR 1016] at page 363.

[C] Use Of Weapons

Section 44(2) of the Penal Code (Ch. 26) states:

'The provisions of subsection (1) of this section shall not apply where the offence involved the use or the illegal possession of a weapon.' (emphasis added)

In R v Daniel Upang & Simister Kimisi & R v Cheery Bula (Unrep. Criminal Appeal Case Nos. 19 & 20 of 1991) Muria J held at page 4:

'When one turns to section 43A(1) [now section 44(2)], it can be seen that the court has the power subject to subsections (2) and (3) to suspend a sentence of imprisonment imposed on any offender for a term not more than two years for any offence. However Parliament intended that a particular offence must be excluded when the court is exercising its powers under subsection (1). Subsection (1) was therefore enacted so that the court's power to suspend sentences does not apply "where the offence involved the use or illegal possession of a weapon". (emphasis added) [words in brackets added]

In R v Francis Hori & R v Monica Melody (Unrep. Criminal Review Case Nos. 118 & 119 of 1993) Palmer J stated at page 1:

'[A] court has no power of suspension [under section 44 of the Penal Code (Ch. 26)] where a weapon is used in the commission of the offence.' [words in brackets added]

See also: R v Misiben (Unrep. Criminal Review Case No. 15 of 1994; Palmer J).

[D] Cases In Which Suspended Sentences Have Been Imposed

The following are cases in which a 'suspended sentence' had been imposed:

· R v Fred Gwali & John Morrison (Unrep. Criminal Case Nos. 21 of 1997 & 1 of 1998; Kabui J) [Stealing Postal Packets];

· R v John Mark Tau & 16 others (Unrep. Criminal Case No. 58 of 1993; Palmer J) [Forgery / Receiving / Obtaining Money By False Document];

· Joy Folanto v R (Unrep. Criminal Appeal Case No. 119 of 1999; Palmer J) [Pregnant Defendant];

· R v Robert Mani (Unrep. Criminal Appeal Case No. 29 of 1997; Palmer J) [Break and Enter];

· R v Craig A'Aron (Unrep. Criminal Case No. 14 of 1998; Kabui J) [Defilement of a girl under 13 years];

· R v Wilson Iroi (Unrep. Criminal Case No. 17 of 1991; Muria J) [Defilement of a girl under 13 years];

· R v Don Rector Nonga (Unrep. Criminal Appeal Case No. 32 of 1996; Muria CJ) [Simple Larceny & Forgery];

· R v Nelson Ta'au (Unrep. Criminal Case No. 95 of 1993; Lungole – Awich J) [Conversion];

· Richard Selwyn v R (Unrep. Criminal Case No. 25 of 1991; Muria J) [Simple Larceny];

· Untitled (Unrep. Criminal Case No. 710 of 1991; Muria J) [Larceny from Warehouse];

· R v John Palmer (Unrep. Criminal Case No. 10 of 1991; Ward CJ) [Threatening Violence];

· Joel Likilua & Allen Kokolobu v R [1988 – 89] SILR 148 [Break & Enter];

· Hola, Tome & Lai v R (Unrep. Criminal Case No. 15 of 1992; Muria ACJ) [Break & Enter];

· Annette Quila v R (Unrep. Criminal Case No. 19 of 1995; Palmer J) [Break & Enter];

· R v Muliolo Takoa (Unrep. Criminal Case No. 115 of 1993; Muria CJ) [Embezzlement];

· R v Salome Lamtoa Irobako (Unrep. Criminal Case No. 24 of 1991; Muria ACJ);

· Director of Public Prosecutions v Maesala [1988 – 89] SILR 145 [Incest];

· Director of Public Prosecutions v Jones (Unrep. Criminal Appeal Case No. 37 of 1990; Ward CJ) [Fraudulent Conversion]; &

· R v Maesala (Unrep. Criminal Case No. 39 of 1988; Ward CJ) [Incest].

[E] Reactivating Suspended Sentences

R v Munday (1972) 56 CrAppR 220 Sachs LJ, delivering the judgment of the Court, held at page 223:

'Whilst, of course, it is never part of the function of a court which may have to consider activating a suspended sentence in any way to review its propriety, nonetheless there are cases where justice cannot be done without fitting into the pattern of events leading to the further conviction the facts which led to the suspended sentence. To that extent, therefore, it may then be necessary on the second occasion for the court to inform itself of the circumstances in which the suspended sentence was passed in order that such proper assessment may be made of the overall position so as to determine the sentence to be passed and make plain the grounds on which it is acting.'

[59.7.4] Concurrent Or Consecutive Sentences

[A] Criminal Procedure Code

Section 9 of the Criminal Procedure Code (Ch. 7) states:

'(1) When a person is convicted at one trial of two or more distinct offences the court may sentence him, for such offences, to the several punishments prescribed therefore which such court is competent to impose; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishment shall run concurrently.

(2) In the case of consecutive sentences it shall not be necessary for a Magistrates' Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court:

Provided that the aggregate punishment shall not exceed twice the amount of punishment which such Magistrates' Court is competent to impose in the exercise of its ordinary jurisdiction.

(3) For the purposes of appeal or confirmation the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.' (emphasis added)

The law relating to the 'Criminal Jurisdiction Of The Courts' is examined commencing on page 14.

[B] General Principles

In R v Daniel Upang & Simister Kimisi & R v Cherry Bula (Unrep. Criminal Appeal Case No. 19 & 20 of 1991) Muria J stated at page 2:

'It is plain from section 9(1) that in Solomon Islands when a person is convicted of two or more distinct offences and the court sentences him to imprisonment for the offences the court is empowered to order the imprisonment sentences to commence one after the expiration of the other. In other words, it can order the prison sentences to run consecutively "unless the court directs that such punishment shall run concurrently".

The intention of section 9(1) must be that while empowering the court to pass imprisonment sentences to run consecutively where a person is convicted of several offences at one trial, the court is also given the power to direct sentences passed on those several offences to run concurrently. As such, the underlying duty thrown upon the court is to state clearly whether the sentences should run consecutively or concurrently. The Practice Direction (1962) 46 CrAppR 119 and subsequent cases clearly support this view. It was stated in R v Anthony [1962] CrimLR 259 that sentences imposed in respect of each count and whether those sentences were to run concurrently or consecutively should be expressed with clarity.'

However, if a defendant is sentenced to a term of imprisonment and a suspended sentence, the suspended sentence must be imposed concurrent to the term of imprisonment, see section 44(5) of the Penal Code (Ch. 26).

In Stanley Bade v R [1988 – 89] SILR 121 Ward CJ stated at page 125:

'When considering sentence for a number of sentences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. It is trite to point out that a man who commits, say, five offences should receive a heavier sentence than a man who only commits one of them.

However, there are two situations where this rule must be modified. The first, that where a number of offences arise out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences, does not concern this appeal save to say that the learned magistrate correctly applied this principle in ordering a concurrent term for the malicious damage caused to Solo Lae's house during the burglary. The second occasion for modifying the general rule arises where the aggregate of sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case. Thus, once the court has decided what is the appropriate sentence for each offence, it should stand back and look at the total. If that is substantially over the normal level of sentence appropriate to the most serious offence for which the accused is being sentenced, the total should be reduced to a level that is "just and appropriate" to use the test suggested in Smith v R [1972] CrimLR 124. Equally, if the total sentence, although not offending that test, would still in the particular circumstances of the person being sentenced, be a crushing penalty, the court should also consider a reduction of the total.

Having decided the proper penalty for each individual offence but feeling the total is too high, it is better to achieve a reduction by making some or all concurrent rather than to reduce the length of the individual sentences whilst leaving them consecutive. The former course results in sentences that still reflect the gravity of each individual charge.' (emphasis added)

In Augustine Laui v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 11 of 1987) Ward CJ held at pages 2 – 3:

'When sentencing at the one time for two or more offences, the court will always need to consider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, the sentences should be concurrent, if not then consecutive sentences are appropriate subject to the overall total.

The test of a single transaction is not a matter of time but whether the offences really form part of a single attack on some other person's right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously, would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time should properly be made concurrent.

[…]

The so – called totality principle referred to by counsel applies in two ways. Where concurrent sentences have been passed because of the single transaction principle, the court must ensure that the gravity of the offence is properly represented by the sentence for the principal offence. Where consecutive sentences are passed for a number of offences, the court must not just consider whether each sentence is appropriate for each offence but look also at the total to ensure it is not out of proportion to the overall circumstances. Where it does appear to be too great, the court should reduce the total term of imprisonment by making some or all the sentences concurrent and not by reducing the individual sentences below an appropriate level for the particular offence for, by so doing, the impression given on the subsequent record of conviction is of a series of relatively minor offences.

An exception to this single transaction rule, and one that does not arise in this appeal, is where the maximum sentence for a particular offence is clearly inadequate. Such a situation could arise, for example, in sentencing a series of takings of motor vehicles especially where the offender has been convicted of the same offence previously. In such a case the court may well feel it is appropriate to ensure a proper total by making the sentences consecutive.' (emphasis added)

See also: Sau v R [1982] SILR 65 & R v Sogavari Sione (Unrep. Criminal Review Case No. 139 of 2000 consolidated with Criminal Review Cases Nos. 138 of 2000; 164 of 2000 & 35 of 2001; Kabui J; at pages 4 – 5).

[59.7.5] Remissions

Defendants may be granted a 'one – third good behaviour remission', see R v Daniel Upang & Simister Kimisi & R v Cherry Bula (Unrep. Criminal Appeal Case Nos. 19 & 20 of 1991; Muria J) & R v Misiben (Unrep. Criminal Review Case No. 15 of 1994; Palmer J).

Division 6 of The Prisons Regulations (Ch. 111) is titled, 'Remission of Sentence & Release on License'.

Section 114(1) of those Regulations states:

'Convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences, for a period exceeding one month, may for industry and good conduct be granted a remission of one – third of their sentence or sentences:

Provided that in no case shall –

(i) any remission granted result in the release of a prisoner until he has served one month;

(ii) any remission be granted to a prisoner sentenced to imprisonment for life or to be detained during the Her Majesty's pleasure.' (emphasis added)

A court determining sentence should not increase the sentence in order to take account of the possibility of 'remission', see R v Ouless & Ouless [1986] CrimLR 702.

See also: R v Stephen Asipara (Unrep. Criminal Case No. 25 of 1994; Palmer J; at page 2) & R v Maguire & Enos (1957) 40 CrAppR 92.

[59.7.6] Discretionary Life Sentences

In Johnson Tariani v R [1988 – 89] SILR 7 Connolly P and Savage JA, in their joint judgment, held at page 11 that the proper criteria to be followed when considering whether to impose a 'discretionary life sentence' is as follows:

'(1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence', [see R v Hodgson (1967) 52 CrAppR 113].'

See also: Attorney General's Reference No. 32 of 1996; R v Whittaker [1997] 1 CrAppR(S) 261; Attorney General's Reference No. 76 of 1996; R v Baker [1997] 1 CrAppR(S) 81; R v Chapman [2000] 1 CrAppR 77; R v Willoughby [1999] 2 CrAppR(S) 18; R v Baker [1997] 1 CrAppR(S) 81; R v Hatch [1997] 1 CrAppR(S) 22; R v Picker [1970] 2 QB 161; [1970] 2 WLR 1038; [1970] 2 AllER 226; (1970) 54 CrAppR 330; R v Thornton (1994) 15 CrAppR(S) 51; R v Pither (1979) 1 CrAppR(S) 209; R v Wilkinson (1983) 5 CrAppR(S) 105; R v Morgan (1988) 86 CrAppR 307; R v O'Dwyer (1988) 86 CrAppR 313 & R v Dempster (1987) 85 CrAppR 176.

[59.8] Fines

[59.8.1] Penal Code

The following sections of the Penal Code (Ch. 26) should be considered regarding the imposition of a 'fine' generally:

Section 25 states:

'Where a fine is imposed under any law, then in the absence of express provisions relating to such fine in such law the following provisions shall apply –

(a) where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive;

(b) where the sum to which the fine may amount is expressed, any lesser fine may be imposed;

(c) in the case of an offence punishable with a fine or a term of imprisonment the imposition of a fine or a term of imprisonment shall be a matter for the discretion of the court;

(d) in the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment and in every case of an offence punishable with fine only in which the offender is sentenced to a fine the court in passing sentence may, in its discretion --

(i) direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and also

(ii) issue a warrant for the levy of the amount on the immovable and movable property of the offender by distress and sale under warrant:

Provided that if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue a distress warrant.' (emphasis added)

Section 26 states:

'(1) The term of imprisonment to which a person may be sentenced by a court in default of payment of a fine shall be such term as in the opinion of the court will satisfy the justice of the case but shall not exceed the maximum fixed by the following scale –

Amount					Maximum Period

Not exceeding $2					7 days
Exceeding $2		but not exceeding $4			14 days
"	$4		"	$20	6 weeks
"	$20		"	$180	2 months
"	$80		"	$200	3 months
"	$200				6 months

(2) The imprisonment which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.' (emphasis added)

See also: sections 28 ('Distress'); 29 ('Suspension of execution of sentence of imprisonment in default of fine'); 30 ('Commitment in lieu of distress'); 31 ('Payment after commitment') & 38 ('Payment of fine or compensation by parent or guardian of offender under sixteen years of age').

[59.8.2] General Principles

A Court can not impose a fine in excess of the maximum penalty prescribed by law, see R v Tuto [1980 – 81] SILR 19.

A fine as an alternative to a term of imprisonment must be a true alternative, see R v Hall (1968) 52 CrAppR 736 at page 738.

Generally in cases in which a defendant does not have the means of making the payment of a fine his/her family will provide financial support.

In Inito v R [1983] SILR 177 Daly CJ commented at page 178:

'The order for payment of a large fine as well as imprisonment […] has a part to play in Solomon Islands because of […] the customary support system. In Solomon Islands this happens at all levels of society. In return for that support the appellant will owe a duty towards those who have contributed and that, in itself, is an effective sanction against further misdemeanour.'

See also: Konare v Director of Public Prosecutions [1984] SILR 33.

A sentence of imprisonment combined with the payment of a fine may be imposed in appropriate circumstances, see section 24(3) of the Penal Code (Ch. 26), section 8 of the Criminal Procedure Code (Ch. 7), Inito v R (supra) & Ngina v R [1987] SILR 35.

A 'default period' for a fine should not be imposed in the absence of a defendant, see section 86(3) of the Criminal Procedure Code (Ch. 7) & R v Tuto (supra) at page 22.

[59.9] Good Behaviour Bond

The following sections of the Penal Code (Ch. 26) should be considered regarding the imposition of a 'Good Behaviour Bond':

Section 32(1) states:

'A person convicted of an offence may, instead of or in addition to any punishment to which he is liable, be ordered to enter into his own recognisance, with or without sureties, in such amount as the court thinks fit, conditioned that he shall keep the peace and be of good behaviour for a time to be fixed by the court, not exceeding two years, and may be ordered to be imprisoned until such recognisance, with sureties if so directed, is entered into; but so that the imprisonment for not entering into the recognisance shall not extend for a term longer than six months:

Provided that no order shall be made under this section where the person convicted has been sentenced to a term of imprisonment of more than six months.' (emphasis added)

Section 33 states:

'(1) In any case in which a person is convicted before any court of any offence, if it appears to the court before which he is convicted that having regard to the circumstances including the nature of the offence and the character of the accused it is expedient to release the offender on probation, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, and during such period (not exceeding two years) as the court may direct, to appear and receive sentence when called upon and in the meantime to keep the peace and be of good behaviour.

(2) If at any time the court which convicted the offender is satisfied that the offender has failed to observe any of the conditions of his recognisance, it may issue a warrant for his apprehension.

(3) An offender when apprehended on any such warrant shall be brought forthwith before the court by which the warrant was issued and such court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned for his appearing for sentence. Such court may, after hearing the case, pass sentence.'

By virtue of section 34 of the Penal Code (Ch. 26), the provisions of sections 111 ['Discharge of sureties'], 112 ['Death of sureties'] & 114 ['Forfeiture of recognisance'] of the Criminal Procedure Code (Ch. 7) apply mutatis mutandis, ie., with any necessary changes, to recognisances taken under sections 32 or 33 of the Penal Code (Ch. 26).

See: R v Marlow Justices, Ex parte O'Sullivan [1984] 2 WLR 107; [1984] QB 381; [1983] AllER 578; (1984) 78 CrAppR 13.

[59.10] Binding Over Order

Section 32(2) of the Penal Code (Ch. 26) states:

'In addition to the powers conferred by subsection (1) of this section any Judge or Magistrate shall have power in any trial before him, whether or not the complaint be dismissed, to bind both the complainant and defendant with or without sureties, to keep the peace and be of good behaviour for a period not exceeding one year and may order any person so bound, in default of compliance with the order, to be imprisoned for three months or until such earlier time as he so complies:

Provided that a defendant who has been sentenced to more than six months' imprisonment shall not be bound over under this subsection:

And provided further that a complainant shall not be bound over under the powers contained in this subsection unless he shall have been given an opportunity to address the court personally or by an advocate as to why he should not be bound over.' (emphasis added)

No other conditions other than those specified should be imposed, see R v Randall (1986) 8 CrAppR(S) 433; [1987] CrimLR 254.

The 'Binding Over Order' of a defendant to keep the peace is not a sentencing option, see Director of Public Prosecutions v Glass; Director of Public Prosecutions v Kuper & Kuper v Director of Public Prosecutions [1984] SILR 28.

In R v Maybilyn Oli (Unrep. Criminal Review Case No. 623 of 1996) Palmer J stated at page 1:

'I note […] in the record of proceedings that the learned Magistrate indicated that he had intended to impose a good behaviour bond on the victim as well, but could not because of her absence. I do not think that should be an impediment. What he can do in these circumstances, is to adjourn the case and issue a summons for the victim to attend court on the adjournment date to show cause why she should not be bound over as well.'

In Shaw v Hamilton (1982) 75 CrAppR 288 [[1982] 2 AllER 718; [1982] 1 WLR 1308; [1982] CrimLR 442] Donaldson LJ, delivering the judgment of the Court, stated at page 290:

'In order to justify making the binding – over order in the first instance the magistrates had to satisfy themselves on admissible material before them that unless steps were taken to prevent it there might be a breach of the peace in the future. A binding – over order is a preventative order, but it has to be justified by existing evidence.'

In R v South Molton Justices, Ex parte Ankerson & others (1990) 90 CrAppR 158 Taylor LJ stated at pages 161 – 162:

'When justices have it in mind to order a binding over, before they do so

(1) there should be material before them justifying the conclusion that there is a risk of a breach of the peace unless action is taken to prevent it.

(2) They must indicate to the defendant their intention to bind him over and the reasons for it so that he or his lawyer can make representations.

(3) They must obtain consent to the bindover from the defendant himself.

(4) Before fixing the amount fo the recognizance they should inquire as to the defendant's means.

(5) The binding over should be for a finite period.' (emphasis added)

See also: R v James Rasim & four others (Unrep. Criminal Case No. 25 of 1990; Ward CJ); Veater v Glennon & others [1981] 1 WLR 567; [1981] 2 AllER 304; [1981] CrimLR 563; (1981) 72 CrAppR 331; South West London Magistrates' Court, Ex parte Brown [1974] CrimLR 313; R v Marylebone Metropolitan Stipendiary Magistrate, Ex parte Okunnu (1988) 87 CrAppR 295; R v Central Criminal Court, Ex parte Boulding [1984] 2 WLR 321; [1984] QB 813; [1984] 1 AllER 766; (1984) 79 CrAppR 100 & Lansbury v Riley [1911 – 13] AllER Rep 1059; [1914] 3 KB 229.

[59.11] Residence Order

A person convicted under sections 175 ['Idle & disorderly persons'] and 176 ['Rogues & vagabonds'] of the Penal Code (Ch. 26) may in addition to or in lieu of any other penalty, be directed by a Magistrate to be conveyed to:

[i] his/her place or province in Solomon Islands; or

[ii] the place or province in Solomon Islands in which he/she is ordinarily resident,

and reside there for such period not exceeding three years as may be specified in the order.

If any such order is made additional to a sentence of imprisonment the order shall take effect forthwith upon the termination of such sentence.

If the defendant fails to comply with the provisions of such order he/she shall be guilty of an offence and shall be liable to imprisonment for six months.

Furthermore, section 177 of the Penal Code (Ch. 26) states:

'(1) Where the Magistrate makes an order under sections 175 or 176, he may in the order direct that the person convicted be subject to the supervision of a suitable person nominated for the purpose by the court, for such period as may be specified in the order, not exceeding the period under which the convicted person is required to reside in the place or province.

(2) The person nominated pursuant to subsection (1) of this section shall be responsible to the supervision of the convicted person and submit to the court such reports and information as may be required in terms of the order.'

'Residence orders are an additional penalty for offences of an antisocial nature […]. […] A 'residence order' is intended to remove troublemakers from the area where they are causing trouble. It is, at the same time, a protection for the community and a punishment for the offender. It is certainly not an order that the offender may try and, if he doesn't enjoy what he finds, simply ignore', see Iro v R [1990] SILR 194 at pages 195 – 196. (emphasis added)

[59.12] Compensation Order

[59.12.1] Statutory Provisions

The following sections of the Penal Code (Ch. 26) should be considered regarding the imposition of a 'Compensation Order':

Section 27 states:

'Any person convicted of an offence may be ordered to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment.' (emphasis added)

Section 28(1) states:

'When a court orders money to be paid by an accused person […] for compensation […], the money may be levied on the movable and immovable property under warrant. If he shows sufficient movable property to satisfy the order his immovable property shall not be sold.'

See also: sections 30 ['Commitment in lieu of distress']; 31 ['Payment after commitment'] & 38 ['Payment of fine or compensation by parent or guardian of offender under sixteen years of age'].

[59.12.2] General Principles

In R v Paul Rakaimua (Unrep. Criminal Case No. 24 of 1995) Muria CJ commented at page 5:

'Compensation is part of the sanctions used in custom among the people of this country to settle grievances and to make peace. It is also a form of punishment for committing wrongs against a person or community or tribe. It is therefore appropriate in cases such as the present that some form of reparation is made.'

See also: R v Muliolo Takoa (Unrep. Criminal Case No. 115 of 1993; Muria CJ).

All complainants are entitled to be re – imbursed as a consequence of the commission of an offence. Otherwise, defendants will not be properly sentenced and complainants will not be given the opportunity to be re – imbursed for their loss. In the case of multiple defendants, the loss incurred for each offence is to be divided equally among all of the defendants. Whether a defendant can pay 'Compensation' is not a consideration of the RSIP, but an issue for the Court to consider.

Prosecutors are to:

[i] make applications for 'Compensation', after ensuring that all relevant information has been collected by the respective Arresting / Investigating Officer; and

[ii] advise their respective Officer – in – Charge if such information is not provided.

All communication in respect of 'Compensation' is to be recorded in the 'Diary Of Action Taken'.

[59.12.3] Compensation Factors

The following factors should be taken into account in respect of applications for 'Compensation':

[i] Nature of the Injuries

[a] Clearly outline the extent of the injuries;

[b] Specify the duration of any pain or discomfort; and

[c] Outline how the injury affected the complainant's life.

[ii] Mental Anguish Caused

Outline whether the complainant has suffered mental anguish as a direct result of the commission of the offence.

[iii] On – Going Problems

[a] Outline as per medical and / or dental advice;

[b] Be Specific as to the extent of such problems, duration of the problems and what treatment will be required in the future; and

[c] Outline medical and / or dental expenses currently incurred and to be incurred in the future.

[iv] Wages

[a] Specify any loss of wages?;

[b] Explain why the complainant could not work;

[c] Specify what was the amount of money lost?; and

[d] Specify the expected loss of wages in the future.

[v] Type Of Property

[a] Detail the property in question;

[b] Specify the condition of the property prior to the commission of the offence; and

[c] Specify the value of the property prior to the commission of the offence.

[vi] Damage / Destruction

[a] Specify the extent of the damage or destruction; and

[b] Explain how the property was damaged or destroyed as a result of the commission of the offence.

[vii] Repair Costs

[a] Explain what has to be done to ensure that the property is in the same condition as it was prior to the commission of the offence; and

[b] Outline the cost of the repair.

[viii] Insured Property

[a] Specify whether the property insured?;

[b] Specify whether the complainant paid out by the insurance company?;

[c] Specify the amount of such payment?;

[d] Specify any excess borne by the complainant?; and

[e] If the complainant has been paid out, specify what amount was paid out by the complainant?

See: R v Church (1971) 55 CrAppR 65.

[59.13] Absolute Or Conditional Discharge

Section 203 of the Criminal Procedure Code (Ch. 7) states:

'The court having heard both the prosecutor and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or may, pursuant to the provisions of section 35 of the Penal Code, without proceeding to conviction, if it is of opinion that it is not expedient to inflict any punishment notwithstanding that it thinks the charge against the accused it proved, make an order dismissing the charge either absolutely or conditionally.' (emphasis added)

Section 35 of the Penal Code (Ch. 26) states:

'Where, in any trial, the court thinks that the charge against the accused person is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge either absolutely or conditionally.' (emphasis added)

[59.14] Police Supervision

Section 40 of the Penal Code (Ch. 26) states:

'(1) When any person, having been convicted of any offence punishable with imprisonment for a term of three years or upwards, is again convicted of any offence punishable with imprisonment for a term of three years or upwards, the court, may, if it thinks fit, at the time of passing sentence of imprisonment on such person, also order that he shall be subject to police supervision as hereinafter provided for a term not exceeding five years from the date of the expiration of such sentence.

(2) If such conviction is set aside on appeal or otherwise, such order shall become void.

(2) Every person subject to police supervision, and who is at large in Solomon Islands, shall

(a) report himself personally once in each month to the officer in charge of the police station nearest to his place of residence at such time as may be directed by such police officer, or as may be prescribed by rules under this section; and

(b) notify the place of his residence and any change of such residence at such time and place as in such manner and to such person as may be prescribed by rules under this section.

(3) If any person subject to police supervision who is at large in Solomon Islands refuses or neglects to comply with any requirement prescribed by this section or by any rule made thereunder, such person shall unless he proves to the satisfaction of the court before which he is tried that he did his best to act in conformity with the law, be guilty of an offence and liable to imprisonment for six months.

(5) The Chief Justice may make rules for carrying out the provisions of this section.'

[59.15] Property Orders

Section 157 of the Criminal Procedure Code (Ch. 7) states:

'Where, upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order –

(a) that the property or a part of thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored, either to him or to such other person as he may direct; or

(b) that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.' (emphasis added)

Section 158 of the Criminal Procedure Code (Ch. 7) states (in part):

'(1) If any person guilty of any offence as is mentioned in Parts XXVII to XXXIV, both inclusive, of the Penal Code, in stealing, taking, obtaining, extorting, converting, or disposing of, or in knowingly receiving any property, is prosecuted to conviction by or on behalf of the owner of such property, the property shall be restored to the owner or his representative.

(2) In any case in this section referred to, the court before whom such offender is convicted shall have power to award writs of restitution for the said property or to order the restitution thereof in a summary manner:

Provided that nothing in this section shall apply to the case of any valuable security which has been in good faith paid or discharged by some person liable to the payment thereof, or, being a negotiable instrument, has been in good faith taken or received by transfer or delivery by some person for a just and valuable consideration without any notice or without reasonable cause to suspect that the same has been stolen.

(3) On the restitution of any stolen property if it appears to the court by the evidence that the offender has sold the stolen property to any person, that such person has had no knowledge that the same was stolen, and that any moneys have been taken from the offender on his apprehension, the court may, on the application of such purchaser, order that out of such moneys a sum, not exceeding the amount of the proceeds of such sale, be delivered to the said purchaser.

(4) The operation of any order under this section shall (unless the court before which the conviction takes place directs to the contrary in any case in which the title to the property is not in dispute) be suspended --

(a) in any case until the time for appeal has elapsed; and

(b) in a case where an appeal is lodged, until the determination of the appeal,

and in cases where the operation of any such order is suspended until the determination of the appeal, the order shall not take effect as to the property in question if the conviction is quashed on appeal.' (emphasis added)

As regards defendants convicted under sections 91 ['Official corruption'], 92 ['Extortion by public officers']; 93 ['Public officers receiving property to show favour']; 117 ['Compounding felonies'] or 118 ['Compounding penal actions'] of the Penal Code (Ch. 26), refer to section 43 of that Code ['Forfeiture'].

[59.16] Reconciliation

[59.16.1] Magistrates' Courts Act

Section 35(1) of the Magistrates' Courts Act (Ch. 20) states:

'In criminal cases a Magistrates' Court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any offence of a personal or private nature not amounting to felony and not aggravated in degree, on terms of payment of compensation or other terms approved by such Court, and may thereupon order the proceedings to be stayed or terminated.' (emphasis added)

[59.16.2] Practice Direction

When a Magistrate is considering 'reconciliation', he/she should comply with Practice Direction No. 1 of 1989 issued by Ward CJ as follows:

Reconciliation under section 35(1) Magistrates' Courts Act

'When a magistrate is considering reconciliation of a criminal case under section 38(1) [now section 35] of the Magistrates' Courts Act, it is essential that he satisfies himself the reconciliation is genuine and has been freely accepted by the complainant. In order to do this, it will usually be necessary for the complainant to attend and to be questioned by the court. It is only in the most exceptional circumstances that reconciliation should be accepted without the attendance of the complainant and then only where there is clear evidence from the complainant of his agreement.

The scope of reconciliation is limited by the section to cases of common assault and "any offence of a personal or private nature not amounting to felony and not aggravated in degree." The practice of allowing reconciliation in aggravated cases must stop. Examples of cases where reconciliation should not be accepted include assaults causing actual bodily harm by more than one person or involving the use of weapons. Criminal trespass by night should not be reconciled where there is any evidence of an intention to steal and simple larceny is, of course, excluded because it is a felony.

Reconciliation should never be allowed automatically on the application of the complainant or the prosecution and should only follow a consideration of the relevant facts.

In cases where compensation is requested or offered, the decision is entirely one for the court. Thus it must hear sufficient facts to decide whether it is a suitable case and, if so, the sum that would be appropriate. Equally, when a sum has already been paid, the court must still decide whether it is sufficient or proper and act accordingly.

It should not agree to reconciliation until it has clear evidence of the payment. The fact compensation has been paid and accepted by the complainant does not make that case suitable for reconciliation if it was otherwise unsuitable although it may, of course, still be a matter of mitigation.

In cases where compensation is ordered, payment should be made to the complainant in open court or there should be clear evidence of payment and receipt. No order of reconciliation should be made until this is done and this may frequently require a short adjournment. The fact of payment in court must be recorded in the court file and no receipt is then necessary.

In every case where reconciliation is allowed, the court must state whether the proceedings are terminated or stayed. Where it is satisfied the reconciliation has finally settled the matter, the case should be terminated but, if there is any concern that bad feeling may continue, it may be wise to consider ordering a stay only. In this case, a period must be set (usually a period of up to 12 months would be appropriate) and it must be explained to the defendant that he is liable to arrest and trial for the offence should he continue or repeat his misconduct within that period.

Whilst many cases of matrimonial violence are suitable for reconciliation, the court should be especially careful before it is satisfied the victim has really agreed. In the majority of such cases, the appropriate order would be to stay proceedings. The court may also consider in such cases whether to bind over one or both parties under section 32(2) of the Penal Code subject, of course, to the complainant's right to be heard first.

All the matters referred to in this direction must be noted in the record of proceedings.' (emphasis added) [words in brackets added]

The law relating to 'Binding Over Orders' is examined on page 946.

[59.17] Disqualification

[59.17.1] General Principles

In Howard Haomae v R (Unrep. Criminal Appeal Case No. 106 of 2001) Palmer J commented at page 1:

'[T]he presiding Magistrate did not pass any sentence on the Appellant. It appears the order for disqualification was used as the penalty. This is not the correct approach. […] The correct approach is first, to determine the appropriate penalty to be imposed, then go on next to consider whether an order for disqualification is mandatory under Part I or discretionary under Part II of the Schedule. If discretionary, he should then go on to consider the period of disqualification to be imposed taking into account the circumstances of the case, including the nature of the offence, the antecedents of the appellant or accused, and the possible effects on his job. For instance, if a person drives to earn his living, such as a bus driver or a taxi – driver, instead of ordering him to be disqualified for 12 months, the court might impose an order for disqualification for say 9 months, or instead of 6 months, 3 months.' (emphasis added)

See also: R v Brown & Taylor, Ex parte Metropolitan Police Commissioner (1962) 46 CrAppR 218.

In R v David Leliana (Unrep. Criminal Review Case No. 6 of 1998) Palmer J commented at page 1:

'Magistrates must get used to thinking about whether to impose an order for disqualification or not whenever any traffic offence is being dealt with.'

Unless an offence is specified in the Schedule to the Traffic Act (Ch. 131) there is no power to disqualify a defendant, see Howard Haomae v R (supra)

Section 29(1) of the Traffic Act (Ch. 131) specifies a minimum period of 'disqualification', see R v Timothy Sulega (Unrep. Criminal Review Case No. 133 of 1999; Palmer J; at page 2) & R v Matthew Iroga (Unrep. Criminal Review Case No. 8 of 1998; Palmer J; at page 1).

A period of disqualification commences from the moment it is pronounced, see Aloyscius Votu v R (Unrep. Criminal Appeal Case No. 19 of 2002; Kabui J).

The issue of 'previous convictions' is important when considering the question of 'disqualification'.

In R v Maeli Rinau (Unrep. Criminal Review Case No. 18 of 1996) Palmer J stated at page 3:

'Magistrates must record whether there are previous convictions or not. If none was available, at the hearing, then an adjournment should be made and the prosecutor required to produce them. The issue on previous convictions is important when passing sentence and also when considering the question of disqualification under section 28 of the Traffic Act.' (emphasis added)

However, by virtue of the application of section 31 of the Traffic Act (Ch. 131) any period of disqualification imposed of less than two years is in effect 'two years'. Such defendants can not apply to have such disqualification removed for at least two years. Therefore, when courts are considering the imposition of a disqualification period in respect of an offence for which such an order is 'discretionary', the application of section 31 of the Traffic Act (Ch. 131) should also be considered.

The law relating to:

· the 'Removal Of Disqualification' is examined commencing on page 959; and

· the 'Proof Of Previous Convictions' is examined commencing on page 305.

See also: R v Jack Lae (Unrep. Criminal Review Case No. 72 of 1992; Muria J); Peter Baru v R [1988 – 89] SILR 132; R v Ramofaua (Unrep. Criminal Review Case No. 5799 of 1999; Palmer J) & Charles Fosala v R [1988 – 89] SILR 139.

[59.17.2] Traffic Act

Section 29 of the Traffic Act (Ch. 131) states:

'(1) Where a person is convicted of an offence specified in Part I of the Schedule the court shall order him to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified. ['Obligatory Disqualification']

(2) Where a person is convicted of an offence specified in Part II of the said Schedule, the court may order him to be disqualified for such period as the court thinks fit. ['Discretionary Disqualification']

(3) Where a person convicted of an offence specified in the said Part I or the said Part II has within the three years immediately preceding the commission of the offence and since the commencement of this Act been convicted on not less than two occasions of an offence specified in those Parts and particulars of the conviction have been ordered to be endorsed in accordance with section 36, the court shall order him to be disqualified for such period not less than six months as the court thinks fit, unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.

(4) Where a person convicted of an offence under section 43(1) (driving or attempting to drive while under the influence of drink or drugs) has within the ten years immediately preceding the commission of the offence been convicted of such an offence, subsection (1) of this section shall apply in relation to him with the substitution of three years for twelve months.

(5) The period of any disqualification imposed under subsection (3) of this section or on a conviction of an offence under section 35(b) (driving while disqualified) shall be in addition to any other period of disqualification imposed (whether previously or on the same occasion) in Solomon Islands whether under this Act or otherwise.

(5) The foregoing provisions of this section shall apply in relation to a conviction of an offence committed by aiding, abetting, counselling or procuring, or inciting to the commission of an offence specified in the said Part I as if the offence were specified in the said Part II.

(6) Where a person is convicted of an offence specified in the said Part I or II the court may, whether or not he has previously passed a test of competence to drive under this Act or under any Act repealed by this Act, and whether or not the court makes an order under the foregoing provisions of this section, order him to be disqualified until he has, since the date of the order, passed that test; and a disqualification by virtue of an order under this subsection shall be deemed to have expired on production to a licensing officer of satisfactory evidence, that the person disqualified has, since the order was made, pass that test.

(8) In this section "disqualified" means disqualified for holding or obtaining a licence to drive a motor vehicle granted under this Part and "disqualification" shall be construed accordingly.

(9) The Minister may by order amend or replace the Schedule and in doing so may provide for the insertion or addition of offences relating to the driving, use or control of motor vehicles under any law or Act having effect in Solomon Islands.' (emphasis added) [words in brackets added]

[59.17.3] Obligatory Disqualification

In R v Matthew Iroga (Unrep. Criminal Review Case No. 8 of 1998) Palmer J stated at page 1:

'Section 28(1) [now section 29] requires the court to disqualify a person convicted under section 42(1) [now section 43(1) and the other offences specified in Part I of the Schedule] for a minimum period of twelve months unless there are special reasons which the court thinks fit not to do so. What this means is that unless there are special reasons given and accepted by the court, it is required to impose an order for disqualification of not less than twelve months. If the court finds there are special reasons, it must then go on to decide whether it should exercise its discretion to disqualify for the minimum period or for a lesser period.' (emphasis added) [words in brackets added]

The standard of proof on the defendant to prove that there are 'special reasons' for a disqualification period less than twelve months is on the 'balance of probabilities', see Pugsley v Hunter [1973] 2 AllER 10; [1973] RTR 284; [1973] 1 WLR 578; [1973] CrimLR 247.

In R v George Ale (Unrep. Criminal Case No. 525 of 1996) Palmer J stated at page 1:

'A clear definition of what is a "special reason" is, can be found in the text "Road Traffic Offences" by G. S. Wilkinson, Fourth Edition, 1963, chapter VI. At page 312, the learned Author states:

"A special reason is one special to the facts of the particular case, ie., special to the facts which constitute the offence. It is a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence and one which the court ought properly to take into consideration when imposing punishment."' (emphasis added)

In Whittall v Kirby [1946] 2 AllER 552 [[1947] KB 194] Lord Goddard defined the term 'special reason' at page 555 as follows:

'A "special reason" within the exception is one which is special to the facts of the particular case, that is, special to the facts which constitute the offence. It is, in other words, a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment.' (emphasis added)

A circumstance peculiar to the offender as distinguished from the offence is not a 'special reason' within the exception, see Andrew Dora v R (Unrep. Criminal Appeal Case No. 3 of 1976; Davis CJ; at page 3).

An short distance driven may in appropriate circumstances amount to a 'special reason', see James v Hall [1972] 2 AllER 59 & Coombes v Kehoe [1972] 2 AllER 55.

In R v Daeolo Wale (Unrep. Criminal Review Case No. 23 of 1997) Palmer J held at page 2:

'Employment and family needs are not directly connected with the commission of the offence of driving whilst under the influence of drink and hence do not amount to "special reasons"'.

Unless the relevant facts sought to submitted in order to substantiate the 'special reasons' are admitted by the prosecution, evidence must be given, see Brown v Dyerson (1968) 52 CrAppR 630; [1968] 3 WLR 615; [1969] 1 QB 45.

See also: R v Ben Ramofaua (Unrep. Criminal Review Case No. 5799 of 1999; Palmer J); R v Fred Noda (Unrep. Criminal Case No. 9 of 1996; Palmer J); Anna Langley v R (Unrep. Criminal Appeal Case No. 17 of 1978; Davis CJ); R v Enley Honimae (Unrep. Criminal Review Case No. 42 of 1996; Palmer J); David Billy Aete'e v R (Unrep. Criminal Appeal Case No. 3 of 1980; Daly CJ); R v Wilkins (1958) 42 CrAppR 236; Delaroy – Hall v Tadman, Earl & Lloyd & Watson v Last (1969) 53 CrAppR 143; Brewer v Metropolitan Police Commissioner (1969) 53 CrAppR 157; R v Scott (1968) 53 CrAppR 319; R v Jackson & Hart (1968) 53 CrAppR 341; R v Baines (1970) 54 CrAppR 481; R v Messom (1973) 57 CrAppR 481; Taylor v Rajan [1974] 2 WLR 385; [1974] 1 AllER 1087; [1974] QB 424; [1974] CrimLR 188; (1974) 59 CrAppR 11; Fraser v Barton (1974) 59 CrAppR 15 & Director of Public Prosecutions v Feeney (1989) 89 CrAppR 173; [1989] RTR 112.

[59.17.4] Discretionary Disqualification

Section 29(2) of the Traffic Act (Ch. 131) states:

'Where a person is convicted of an offence specified in Part II of the said Schedule, the court may order him to be disqualified for such period as the court thinks fit.' (emphasis added)

The prospects of employment is one factor which should be taken into account by a court in determining whether to impose a period of disqualification, see R v Weston (1982) 4 CrAppR(S) 5.

[59.17.5] Driving Test

The power to make an order that a defendant must pass a 'driving test' in order to have the disqualification of his/her drivers license removed after serving the period of disqualification ordered by the court should not be used punitively, see R v Donnelly (1975) 60 CrAppR 250.

It should be used where there is reason to question the offender's general competence to drive. It may also be appropriate where the offender is disqualified for a substantial period so that he/she may become familiar with changing traffic conditions by the time his/her disqualification has expired, see R v Guilfoyle (1973) 57 CrAppR 549.

See: R v Murphy (1989) 89 CrAppR 176; [1989] RTR 236.

[59.17.6] Schedule

SCHEDULE

(Section 29)

Part I

Offences Involving Obligatory Disqualification

1. An offence under section 35(b) (driving while disqualified).

2. Manslaughter by the driver of a motor vehicle.

3. An offence under section 38 (causing death by dangerous driving).

4. An offence under section 39 (dangerous driving, etc.) committed within three years after a previous conviction of an offence under that section or under section 38 thereof.

5. An offence under section 43(1) (driving, etc., under the influence of drink or drugs).

Part II

Offences Involving Discretionary Disqualification

6. An offence of driving without a license contrary to section 20, committed by driving a motor vehicle in a case where either no license authorising the driving of that vehicle could have been granted to the offender or, if a provisional (but no other) license to drive it could have been granted to him, the driving would not have complied with the conditions thereof.

7. An offence under section 23(3) (failure to comply with conditions of provisional license).

8. An offence under section 39 (dangerous driving, etc.) committed otherwise than as mentioned in paragraph 4 of this Schedule.

9. An offence under section 40 (careless driving, etc.)

10. An offence mentioned in section 41(1) (speeding).

11. An offence under section 42 (driving, or causing or permitting a person to drive, a motor vehicle in contravention of the provisions of the Act relating to the minimum age for driving motor vehicles).

12. An offence under section 43(2) (being in charge of a motor vehicle while under the influence of drink or drugs).

13. An offence under section 46 (using a vehicle which is in a defective condition or overloaded) committed by using a vehicle on a road or causing or permitting a vehicle to be so used either --

(a) so as to cause, or to be likely to cause danger by the condition of the vehicle or its parts or accessories, the number of passengers carried by it or the weight, distribution, packing or adjustment of its load; or

(b) in breach of a requirement as to brakes, steering gear or tyres.

14. An offence under section 47 (racing, etc.).

15. An offence under section 48(2) (carrying passengers on motor cycle in contravention of the section).

16. An offence under section 53 (failure to comply with traffic directions) committed in respect of a motor vehicle by a failure to comply with a direction of a police officer or an indication given by a traffic sign.

17. An offence under section 55 (leaving vehicle in dangerous position) committed in respect of a motor vehicle.

18. An offence under section 59 (taking, etc., motor vehicle without authority).

19. An offence under section 63 (failure to stop, etc., after accident).

20. An offence under section 8 of the Motor Vehicles (Third – Party Insurance) Act (use of motor vehicle not insured against third – party risks).

21. An offence under section 66 of the Liquor Act (consuming liquor in a vehicle).

[59.17.7] Application To Remove Disqualification

Section 31 of the Traffic Act (Ch. 131) states:

'(1) Subject to the provisions of the section, a person who by an order of a court is disqualified for holding or obtaining a license may apply to the court by which the order was made to remove the disqualification, and on any such application the court may, as it thinks proper, having regard to the character of the person disqualified and his conduct subsequent to the order, the nature of the offence, and any other circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application.

(2) No application shall be made under the foregoing subsection for the removal of a disqualification before the expiration of whichever is relevant of the following periods from the date of the order by which the disqualification was imposed, that is to say --

(a) two years, if the disqualification is for less than four years;

(b) one half of the period of the disqualification, if it is for less than ten years but not less than four years;

and in determining the expiration of the period after which under this subsection a person may apply for the removal of a disqualification, any time after the conviction during which the disqualification was suspended or he was disqualified shall be disregarded.

(3) Where an application under subsection (1) is refused, a further application thereunder shall not be entertained if made within three months after the date of the refusal.

(4) If under this section a court orders a disqualification to be removed, the court shall cause particulars of the order to be endorsed on the license, if any, previously held by the applicant and the court shall in any case have power to order the applicant to pay the whole or any part of the costs of the application.

(5) The foregoing provisions of this section shall not apply where the disqualification was imposed under section 29(3).'

In R v Timothy Sulega (Unrep. Criminal Review Case No. 133 of 1999) Palmer J stated at page 3:

'Subsection 31(1) of the Traffic Act does provide for an application to be made to the court for removal of the disqualification imposed. However, and this is the crucial part, subsection (2) imposes limits under which an application can be made. A disqualified driver therefore does not have right to apply at any time, and the court does not have right to entertain any such application unless it falls within those limits set by law. What are those limits?

The limit set under paragraph 31(2)(a) and which is the relevant part here is that, a person can only be qualified to apply under section 31(1) if at least two years of his disqualification period had expired, and provided his order for disqualification was less than four years. So if a person has been disqualified for say three years, the minimum period of two years must have expired before he can apply under section 31. But what if his disqualification period is 18 months? The same rule applies. He must have had two years before he can apply. It follows a person disqualified for anything less than two years cannot apply for removal of his disqualification (see Wilkinson's Road Traffic offences Eight Edition page 646). There is no discretion involved. If the accused disagrees his only recourse is by way of appeal to this Court.'

[59.18] Co - defendants

In Adifaka v Director of Public Prosecutions [1984] SILR 44 White ACJ stated at page 50:

'[N]ot all disparities in sentence result in reductions and that it was necessary to show that the disparity was such as to justify "a real and genuine grievance." The principles are stated by the Court of Appeal in Magu v R [1980/81] SILR 40, 42.

[…]

Bearing in mind the salutary provisions of S. 21 of the Penal Code, making all persons who take part in offences as there stated guilty of the offence committed, it is necessary to examine "the relevant considerations affecting the individual appellant", the general rule being that where two or more offenders are concerned in the same offence a proper relationship should be established between the sentences passed on each offender […].' (emphasis added)

In Magu v R [1980 – 81] SILR 40 Spreight JA, on behalf of the Court of Appeal, held at page 42:

'The principles relating to disparity are well known. Where one prisoner has received a sentence which is disproportionately low, that is no ground for reducing a proper sentence on another. But where it is shown that the sentence under review is very heavy and out of proportion to the majority of punishments for comparable offences it is the duty of the Court to ensure that there is a degree of consistency. In comparable cases the level of punishment to be meted out should not ebb or flow in a marked way otherwise there will be room for prisoners who have been heavily and disproportionately sentenced to have a legitimate grievance and this encourages resentment and lack of confidence in the judicial system among the public at large.' (emphasis added)

For the disparity to be 'objectionable' it must be shown that one of the two or more defendants received a more severe sentence than the other and that the difference is not justified by any relevant distinction in their culpability or personal circumstances, see R v Alulu & others (Unrep. Criminal Review Case No. 147 of 1991; Muria ACJ).

In R v Coffey (1982) 74 CrAppR 168 Lawton LJ, delivering the judgment of the Court, stated at pages 170 – 171:

'There was an unreasonable disparity between the two men. The problem arises whether it is the kind of disparity which should be considered by this Court. There are two ways of looking at disparity. One is to ask the question: "What would right – thinking members of the public think about this particular case? Would they take the view that something had gone wring with the administration of justice?" The other is to ask the question: "Will this man have to service his sentence suffering from a justifiable sense of grievance?"

See also: R v Robert Mani (Unrep. Criminal Case No. 29 of 1997; Palmer J; at page 3) & R v Coe (1969) 53 CrAppR 66; [1969] 1 AllER 65; [1968] 1 WLR 1950.

Therefore, if 'mitigating factors' which only apply to one defendant result in a reduced sentence, the co - defendant/s should not be given that same benefit, see Attorney General's References Nos. 62, 63 & 64 of 1995; R v O'Halloran & others [1996] 2 CrAppR(S) 233 & Attorney General's Reference No. 73 of 1999; R v Charles [2000] 2 CrAppR(S) 210.

In considering whether there is 'objectionable' disparity the question to be asked is "Would right – thinking members of the public, with full knowledge of the relevant facts and circumstances, learning of the sentence consider that something had gone wrong with the administration of justice?", see R v Fawcett (1983) 5 CrAppR(S) 158.

It is immaterial that proceedings have not been instituted against all defendants.

In Jack Igi & others v R (Unrep. Criminal Appeal Case No. 47 of 1996) Palmer J held at pages 3 – 4:

The fact that there may have been hundreds others who have never been arrested and charged does not alter the fact that that these Appellants had taken part in a grave criminal offence. Lord Justice Sachs in R v Caird [(1970) 54 CrAppR 499] describes this ground as the "Why pick on me?" argument. He states:

"It has been suggested that there is something wrong in giving an appropriate sentence to one convicted of an offence because there are considerable numbers of others who were at the same time committing the same offence, some of whom indeed, if identified and arrested and established as having taken a more serious part, could have received heavier sentences. This is a plea which is almost invariably put forward where the offence is one of those classed as disturbances of the public peace – such as riots, unlawful assemblies and affrays. It indicates a failure to appreciate that on these confused and tumultuous occasions each individual who takes an active part by deed or encouragement is guilty of a really grave offence by being one of the number engaged in a crime against the peace. It is, moreover, impracticable for a small number of police sought to be overwhelmed by a crowd to make a large number of arrests. It is indeed all the more difficult when, as in the present case, any attempt at arrest is followed by violent efforts of surrounding rioters to rescue the person being arrested.

… If this plea were acceded to, it would reinforce that feeling which may undoubtedly exist that if an offender is but one of a number he is unlikely to be picked on, and even if he is so picked upon, can escape proper punishment because others were not arrested at the same time. Those who choose to take part in such unlawful occasions must do so at their own peril."'

As regards 'Wilful Damage by Rioters', see Solomon Keto & 6 others v R (Unrep. Criminal Appeal Case No. 9 of 1982; Daly CJ).

See also: R v Robert Mani (Unrep. Criminal Appeal Case No. 29 of 1997; Palmer J; at page 3); R v Tremarco (1979) 1 CrAppR(S) 286 & R v Strutt (1993) 14 CrAppR(S) 56.

[59.19] Conspiracy

In Verrier v Director of Public Prosecutions (1966) 50 CrAppR 315 [[1966] 3 WLR 924; [1967] AC 195; [1966] 3 AllER 586] Lord Pearson stated at page 326:

'Normally it is not right to pass a higher sentence for conspiracy than could be passed for the substantive offence: it can be justified only in very exceptional cases.'

See also: R v Smith (1988) 87 CrAppR 393.

[59.20] Attempts To Commit Offences

Section 379 of the Penal Code (Ch. 26) states:

'Any person who attempts to commit a felony or misdemeanour is guilty of an offence, which, unless otherwise stated, is a misdemeanour.'

Section 380 of the Penal Code (Ch. 26) states:

'Any person who attempts to commit a felony of such a kind that a person convicted of it is liable to the punishment of imprisonment for a term of fourteen years or upwards, with or without other punishment, is guilty of a felony, and shall be liable, if no other punishment is provided, to imprisonment for seven years.'

In Koraua & Kaitira v R [1988 – 89] SILR 4 the Court of Appeal commented at pages 5 – 6:

'Generally speaking, an attempt is to be punished with a lesser sentence than that for the completed offence, but there may be some circumstances in which an attempt will be more severely punished than a complete offence.'

[59.21] Juveniles

There is no power to impose any other punishment under section 16 of the Juvenile Offenders Act (Ch. 14), other than that is what prescribed, see Wallace Campbell v R [1988 – 89] SILR 137 at page 138.

Section 16 states:

'Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt the court shall take into consideration the manner in which, under the provisions of this or any other Act or law enabling the court to deal with the case, the case should be dealt with, and, subject to such provisions, may deal with the case in any of the following manners or combination thereof, namely –

(a) by dismissing the case; or

(b) by discharging the offender on his entering into a recognizance, with or without sureties; or

(d) by committing the offender to the care of a relative or other fit person; or

(e) by ordering the offender to pay a fine, damages or costs; or

(f) by ordering the parent or guardian of the offender to pay a fine, damages or costs; or

(g) by ordering the parent or guardian of the offender to give security for his good behaviour; or

(h) by directing that he be released on his entering into a bond to appear and receive sentence when called upon; or

(i) by committing the offender to custody in a place of detention; or

(j) where the offender is a young person, by sentencing him to imprisonment; or

(k) by dealing with the case in any other manner in which it may be legally dealt with:

Provided that nothing in this section shall be construed as authorising the court to deal with any case in any manner in which it could not deal with the case apart from this section.'

Section 12 of the Juvenile Offenders Act (Ch. 14) states:

'(1) No child shall be sentenced to imprisonment or be committed to prison in default of payment of a fine, damages or costs.

(2) No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way specified in section 16.

(3) A young person sentenced to imprisonment shall not, so far as is practicable, be allowed to associate with prisoners not being children or young persons.'

See: R v Paul Rakaimua (Unrep. Criminal Case No. 24 of 1995; Muria CJ; at pages 3 - 4) & B & another v R [1982] SILR 38.

The term 'Child' 'means a person who is, in the opinion of the court having cognisance of any case in relation to such person, under the age of fourteen years', see section 2 of that Act. (emphasis added)

The term 'Young Person' 'means a person who is, in the opinion of the court having cognisance of any case in relation to such person, fourteen years of age or upwards and under the age of eighteen years', see section 2 of that Act. (emphasis added)

See also: section 29 of the Magistrates' Courts Act (Ch. 20) ['Committal of persons under the age of 16 to care of fit person'] and sections 36 ['Committal of offenders under the age of 16 to care of fit persons; binding over parent or guardian to exercise proper care'], 37 ['Interpretation of "care, protection or control" and "fit person"'] & 38 ['Payment of fine or compensation by parent or guardian of offender under 16 years of age'] of the Penal Code (Ch. 26).

'In all cases where a juvenile appears before the court without his parent or guardian present, the court should ask the police whether they have complied with section 10(2). If they have not but the parents or guardians could be found the reasons for their failure should be noted in the record, the case adjourned and a summons issued for their attendance. At the adjourned hearing, if the parents still fail to appear, the court must hear evidence that they were served and, if so, can proceed in their absence. A warrant should then be issued for their failure to attend and this will provide an opportunity to examine them if they are to pay a fine', see R v Sasae (Unrep. Criminal Review Case No. 87 of 1979).

Section 10(2) of the Juvenile Offenders Act (Ch. 14) states:

'Where a child or young person is arrested, the police officer by whom he is arrested or the officer in charge of the police station to which he is brought shall, if the parent or guardian lives within a reasonable distance and can be found, cause him to be warned to attend at the court before which the child or young person will be brought.'

Juveniles who are from respected families should be sentenced to perform community service like any other juveniles. The fact that it may be demeaning to such families is immaterial, see Wallace Campbell v R (supra).

As regards the unavailability of a 'detention centre', see B & another v R (supra) & Belama v Director of Public Prosecutions [1984] SILR 37.

As regards 'comparative sentencing', refer to:

· Wallace Campbell v R (supra) [Simple Larceny];

· R v Paul Rakaimua (supra) [Manslaughter];

· B & another v R (supra) [Break & Enter];

· Belama v Director of Public Prosecutions (supra) [Larceny in Dwelling House];

· R v Kelly Dennie, Kenazo Maeka & Teddy Weba (Waiba) (Unrep. Criminal Appeal Case No. 12 of 1998; Kabui J) [Burglary];

· Wilikai v R [1980 – 81] SILR 81 [Driving Whilst Disqualified];

· John Lui v R (Unrep. Criminal Appeal Case No. 7 of 1979; Davis CJ) [Unlawful Wounding];

· R v Stephen Ariki (Unrep. Criminal Case No. 23 of 1990; Ward CJ) [Rape];

· R v Sanga (Unrep. Criminal Case No. 67 of 1985; Wood CJ) [Manslaughter].

[59.22] Aggravating Factors

[59.22.1] Introduction

Courts must consider 'mitigating factors' of equal importance to 'aggravating factors', see R v Peter Taku (Unrep. Criminal Case No. 3 of 1995; Palmer J; at page 3).

Whilst the Court should advise the defendant that the 'mitigating factors' will result in a reduced sentence [see R v Aroride [1999] 2 CrAppR(S) 406 & R v Fearon [1996] 2 CrAppR(S) 25], it should also advise the defendant that the 'aggravating factors' will result in a more severe sentence than would otherwise be imposed.

'Aggravating factors' include:

[i] the seriousness of the offence generally;

[ii] the modus operandi in committing the offence;

[iii] the use of weapons;

[iv] the defendant's level of culpability;

[v] a breach of trust;

[vi] previous convictions;

[vii] repeated commission of offences;

[viii] period of which offences are committed;

[ix] whether the offence was committed in the night – time; and

[x] consumption of alcohol.

[59.22.2] Seriousness Of The Offence Generally

Whilst prima facie the 'seriousness of offences' is reflected by what the law imposes as the maximum punishment, see for example, Susan Tamara v R (Unrep. Criminal Case No. 15 of 1995; Muria CJ) & Hola, Tome & Lai v R (Unrep. Criminal Case No. 15 of 1992; Muria ACJ), the other applicable 'aggravating factors' and any 'mitigating factors' will assist the court in determining the degree of seriousness for the offence in question.

The law relating to 'Mitigating Factors' is examined commencing on page 970.

In that case a 'mandatory' fixed penalty may be prescribed, see Gerea & others v Director of Public Prosecutions [1984] SILR 161.

In Paroke & Kuper v R (Unrep. Criminal Case No. 21 of 1992) Muria ACJ stated at page 2:

'In cases of serious crimes, and housebreaking is such a crime, the courts must reflect the seriousness of crimes in the sentences they pass even upon a young first offender.'

The 'value of property' involved in the commission of offences reflects the 'seriousness' of such offences, see R v Rex Topilu (Unrep. Criminal Case No. 35 of 1995; Palmer J).

The 'extent and nature of injuries suffered by complainants as a consequence of the commission of such offences reflects the 'seriousness' of such offences, see R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996; Palmer J) & Dickson Kwaifanabo & Sale Kwatebeo v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 16 of 1984; Ward CJ).

[59.22.3] Modus Operandi

The 'modus operandi' in committing an offence may be an 'aggravating factor' in appropriate circumstances.

In R v John Tau & 16 others (Unrep. Criminal Case No. 58 of 1993) Palmer J stated:

'[T]he manner in which the offences were committed involved forethought, planning and trickery. The Accused were prepared to use their skills, knowledge and understanding, pooled together to commit those offences. They were prepared to bid their time, even waiting for up to two or three weeks to carry out their criminal actions. The time element therefore is material, and the usual argument of a spur of the moment act would not assist most of the Accuseds here.

[T]he offences were committed by a group of people, pooling their resources, skills and knowledge together. Whereas if it had been an individual or a smaller group involved, then the others may not have had the courage to commit those offences. In a group however, each obtained support and comfort and committed those offences.' (emphasis added)

In Dence Jim, Reggie Gordon & Talet Timothy v R (Unrep. Criminal Case No. 18 of 1988) Ward CJ stated at page 2:

'I say immediately that the learned magistrate was right to take the view that any attack by more than one on a single victim merits immediate imprisonment.'

See also: Joel Likilua & Allen Kokolobu v R [1988 – 89] SILR 148; Koraua & Kaitira v R [1988 – 89] SILR 4; Stanley Bade v R [1988 – 89] SILR 121 at page 125; R v Kaimanisi [1985 – 86] SILR 260; R v Rex Topilu (Unrep. Criminal Case No. 35 of 1995; Palmer J); David Ironimo v R (Unrep. Criminal Appeal Case No. 6 of 1996; Muria CJ); R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996; Palmer J) & Dickson Kwaifanabo & Sale Kwatebo v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 16 of 1984; Ward CJ).

[59.22.4] Use Of Weapons

In Kingi Pepe v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 4 of 1987) Ward CJ commented at pages 2 – 3:

'The courts have repeated with almost monotonous regularity that people who carry knives are likely, under provocation, to use them. The only way to avoid that risk is to cease to carry a knife. Anyone who carries one for no good reason must be assumed to realise and accept that risk. Equally commonplace are the courts' warnings on the dangers of excessive drinking especially when the drunken man has a weapon. Anyone who fails to heed these warnings must face the consequences.'

Courts is Solomon Islands always consider imprisonment when a weapon is used, see Saukoroa v R [1983] SILR 275 at page 277 (Court of Appeal) & Michael Buruka v R (Unrep. Criminal Appeal Case No. 31 of 1991; Muria J; at page 4).

In Allan Campbell v R (Unrep. Criminal Appeal Case No. 9 of 1994) Williams JA, sitting as the Court of Appeal, commented at page 3:

'Whilst intoxication is not a mitigating factor, in cases where the act was the direct result of the intoxication is not accompanied by element of deliberation which makes the use of a weapon more serious.'

In Dence Jim, Reggie Gordon & Talet Timothy v R (Unrep. Criminal Case No. 18 of 1988) Ward CJ stated at page 2:

'I say immediately that the learned magistrate was right to take the view that any attack by more than one on a single victim merits immediate imprisonment. Similarly an attack with a weapon on an unarmed man whether singly or in concert demands a sentence of imprisonment.'

See also: R v Ben Tungale, Brown Beu, Nelson Oma, James Sala, Louis Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997; Lungole – Awich J); R v Kaimanisi [1985 – 86] SILR 260; Maona v R (Unrep. Criminal Appeal Case No. 8 of 1982; Daly CJ; at page 2) & R v Durbarree (1968) 52 CrAppR 238.

[59.22.5] Level Of Culpability

'Leadership' in a group responsible for the commission of offences may be considered as an 'aggravating factor', see Jimmy Robin Kelly & others v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 1 of 1991; Court of Appeal; at page 5); Jack Igi & others v R (Unrep. Criminal Appeal Case No. 47 of 1996; Palmer J); Joel Likilua & Allen Kokolobu v R (Unrep. Criminal Case No. 18 of 1989; Ward CJ); R v Kelly Dennie, Kenazo Maeko & Teddy Weba (Waiba) (Unrep. Criminal Appeal Case No. 12 of 1998; Kabui J; at page 6) & R v Belton & Petrow [1997] 1 CrAppR(S) 215.

[59.22.6] Breach Of Trust

In Edward Fiuadi v R [1988 – 89] SILR 150 Ward CJ commented at page 152:

'Any offence of dishonesty is serious but, when it is committed by a person in a position of trust in breach of the trust placed in him, it is more serious.

[…]

It must be clearly understood that, in any offence where a breach of trust is involved, a sentence of imprisonment will always be appropriate.' (emphasis added)

See also: William Tebounapa v R (Unrep. Criminal Appeal Case No. 2 of 1999; Court of Appeal) [Rape – customary healer]; R v Rex Topilu (Unrep. Criminal Case No. 35 of 1995; Palmer J; at page 1); R v Peter Taku (Unrep. Criminal Case No. 3 of 1995; Palmer J) [Rape]; R v Christopher Saungao (Unrep. Criminal Case No. 30 of 1995; Lungole – Awich J) [employee in the public service]; R v Naphtali Mule (Unrep. Criminal Case No. 34 of 1991; Muria J) [Defilement of a girl under 13 years of age]; Patterson Runikera v Director of Public Prosecutions (Unrep. Criminal Case No. 14 of 1987; Ward CJ) [Forgery & related offences]; R v Litani (Unrep. Criminal Case No. 45 of 1987; Ward CJ) [employee in the public service]; Rojumana v R [1990] SILR 132; R v Farobo (Unrep. Criminal Case No. 19 of 1986; Ward CJ); Director of Public Prosecutions v Jones (Unrep. Criminal Appeal Case No. 37 of 1990; Ward CJ) & R v Ofai & five others (Unrep. Criminal Case No. 11 of 1990; Ward CJ).

[59.22.7] Previous Convictions

In R v Henry Su'Umania (Unrep. Criminal Case No. 2 of 1987) Ward CJ stated at page 2:

'When sentencing persistent offenders the court must make protection of the public the principal consideration in determining the length of sentence.

It is well settled, however, that even in such cases the sentence must be still be appropriate to the offence and the court must be careful not to sentence the accused for his previous convictions as was explained by Spreight JA in Koboa v R (1980/81) SILR 43 at 46. Thus, whilst previous good character may reduce a sentence, previous bad character cannot increase it beyond the proper term but the court can and should consider previous convictions in assessing the character of the man before it and the likelihood of his changing his ways.' (emphasis added)

In Kaboa v R (supra) the Court of Appeal held per Spreight JA at page 46:

'Some mention need also be made of the reliance placed on the appellant's previous conviction. The proper scope for such consideration was discussed by this Court in Peter Rimae v Reginam, Criminal Appeal No. 62 of 1974, Judgment of the Court delivered by Gould P. on 17th March 1975. Reference was made to Betteridge 1943 28 CrAppR 171 and to Casey 1931 NZGLR 289 – the Court should be careful to see that a sentence of a prisoner previously convicted is not increased beyond what would be appropriate to the facts merely because of previous convictions. Previous convictions are relevant to establish a prisoner's character.' (emphasis added)

A Court may disregard 'previous convictions' due to the length of time since such convictions, see R v John Foreman Sukina (Unrep. Criminal Case No. 31 of 1995; Lungole – Awich J; at page 2).

A Court may consider the court records of previous cases involving a defendant when deciding the appropriate sentence to impose, see R v Peter Taku (Unrep. Criminal Case No. 3 of 1995; Palmer J; at page 1).

'Magistrates must record whether there are previous convictions or not. If none was available, at the hearing, then an adjournment should be made and the prosecutor required to produce them. The issue of previous convictions is important when passing sentence and also when considering the question of disqualification under section 28 of the Traffic Act', see R v Maeli Rinau (Unrep. Criminal Review Case No. 18 of 1996; Palmer J; at page 3). (emphasis added)

As to the need to prove previous convictions, see R v Finney (1924) 18 CrAppR 41.

The law relating to 'Proving Previous Convictions' is examined on page 305.

Previous convictions in another country may be considered, see R v Ford (1921) 15 CrAppR 176.

See also: Ngina v R [1987] SILR 35 at page 40; Luke Misitana v R (Unrep. Criminal Appeal Case No. 7 of 1996; Muria ACJ; at page 5) & R v Brown (1915) 11 CrAppR 90 at page 91.

[59.22.8] Repeated Commission Of Offences

The 'repeated commission of offences' may be considered as an 'aggravating factor', in appropriate circumstances, see R v Rex Topilu (Unrep. Criminal Case No. 35 of 1995); R v Joseph Atkin (Unrep. Criminal Case No. 18 of 1994; Palmer J) & R v Ofai & five others (Unrep. Criminal Case No. 11 of 1990; Ward CJ).

[59.22.9] Period Over Which Offences Are Committed

The 'period over which offences are committed' may be considered as an 'aggravating factor', in appropriate circumstances, see R v Rex Topilu (Unrep. Criminal Case No. 35 of 1995); R v Joseph Atkin (Unrep. Criminal Case No. 18 of 1994; Palmer J) & R v Farobo (Unrep. Criminal Case No. 19 of 1986; Ward CJ).

[59.22.10] Night - time

The commission of an offence at 'night' can be considered as an 'aggravating factor', see David Ironimo v R (Unrep. Criminal Appeal Case No. 6 of 1996; Muria CJ; at page 2) & R v Henry Su'Umania (Unrep. Criminal Case No. 2 of 1987; Ward CJ; at page 2).

[59.22.11] Consumption Of Alcohol

The consumption of alcohol is not a mitigating factor, see Allan Campbell v R (Unrep. Criminal Appeal Case No. 9 of 1994; Court of Appeal; at page 3) & R v Patua, Kukiti, Ngelea & Manegaua (Unrep. Criminal Case No. 6 of 1989; Ward CJ).

[59.23] Mitigating Factors

[59.23.1] Introduction

In Morris Bock v R (Unrep. Criminal Case No. 17 of 1993) Palmer J stated at page 3:

'When passing sentence, the mitigating factors need to be assessed properly.' (emphasis added)

The Court should advise the defendant that the 'mitigating factors' will result in a reduced sentence, see R v Aroride [1999] 2 CrAppR(S) 406 & R v Fearon [1996] 2 CrAppR(S) 25.

A Court should take into consideration 'mitigating factors' even though the maximum sentence for the offence in question may be considered too low, see R v Carroll (1995) 16 CrAppR(S) 488.

In R v Jack Faununu (Unrep. Criminal Case No. 10 of 1997) Lungole – Awich J commented at pages 8 – 9:

'I need not say much about calling accused to testify in mitigation. In fact any witness may be called, but it is not for the court to insist, it is up to accused to testify or call witness if he insists on asking the court to consider in mitigation facts disputed by the prosecution. […]

[…]

[…] I must add, however, that the court does not compel accused to testify, but if accused insists on the court taking into account facts not agreed to by the prosecution, the accused has to testify or the court will not take the facts into consideration. He is free to abandon the facts.

[…] It is advisable that counsel for accused consults in advance with the prosecution about facts in mitigation that counsel intends presenting from the bar, especially those that are potentially contentious. If he meets with no opposition, he may well state them from the bar, upon advising court that the prosecution does not intend challenging the facts. If counsel meets with opposition, but accused insists on using the particular fact in mitigation, counsel may call accused to testify or advise accused to abandon the fact.'

'Mitigating factors' need to be taken into account before making the decision whether to impose a custodial sentence, see R v Francis Hori (Unrep. Criminal Review Case No. 118 of 1993; Palmer J) & R v Robert Mani (Unrep. Criminal Appeal Case No. 29 of 1997; Palmer J; at page 3).

'Mitigating factors' may include:

[i] the entering of a plea of guilty;

[ii] good character generally;

[iii] no / limited previous convictions;

[iv] co – operation with police;

[v] family circumstances;

[vi] youthfulness;

[vii] genuine remorse;

[viii] delay;

[ix] good work record;

[x] payment of compensation;

[xi] acting as an informer;

[xii] level of culpability;

[xiii] health of defendant;

[xiv] period in custody prior to sentencing;

[xv] motive; and

[xvi] risk of repetition.

[59.23.2] Plea Of Guilty

The fact that a defendant may plead 'not guilty' can not be taken into account when he/she is sentenced, see R v John Bare Maetia (Unrep. Criminal Case 32 of 1992; Muria CJ; at page 1).

In R v Jang Rang & Lim Kuen Chik, Lim Loi Fatt, Lim Kuen Pao, Lim Kuen Seng, Hung Nang Shiong, Cheng Swee Ming (Unrep. Criminal Case Nos. 11 & 12 of 1995) Palmer J stated at page 2:

'I give credit for all guilty pleas. I accept that this has saved considerable court time but also expense on all side[s].'

In Kingi Pepe v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 4 of 1987) Ward CJ commented at page 2:

'It is well established that, by a plea of guilty, an accused man saves a trial and demonstrates as plainly as anything could, his remorse and regret for what he has done. He is entitled to expect a lesser sentence than would otherwise be merited by the facts but there is no precise figure of reduction that can or should be considered to bind the court. In the usual case where a reduction is made, the amount is entirely in the court's discretion and a court must be free to feel that, in exceptional cases despite a plea of guilty, no reduction should be given.' (emphasis added)

A plea of 'guilty' 'demonstrates very clearly in my view a person who is not only remorseful, and is sorry for all his actions, but is courageous enough to fact up to his own actions and the consequences that normally flow from it', as commented by Palmer J in R v John Mark Tau & 16 others (Unrep. Criminal Case No. 58 of 1993).

'A guilty plea […] is a powerful mitigating factor and should tell in favour of the accused', as commented by Muria CJ in Misitana v R (Unrep. Criminal Appeal Case No. 7 of 1996).

The entering of a plea of guilty obviously results in there being no need to call witnesses, if there is no dispute as to the essential facts of the particular case. That is of particular importance in cases involving offences which were particularly stressful to complainants and / or witnesses.

In R v Ligiau & Dori [1985 – 86] SILR 214 Ward CJ commented at page 216:

'In such cases as this, a plea of guilty will reduce the sentence considerably. It has long been accepted that, by so doing, the accused not only shows remorse and contrition but saves the victim having to go in the witness box and relive such a frightening experience. With such young victims, that is especially important. I also accept you have maintained those admissions despite the realisation that, after a period of more than a year, such children may well have found difficulty in giving an accurate account of such an incident. As a result I make particular allowance of your plea of guilty.' (emphasis added)

See also: Saukoroa v R [1983] SILR 275 at page 278; Berekame v Director of Public Prosecutions [1985 – 86] SILR 272 & R v Don Rector Nonga (Unrep. Criminal Appeal Case No. 32 of 1996; Muria CJ).

The law relating to a 'Dispute As To The Facts In The Sentencing Process' is examined commencing on page 927.

[59.23.3] Good Character Generally

The age of a defendant is an important consideration in determining for what period of time a defendant has been of 'good character', see R v Naphtali Mule (Unrep. Criminal Case No. 34 of 1991; Muria J; at page 2); R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996; Palmer J; at page 18) & Berekame v Director of Public Prosecutions [1985 – 86] SILR 272.

[59.23.4] No Or Limited Previous Convictions

Credit must be given to first offenders, see R v John Mark Tau & 16 others (Unrep. Criminal Case No. 58 of 1993; Palmer J).

'Courts should be hesitant to send first offenders to prison, but that does not mean that if aggravating facts are bad a first offender should still not be sent to prison', as commented by Lungole – Awich J in R v Christopher Saungao (Unrep. Criminal Case No. 30 of 1995; at page 10).

Refer also to the law relating to 'Imprisonment' which is examined commencing on page 934.

See also: Saukoroa v R [1983] SILR 275 at page 278 (Court of Appeal) & Allan Campbell v R (Unrep. Criminal Appeal Case No. 9 of 1994; Court of Appeal).

A Court may disregard previous convictions due to the length of time since such convictions, see R v John Foreman Sukina (Unrep. Criminal Case No. 31 of 1995; Lungole – Awich J; at page 2).

The law relating to 'Proving Previous Convictions' is examined on page 305.

[59.23.5] Co – operation With Police

The fact that a defendant co – operates with the police in the investigation of an offence is a 'mitigating factor' because that co-operation will have invariably saved a great deal of time and resources for the RSIP, see for example Adifaka v Director of Public Prosecutions [1984] SILR 44 at page 50; David Ironimo v R (Unrep. Criminal Appeal Case No. 6 of 1996; Muria CJ) & R v Rex Topilu (Unrep. Criminal Case No. 35 of 1995; Palmer J; at page 3).

Refer also to the subsection which examines 'Informers' commencing on pages 130 & 977.

[59.23.6] Family Circumstances

In R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996) Palmer J stated at page 18:

'I do take note of the submissions by Mr. Kwaiga that hardships are bound to be experienced by other members of their families, their spouses for those married, and for their parents. While the court empathises with these natural human emotive feelings and considerations, there is little that this court can do. Those are matters which the accused should have taken into consideration, thought about, before embarking on their unlawful activities.'

In Gegeo v R (Unrep. Criminal Case No. 2 of 1991) Ward CJ held at page 1:

'I have pointed out many times that the responsibilities for his family and the effect a sentence will have on them is a matter for the man who decides to offend and not the courts. It is only in the most exceptional case that the court can consider such matters.' (emphasis added)

See also: Saukoroa v R [1983] SILR 275 at page 278 (Court of Appeal).

[59.23.7] Youthfulness

In Bati v Director of Public Prosecutions [1985 – 86] SILR 268 the Court of Appeal held that the following principle be applied when considering the age of an offender as a 'mitigating factor' at page 270:

'"Youth is one of the most effective mitigating factors. As has been shown the Court strongly favours the use of individualised measures for offenders under 21 […]. Where an offender of this group is sentenced to imprisonment, the sentence will normally be considerably shorter than would be awarded to a man of mature years for the same offence.

[…]

Recognition of the mitigating effect of youth does not mean that long sentences are necessarily wrong when imposed on offenders below the age of 21" ['Principles of Sentencing'; DA Thomas; 2nd ed.].'

In Paroke & Kuper v R (Unrep. Criminal Case No. 21 of 1992) Muria ACJ held at pages 2 – 3:

'On the question of sentence, Mr Radclyffe submitted that the appellants are young first offenders and as such imprisonment sentence is inappropriate. I do not accept the suggestion that because an offender is young and a first offender, he should not be sent to prison. In cases of serious crimes, and housebreaking is such a crime, the courts must reflect the seriousness of crimes in the sentences they pass even upon a young first offender. I said in R v Maritino Suilamo, Tome Akwasu'u and Molousafi Criminal Case No. 3 of 1992 (Judgment given on 5 May 1992) that the plea of youth is no longer satisfactory answer to serious crimes.' (emphasis added)

However, a long prison sentence for a young person may result in such a person becoming so institutionalised that he/she may not fit into society again when released, see R v Willie Abusae (Unrep. Criminal Case No. 28 of 1995; Palmer J).

See also: Allan Campbell v R (Unrep. Criminal Appeal Case No. 9 of 1994; Court of Appeal; at page 3); Jimmy Robin Kelly & others v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 1 of 1991; Court of Appeal; at page 5); Hola, Tome & Lai v R (Unrep. Criminal Case No. 15 of 1992; Muria ACJ; at page 2) & Annette Qila v R (Unrep. Criminal Case No. 19 of 1995; Palmer J).

[59.23.8] Genuine Remorse

Genuine remorse shown by a defendant is a 'mitigating factor', see Saukoroa v R [1983] SILR 275 at page 278 (Court of Appeal) & Allan Campbell v R (Unrep. Criminal Appeal Case No. 9 of 1994; Court of Appeal; at page 3). It would be expected that in such circumstances the defendant would also be pleading guilty to the charge/s.

[59.23.9] Delay

In R v Fred Gwali & John Morrison (Unrep. Criminal Case Nos. 21 of 1997 & 1 of 1998) Kabui J stated at page 3:

'[A] long delay in prosecuting criminal cases may have the effect of reducing a custodial sentence imposed by the Court.'

In Patterson Runikera v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 14 of 1987) Ward CJ commented at page 2:

'Delay generally affects the sentence in three way. It increases the anxiety of the accused man who has it "hanging over him" for that time. This will obviously only apply from the time of discovery of the offence – any delay before that is entirely in the hands of the offender. The second factor relates to the plea because any person must realise that, the greater the delay, the more chance the prosecution will be unable to prove their case. Thus, a plea of guilty entered with that knowledge becomes a strong mitigating factor. Finally, it gives the offender a chance, denied to many accused, of showing that he really does intend to reform and stop offending.'

A court must consider whatever the cause whether the delay was 'unreasonable', see R v Fakatonu [1990] SILR 97 at page 100.

However, the actions of a defendant in causing such delay should also be taken into account, see R v Willie Abusae (Unrep. Criminal Case No. 28 of 1995; Palmer J; at page 1).

See also: R v Dalo [1987] SILR 43 at page 44; Richard Selwyn v R (Unrep. Criminal Case No. 25 of 1991; Muria J) & Berekame v Director of Public Prosecutions [1985 – 86] SILR 272.

[59.23.10] Good Work Record

The 'good work record' of a defendant may be taken into account as a 'mitigating factor', in appropriate circumstances, see Allan Campbell v R (Unrep. Criminal Appeal Case No. 9 of 1994; Court of Appeal; at page 3) & Berekame v Director of Public Prosecutions [1985 – 86] SILR 272.

[59.23.11] Payment Of Compensation

In Michael Buruka v R (Unrep. Criminal Appeal Case No. 31 of 1991) Muria J held at page 1:

'Custom is part of the law of Solomon Islands and payment of compensation has always been part of the custom of the people in Solomon Islands. As such payment of compensation must be accepted in Solomon Islands as a relevant matter for consideration in mitigation of sentences in criminal cases.' (emphasis added)

In R v Asuana [1990] SILR 201 Ward CJ held at page 202:

'It should always be remembered that compensation is an important means of restoring peace and harmony in the community. Thus the courts should always give some credit for such payment and encourage it in an appropriate case.

Thus, any custom compensation must be considered by the court in assessing sentence as a mitigating factor but it is limited in its value. The court must avoid attaching such weight to it that it appears to be a means of subsequently buying yourself out of trouble.

The true value of such payments in terms of mitigation is that it may show genuine contrition and the scale of payment may give some indication of the degree of contrition.' (emphasis added)

In Patterson Runikera v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 14 of 1987) Ward CJ held at page 1:

'[W]here there has been repayment of the sum involved in the offence, the court should be careful to give credit only in proper cases. Clearly, where repayment has occurred before police enquiries begin it is a very strong mitigating [factor] and even when it is only paid shortly before the court hearing. However, here as in this case, it is offered during mitigation on the basis that, with an adjournment, it will be paid, it should have very little effect on sentence. The importance of repayment is that it shows genuine contrition and a real desire to repair the damage caused by the offence. If the money is available and the wish to repay is based on these, it would be reasonable to expect it to be repaid before the trial. When, as here, it is offered on the basis of "If the court feels it would help ……" it should have very little effect on the sentence because it is effectively a conditional offer. Whenever an offer is made to repay, the court should give an opportunity to do so but it must be made clear that repayment at that stage may not affect the sentence.' (emphasis added) [word in brackets added]

In R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996) Palmer J stated at pages 17 – 18:

'Of significance is the fact that compensation had been paid by the accused's relatives to the victims and their people in custom. The significance of compensation in custom however should not be over – emphasised. It does have its part to play in the community where the parties reside, in particular it makes way or allows the accused to re – enter society without fear of reprisals from the victims relatives. Also it should curb any ill – feelings that any other members of their families might have against them or even between the two communities to which the parties come from. The payment of compensation or settlements in custom do not extinguish or obliterate the offence. They only go to mitigation. The accused still must be punished and expiate their crime. I do give credit however for this.'

Customary 'compensation' can be taken into consideration in homicide cases, see R v Sanga (Unrep. Criminal Case No. 7 of 1985; Wood CJ).

See also: Rojumana v R [1990] SILR 132.

[59.23.12] Informers

Information that a defendant was an 'informer' can be used to reduce the sentence of such a defendant.

The provision of such information is a reflection of the defendant's guilt and remorse, provided the information resulted in the prosecution of other offenders, see R v Sinfield (1981) 3 CrAppR(S) 258 & R v Debbay & Izett (1990 – 91) 12 CrAppR(S) 733.

The discount in sentence should be greater than that of a plea of guilty, see R v Wood [1997] 1 CrAppR(S) 347; [1996] CrimLR 916.

The factors to be taken into account include the quality, quantity and accuracy of the information, whether the defendant is willing to give evidence and the possibility of reprisals on his/her family, see R v King (1985) 7 CrAppR(S) 227.

Information that a defendant is an 'informer' should be written down, not read and handed to the Court, see R v Ealing Justices, Ex parte Weafer (1982) 74 CrAppR 204 at page 206.

In X [1999] 2 CrAppR 125 Hughes J, delivering the judgment of the Court of Appeal, stated at pages 127 – 128:

'We consider that the proper principles to be followed in a case of this kind [where the prosecution provided information to the Court that a defendant is an 'informer'] are as follows:

1. It is convenient to remember that a document of this kind, although supplied by a police officer, is supplied at the request of the defendant.

2. Except to the extent that the defendant's contention that he has given assistance is supported by the police, it will not generally be likely that the sentencing judge will be able to make any adjustment in sentence. A defendant's unsupported assertion to that effect is not normally likely to be a reliable basis for mitigation.

3. It follows from that, that court must rely very heavily upon the greatest possible care being taken, in compiling such a document for the information of the judge. The judge will have to rely upon it, without investigation, if police enquiries are not to be damaged or compromised and other suspects, guilty or innocent, are not to be affected.

[…]

4. Except in very unusual circumstances, it will not be necessary, nor will it be desirable for a document of this kind to contain the kind of details which would attract a public interest immunity application. […]

5. If, very exceptionally, such a document does contain information attracting a public interest immunity consideration. [I]t will of course be a case in which the defence can and should be told of the public interest immunity application.

6. Absent any consideration of public interest immunity, which we take to be the general position, a document of this kind should be shown to counsel for the defence, who will no doubt discuss its contents with the defendant. That is not, we emphasise, because it will be necessary to debate its contents, but it is so that there should be no room for any unfounded suspicion that the judge has been told something potentially adverse to the defendant without his knowing about it.

On general principles, a defendant is entitled to see documents put before the trial judge on which he is to be sentenced. Expeditions to the judge's chambers should not be necessary in these cases. There should never normally be any question of evidence being given, nor of an issue being tried upon the question of the extent of the information provided. […]

7. If the defendant wishes to disagree with the contents of such a document, it is not appropriate for there to be cross – examination of the policeman, whether in court or in chambers. The policeman is not a Crown witness, he has simply supplied material for the judge, at the request of the defendant. It would no doubt be possible, in an appropriate case, for a defendant to ask for an adjournment to allow any opportunity for further consideration to be given to the preparation of the document. Otherwise, if the defendant does not accept what the document says, his remedy is not to rely upon it.' (emphasis added)

See also: R v Beckett (1967) 51 CrAppR 180; R v Lowe (1978) 66 CrAppR 122; R v King (1986) 82 CrAppR 120 & R v Sivan & others (1988) 87 CrAppR 407.

The law relating to:

· 'Informers' is examined commencing on page 130; and

· 'Public Interest Immunity' is examined commencing on page 132.

[59.23.13] Level Of Culpability

When sentencing a number of defendants who have been convicted of committing the same offence, credit should be given to those who are less culpable, see R v John Mark Tau & 16 others (Unrep. Criminal Case No. 58 of 1993; Palmer J); R v Robert Mani (Unrep. Criminal Appeal Case No. 29 of 1997; Palmer J); John Ini Lea v R [1988 – 89] SILR 134 & R v Belton & Petrow [1997] 1 CrAppR(S) 215.

[59.23.14] Health Of The Defendant

A serious medical condition of a defendant is a matter of general mitigation, however, there is the need for clear medical evidence, see Rojumana v R [1990] SILR 132 & R v Don Rector Nonga (Unrep. Criminal Appeal Case No. 32 of 1996; Muria CJ).

[59.23.15] Period In Custody Prior To Sentencing

The 'period in custody awaiting trial' may be taken into account in sentencing, see R v Stephen Asipara (Unrep. Criminal Case No. 25 of 1994; Palmer J); R v Francis Kutuna (Unrep. Criminal Case No. 61 of 1993; Palmer J); R v Robert Mani (Unrep. Criminal Appeal Case No. 29 of 1997; Palmer J); R v Toska & Meke (Unrep. Criminal Case No. 33 of 1986; Ward CJ; at page 6) & R v Williams (Meirion) (1989) 11 CrAppR(S) 152.

[59.23.16] Motive

The 'motive' of a defendant for committing an offence may be considered as a 'mitigating factor', in appropriate circumstances.

However, in Annette Qila v R (Unrep. Criminal Case No. 19 of 1995) Palmer J commented at page 2:

'Questions of motive must be treated with great care. It is possible that an offender may come up with a heart – breaking motive for the simple purpose of making a ploy for leniency. The courts therefore must continue to guard against such abuses and excuses, and continue to be vigilant, in detecting and separating the genuine from the false.'

[59.23.17] Risk Of Repetition

The unlikelihood of repetition of the offences is a 'mitigating factor', see Attorney – General's Reference No. 4 of 1989 (1990) 90 CrAppR 366 [[1990] 1 WLR 41] at page 370.

[59.24] Comparative Sentences

[59.24.1] Introduction

In Joel Likilua & Allen Kokolobu v R [1988 – 89] SILR 148 Ward CJ commented at page 149:

'Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide.'

In Sau v R [1982] SILR 65 Daly CJ commented at page 69:

'I must add one further observation on the sentencing process and on appeals against sentence. There is an increasing practice of reference being made to specific previous cases in court. This was done by the learned magistrate in this case and the dissimilarities give counsel a ready – made ground for argument which they understandably take. Sentencing is not an exact mathematical process; if it were it could be done by a computer. The human element both in the person before the court and the sentencer remain a vital part of the process. Previous sentences demonstrate principles or parameters of sentence; but they should not be used as binding precedents to reach a sentence in a particular case. All the judiciary have access to each others sentences and we must rely upon the good sense and experience of the judiciary to reach sentences which reflect not only their own views but also the views of the community.' (emphasis added)

In R v Ben Tugale, Brown Beu, Nelson Oma, James Sala, Loius Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997) Lungole – Awich J commented at page 21:

'[P]unishment in one case usually cannot be matched exactly with punishment in another. Circumstances usually differ even if only in details. Public view about how serious an offence is regarded also changes. Prevalence or otherwise of an offence during particular period also counts.'

His Lordship also commented that it is not useful to compare punishments in cases from different jurisdictions.

See also: David Ironimo v R (Unrep. Criminal Case No. 3 of 1998; Kabui J; at page 3) & Johnson Tariani v R [1988 – 89] SILR 7, per Kapi JA at page 13.

However, the importance of 'comparative sentencing' is that there should be less 'objectionable' disparity in sentencing, provided the sentences imposed are within the range provided by the 'comparative sentences'.

The law relating to 'Comparative Sentencing' is examined commencing on page 979.

[59.24.2] Offences Against Property

[A] Larceny Generally

In R v Christopher Kobi (Unrep. Criminal Case No. 6 of 1995) Palmer J stated that the guidelines as set out by Lord Lane CJ in R v Barrick (1985) 7 CrAppR(S) 142 are relevant in the sentencing of defendants convicted of 'Larceny By Servant' in Solomon Islands which included:

[i] the quality and degree of trust reposed in the offender including his/her rank;

[ii] the period over which the fraud of the thefts have been perpetrated;

[iii] the use to which the money or property dishonestly taken was put;

[iv] the effect upon the victim;

[v] the impact of the offences on the public and public confidence;

[vi] the effect on fellow – employees or partners;

[vii] the effect on the defendant personally;

[viii] the defendant's own history; and

[ix] those matters of mitigation special to the defendant.

In Edward Fiuadi v R [1988 – 89] SILR 150 Ward CJ commented at page 152:

'It must be clearly understood that, in any offence where a breach of trust is involved, a sentence of imprisonment will always be appropriate.'

In R v Litani (Unrep. Criminal Case No. 45 of 1987; Ward CJ) stated at page 1:

'Employment frequently involves a considerable degree of trust being placed in the employee. The public, for whom civil servants work, are entitled to expect a high degree of integrity from their public service and, whenever a breach of trust occurs, the officer involved must expect a custodial sentence.'

For 'comparative sentences', refer to:

· R v Christopher Kobi (supra) [Larceny By Servant];

· Edward Fiuadi v R (supra) [Larceny By Servant];

· R v Fred Gwali & John Morrison (Unrep. Criminal Case Nos. 21 of 1997 & 1 of 1998; Kabui J) [Postal Packets];

· R v John Mark Tau & Others (Unrep. Criminal Case No. 58 of 1993; Palmer J) [Postal Packets];

· Richard Selwyn v R (Unrep. Criminal Case No. 25 of 1991; Muria J) [Simple Larceny];

· R v Ray Kepani (Unrep. Criminal Case No. 138 of 2000; Palmer ACJ);

· R v Sogevari Sione (Unrep. Criminal Review Case No. 139 of 2000 consolidated with Criminal Review Cases Nos. 138 of 2000, 164 of 2000 & 35 of 2001) [numerous offences];

· R v Christopher Saungao (Unrep. Criminal Case No. 30 of 1995; Lungole – Awich J) [Larceny By Servant];

· R v Rex Topilu (Unrep. Criminal Appeal Case No. 35 of 1995; Palmer J) [numerous offences];

· Ben Tioti v R (Unrep. Criminal Appeal Case No. 26 of 1998; Palmer J) [Larceny By Servant];

· Joy Folanto v R (Unrep. Criminal Appeal Case No. 119 of 1990; Palmer J) [Larceny By Servant];

· Geogeo v R (Unrep. Criminal Case No. 2 of 1991; Ward CJ) [Larceny By Servant];

· Belama v Director of Public Prosecutions [1984] SILR 37 [Larceny In Dwelling – House];

· David Kio v R (Unrep. Criminal Appeal Case No. 11 of 1977; Davis CJ) [Simple Larceny];

· Anna Langley v R (Unrep. Criminal Appeal Case No. 17 of 1978; Davis CJ);

· Goldie Pitakaka v R (Unrep. Criminal Appeal Case No. 5 of 1982; Daly CJ) [Larceny By Servant] &

· Grenville Sotokera v R (Unrep. Criminal Appeal Case No. 4 of 1982; Daly CJ) [Larceny By Servant].

[B] Embezzlement

In R v Muliolo Takoa (Unrep. Criminal Case No. 115 of 1993) Muria CJ stated at page 2:

'The offence of Embezzlement is a serious offence as it can be seen from the maximum sentence of 14 years imprisonment for such an offence. It involves a breach of trust put upon the accused. The court is bound to take a serious view of such an offence.

The court must make it absolutely clear that for an offence such an embezzlement which involves a breach of trust, a sentence of imprisonment will always be appropriate.'

For 'comparative sentences', refer to:

· R v Muliolo Takoa (supra);

· Rojumana v R [1990] SILR 132;

· Inito v R [1983] SILR 177; &

· R v Calvin Billy Farabo (Unrep. Criminal Case No. 19 of 1986; Ward CJ).

[C] Break & Enter

In Stanley Bade v R [1988 – 89] SILR 121 Ward CJ stated at page 125:

'Burglary is an extremely serious offence. Anyone who breaks into a private house at night, however careful he may be to try and do it when the house is empty, runs the risk that there is someone inside. The effect on anyone who has been in a house when it is burgled can be extreme and may frequently have the same effect as an act of violence. Even where the house was unoccupied at the time of the burglary, the sense of violation felt by the owners when they return can have very long term effects. […]

When sentencing offences of violence, a court will always consider the effect on the victim in deciding the appropriate sentence. In burglary also, that is an important consideration.

For a normal burglary case, the only appropriate penalty must be an immediate custodial sentence. Where the burglary is not aggravated in any way, the starting point for an adult first offender should be two years imprisonment. From that point, this court should consider any aggravating factors such as committing the offence with the support of others, theft of personal items that can be little or no value to the thief, general ransacking of the house, wanton damage, pre – planning and the degree of breaking necessary to gain entry. If such matters are present they should add to the penalty. Where masks are used, weapons are carried, threats are made or similar excalations in the seriousness of the sentence are present, the penalty should be further increased and it would rarely be appropriate to pass a sentence of less than four years.'

In Paroke & Kuper v R (Unrep. Criminal Case No. 21 of 1992) Muria ACJ held at page 2:

'I do not accept the suggestion that because an offender is young and a first offender, he should not be sent to prison. In cases of serious crimes, and housebreaking is such a crime, the courts must reflect the seriousness of crimes in the sentences they pass even upon a young first offender.'

In Hola, Tome & Lai v R (Unrep. Criminal Case No. 15 of 1992) Muria ACJ stated at pages 1 – 2:

'[T]here can be no doubt that housebreaking is a serious offence. This is reflective of the fact that the law puts the maximum punishment for such offence at 14 years imprisonment. As such it cannot be said that custodial sentence is wrong in principle in housebreaking cases. What the appellant must show is that there are special circumstances that call for leniency in the sentence imposed.

[…] Custodial sentences may properly be imposed on young offenders in appropriate cases as a measure of deterrence to show disapproval by society of the conduct of the young offenders. The offence of house breaking legitimately falls into this category.' (emphasis added)

The distress caused to householders should be taken into account, see R v Luckhurst (1972) 56 CrAppR 209.

See also: Annette Qila v R (Unrep. Criminal Case No. 19 of 1995; Palmer J) & R v Smith & Woollard (1978) 67 CrAppR 211.

In R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996) Palmer J stated at pages 16 – 17:

'[...] I am satisfied an immediate custodial sentence must be expected and imposed. The message must be made clear and plain that those who venture out at night, armed and break into people's homes and attack people in their homes must expect to be sent to prison. People are entitled to feel safe and secure in their homes (whether they have a fence around and good locks on their doors or not), and to have a good nights sleep and rest without being disturbed. It is plain common sense that a persons house is out of bounds to anyone whether in custom, the law or whatever religious beliefs that one might have. (In English law, an Englishman's home is known as his castle, a place of refuge and safety). It is the same here, and the courts have a duty to protect society from such persons with criminal minds. The element of deterrence therefore must be borne in mind and applied so that at least persons who are minded to do such things can at least think twice or again before venturing out in such activities full well what they might face if brought to the courts.

I take note of the submission of learned Counsel for Prosecution in the circumstances of what he described as a trend developing in Honiara of people taking the liberty to break into people's homes, that the Courts must send out a clear and distinct sound to the Public on such matters. However, I do not need to repeat what in my view had been a consistent approach taken by this Court and the lower courts, on such matters. I am not aware that the lower courts may have been taking a less serious view of such offences. Rather, it is my understanding that the courts have continued to apply a firm hand on such offences and if there is any indication that this may not be the case, then let it now be dispelled that the courts must and will continue to take a firm hand on such offences.' (emphasis added)

In R v Robert Mani (Unrep. Criminal Appeal Case No. 29 of 1997) Palmer J held at page 2:

'The offence of "break and enter" contrary to section 293(a) [now section 299(a)] of the Penal Code, carries a maximum penalty of 14 years imprisonment. That without doubt is a serious offence, and the courts have continually made clear that even first offenders convicted under such offence, must expect to go to prison. Custodial sentences for first offenders (class in which this prisoner falls under) range from 9 months in some cases to 24 months. Bearing in mind the "criminal climate" of the times, and the statistical figures sought to be released by the Police on a regular basis, and the stance taken by those involved directly in dealing with such activities, the sentence imposed by the learned Chief Magistrate cannot by any standard be regarded as excessive [ie., 22 months].' (emphasis added) [words in brackets added]

See also: Annette Qila v R (Unrep. Criminal Case No. 19 of 1995; Palmer J).

For 'comparative sentences', refer to:

· Stanley Bade v R (supra) [Dwelling - house];

· R v Robert Mani (supra) [Dwelling - house];

· Paroke & Kuper v R (supra) [Dwelling - house];

· Hola, Tome & Lai v R (supra) [Dwelling - house];

· R v Sogevari Sione (Unrep. Criminal Review Case No. 139 of 2000 consolidated with Criminal Review Cases Nos. 138 of 2000, 164 of 2000 & 35 of 2001; Kabui J) [Store];

· R v Kelly Dennie, Kenazo Maeka & Teddy Weba (Waiba) (Unrep. Criminal Appeal Case No. 12 of 1998; Kabui J) [Dwelling - house];

· Luke Misitana v R (Unrep. Criminal Appeal Case No. 7 of 1996; Muria CJ)[Church];

· David Ironimo v R (Unrep. Criminal Appeal Case No. 3 of 1998; Kabui J) [Store];

· David Ironimo v R (Unrep. Criminal Appeal Case No. 6 of 1996; Muria CJ) [Store];

· Untitled (Unrep. Criminal Case No. 710 of 1991; Muria J) [Store];

· Joel Likilua & Allen Kokolobu v R (Unrep. Criminal Case No. 18 of 1989; Ward CJ) [Warehouse];

· Bati v Director of Public Prosecutions [1985 – 86] SILR 268 [Store];

· Annette Qila v R (Unrep. Criminal Case No. 19 of 1995; Palmer J) [Dwelling – house];

· R v Ben Deresa (Unrep. Criminal Case No. 26 of 1989; Ward CJ) [Dwelling - house];

· R v Carlos Galofia (Unrep. Criminal Review Case No. 1293 of 1991; Muria J). [Dwelling - house];

· R v Willie Abusae (Unrep. Criminal Case No. 28 of 1995; Palmer J) [Dwelling - house];

· R v Henry Su'Umania (Unrep. Criminal Case No. 2 of 1987; Ward CJ) [numerous offences];

· William Hebala Gena & Rolland Zorutu Beti v R (Unrep. Criminal Appeal Case Nos. 12 & 13 of 1982; Daly CJ) [Store];

· Ezekiel Sasafu v R (Unrep. Criminal Appeal Case No. 11 of 1982; Commissioner Bowran).

[D] Arson

The offence of 'Arson' can be an extremely serious offence if there was a potential risk to life. A reckless and careless form of 'Arson' is less serious than if it was deliberate and planned, see R v Mason (1981) 3 CrAppR(S) 182.

For a 'comparative sentence', refer to: R v Ben Ofoania Mino (Unrep. Criminal Case No. 4 of 1997; Palmer J).

[E] Wilful Damage

See: R v Stacey & Wagman (1968) 52 CrAppR 728

[F] False Pretences

For a 'comparative sentence', refer to Wilson Olofua v R (Unrep. Criminal Appeal Case No. 21 of 1978; Davis CJ) & John Inu Ela v R [1988 – 89] SILR 134.

[G] Fraudulent Conversion

In Director of Public Prosecutions v Jones (Unrep. Criminal Appeal Case No. 37 of 1990) Ward CJ commented at page 3:

'In offences such as these ['Fraudulent Conversion'], the amount of money obtained is relevant in measuring the seriousness of the offence but the most important factor is the breach of trust. All employers who entrust their employees with control of money are entitled to expect a high standard of trust. The greater the responsibility of the position, the greater the betrayal of the trust when an offence is committed.' [words in brackets added]

In R v John Foreman Sukina (Unrep. Criminal Case No. 31 fo 1995) Lungole – Awich J commented at page 2:

'A person who deals dishonestly with public money must get the message of disapproval loud and clear, especially when he is a person in position of trust such as the accused is in. The custodial sentence would usually be substantial.'

For 'comparative sentences', refer to:

· R v John Foreman Sukina (supra);

· Suiga v R (Unrep. Criminal Case No. 38 of 1990; Ward CJ);

· R v Nelson Ta'au (Unrep. Criminal Case No. 95 of 1993; Lungole – Awich J);

· Director of Public Prosecutions v Jones (Unrep. Criminal Appeal Case No. 37 of 1990; Ward CJ); &

· R v Lonsdale Manese (Unrep. Criminal Case No. 5 of 1982; Daly CJ).

[H] Forgery

In Susan Tamana v R (Unrep. Criminal Case No. 15 of 1995) Muria CJ stated at page 1:

'[F]orgery is a serious offence and one that merits custodial sentence.'

For 'comparative sentences', refer to:

· Susan Tamana v R (supra);

· Rojumana v R [1990] SILR 132;

· Magu v R [1980 – 81] SILR 40;

· Patterson Runikera v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 14 of 1987; Ward CJ);

· R v Ofai & five others (Unrep. Criminal Case No. 11 of 1990; Ward CJ); &

· R v Ray Kepani (Unrep. Criminal Case No. 138 of 2000; Palmer ACJ).

[I] Receiving

In R v Ofai & five others (Unrep. Criminal Case No. 11 of 1990) Ward CJ commented at page 15:

'[I]f it was not for the receivers, many crimes would not pay. It is the knowledge that stolen property can be sold to others that makes theft and similar offences pay.'

In R v Webbe, The Times, June 13, 2001, the Court of Appeal issued guidelines on sentencing those convicted of 'Receiving'. Where the receiver had knowledge of the original offence, the seriousness of the offence is inevitably linked to the seriousness of that offence. That Court identified the following specific 'aggravating factors' for this offence:

[i] the closeness of the receiver to the primary offence (geographical or temporal);

[ii] the particular seriousness of the primary offence;

[iii] the high value of property, including sentimental value;

[iv] the fact that the property were the proceeds of a domestic burglary;

[v] the level of sophistication in relation to the receiving;

[vi] the provision by the receiver as a regular outlet for stolen property;

[vii] the level of profit made or expected by the receiver;

[viii] any threats of violence or abuse of power other others by the receiver; and

[ix] the commission of an offence whilst on bail.

(See Archbold, Criminal Pleading, Evidence and Practice, 2002 ed; page 1871).

See also: John Inu Ela v R [1988 – 89] SILR 134.

[59.24.3] Offences Against The Person

[A] Introduction

When sentencing a defendant in respect of an 'Offence Against The Person' involving violence, the following factors should be taken into account:

[i] the injuries suffered by the complainant / victim, see Freezer Lausalo v R (Unrep. Criminal Appeal No. 4 of 1994; Court of Appeal; at page 6);

[ii] whether the complainant / victim was defenceless, see Freezer Lausalo v R (Unrep. Criminal Appeal No. 4 of 1994; Court of Appeal; at page 6);

[iii] the motive for the commission of the offence, see Freezer Lausalo v R (Unrep. Criminal Appeal No. 4 of 1994; Court of Appeal; at page 6);

[iv] the type of weapon used.

The law relating to the 'Use Of Weapons' is examined on page 939; and

[v] whether the defendant was provoked, see Holmes v Director of Public Prosecutions (1946) 31 CrAppR 123; [1946] AC 588, per Lord Simon at pages 142 and 601 respectively.

In Stanley Bade v R [1988 – 89] SILR 121 Ward CJ commented at page 125:

'When sentencing offences of violence, a court will always consider the effect on the victim in deciding the appropriate sentence.'

The following 'Practice Note' was issued by Davis CJ:

'[T]he only information about the harm suffered by the victim in this case was the description of the wound given by the prosecutor in recounting the facts of the case. In all cases of offences involving serious injury to the person (including defilement) a medical report, if available, should be produced to the court, even though the accused has pleaded guilty to the charge. The prosecutor will usually have to refer to the medical report when describing the injury suffered in giving his account of the facts of the case to the court, and he should then hand in the report to the court for inclusion in the court record', see John Lui v R (Unrep. Criminal Appeal Case No. 7 of 1979). (emphasis added)

However, '[medical] reports should be properly signed and certified by the nurse or doctor making the report. A failure to do so, can result in a rejection of such report by the court', see R v Monica Melody (Unrep. Criminal Review Case No. 119 of 1993; Palmer J; at page 5).

'[P]ersons who deliberately attack police officers in the lawful execution of their duty must expect an immediate custodial sentence', as commented by Palmer J in Michael Waraka & George Apuitau v R (Unrep. Criminal Appeal Case No. 15 of 1997; at page 3). (emphasis added)

[B] Murder

Section 200 of the Penal Code (Ch. 26) states that a person found guilty of 'murder' 'shall be sentenced to imprisonment for life'. (emphasis added) That mandatory fixed penalty must be imposed, see Gerea & others v Director of Public Prosecutions [1984] SILR 161.

See also: Daniel Samani v R (Unrep. Criminal Appeal Case No. 2 of 1995; Court of Appeal).

[C] Attempted Murder

For 'comparative sentences', refer to:

· R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996; Palmer J); &

· Johnson Tariani v R [1989 – 89] SILR 7.

[D] Manslaughter

In R v Stephen Asipara (Unrep. Criminal Case No. 25 of 1994) Palmer J commented at page 1:

'The maximum sentence of punishment that can be imposed on such a charge is [… a] sentence of life imprisonment. However, […], such sentences are normally reserved for the more serious cases of manslaughter.

Any case of manslaughter nevertheless is serious, because it involves the loss of life. However, the Courts have consistently taken the approach of looking at the surrounding circumstances of each case and then deciding whether a severer or lesser sentence should be imposed.' [word in brackets added]

In Allan Campbell v R (Unrep. Criminal Appeal Case No. 9 of 1994) Williams JA, delivering the judgment of the Court of Appeal, stated at page 2:

'In Solomon Islands, as is the case in comparable jurisdictions, most incidents of death resulting from negligent driving give rise to a charge of dangerous or culpable driving causing death. It is only the most serious of cases which call for a manslaughter charge and even then such a charge is frequently not proven.

As a matter of principle when manslaughter is charged and proven a heavier penalty is called for than would be the case if only the lesser charge was established. But there would need to be proportionally between the level of sentence for each offence.

Similarly there has to be proportionally between the sentence imposed for a motor manslaughter and the sentences imposed for manslaughter generally. Of course manslaughter covers a variety of situations and in consequence there are usually different ranges of sentencing options for the different types of manslaughter. What is important is that the principle of proportionality is recognised and the sentence is appropriate given the facts of the particular case.

[…]

Both counsel referred this court to comparable sentences for manslaughter imposed recently in the High Court, but it was conceded that this was the first motor manslaughter to arise before the court. Manslaughter cases in the domestic situation where no weapon was used have consistently resulted in sentences of imprisonment in the range of 2 to 4 years. Where a weapon was used in one non – domestic situation a sentence of 6 years imprisonment has been imposed.'

As regards medical defects which may have resulted in the death of the victim as a consequence of the offence, see R v Ruby (1988) 86 CrAppR 186.

See also: R v Mitchell (1989) 89 CrAppR 169; [1989] RTR 186.

For 'comparative sentences', refer to:

[1] Domestic

· R v Stephen Asipara (supra) [no weapon];

· R v Patricia Melvin Kala (Unrep. Criminal Case No. 17 of 1999; Lungole - Awich J) [weapon used];

· R v Freda Fagarigia (Unrep. Criminal Case No. 35 of 1990);

· R v Gabriel Waiko & Martin Manehai (Unrep. Criminal Case No. 19 of 1998; Kabui J) [weapon used];

· R v Tuanitete (Unrep. Criminal Case No. 29 of 1992; Muria CJ) [weapon used];

· R v Maclean Lawrence (Unrep. Criminal Case No. 98 of 1993; Palmer J) [no weapon];

· R v Sipiriano Hanoroanimae (Unrep. Criminal Case No. 8 of 1996; Muria CJ) [no weapon];

· R v Stephen Asipara (Unrep. Criminal Review Case No. 25 of 1994; Palmer J) [no weapon];

· R v Peter Aunipuri (Unrep. Criminal Case No. 25 of 1988; Ward CJ) [no weapon];

· R v John Waiwai (Unrep. Criminal Case No. 41 of 1994; Muria CJ); &

· R v William Erieri (Unrep. Criminal Case No. 3 of 1993; Palmer J) [no weapon].

[2] Non - Domestic

· R v Pituvaka (Unrep. Criminal Review Case No. 22 of 1996; Ward CJ) [weapon used];

· R v Gabriel Oda (Unrep. Criminal Review Case No. 66 of 1999);

· R v Dickson Maeni (Unrep. Criminal Case No. 117 of 1999; Lungole – Awich J) [weapon used];

· R v Kwaimani (Unrep. Criminal Case No. 3 of 1997; Palmer J) [no weapon];

· R v John Teo'ohu [1990] SILR 265. [weapon used];

· R v Ben Tungale, Brown Beu, Nelson Oma, James Sala, Louis Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997; Lungole –Awich J) [weapon used];

· R v Bandu Pude (Unrep. Criminal Case No. 37 of 1994; Palmer J) [no weapon used];

· R v Garuma [1985 – 86] SILR 192 [non – domestic] [no weapon used];

· R v Wisely Shem Tiuta (Unrep. Criminal Case No. 1 of 1985; Wood CJ) [weapon used]; &

· R v Taufe (Unrep. Criminal Case No. 42 of 1987; Ward CJ) [no weapon].

As regards, 'Vehicular Manslaughter', refer to:

[i] Allan Campbell v R (supra); and

[ii] the section which examines the 'Disqualification Of Drivers' commencing on page 954.

[E] Infanticide

In R v Salome Lamtoa Irobako (Unrep. Criminal Case No. 24 of 1991) Muria ACJ commented at pages 4 – 6:

'[S]ection 199 [now section 206] of the Penal Code is designed to give a more realistic legal protection to recently born infants and at the same time to admit a reduced degree of culpability on the part of the mother who has been charged with the killing of her child in the circumstances stated under that section. […]

[…]

The offence of infanticide is a very serious offence. The seriousness of the offence lies in the fact that an innocent child has been deprived of the right to life and to reflect that seriousness, the law puts the maximum punishment for the offence to imprisonment for life.' [words in brackets added]

For 'comparative sentences', refer to:

· R v Salome Lamtoa Irobako (supra);

· R v Anna Katea (Unrep. Criminal Case No. 35 of 1996; Lungole – Awich J); &

· Edwin Tobe v Director of Public Prosecutions (Unrep. Criminal Case No. 24 of 1987; Ward CJ).

[F] Grievous Harm

For 'comparative sentences', refer to:

· Freezer Lausalo v R (Unrep. Criminal Appeal No. 4 of 1994; Court of Appeal);

· Saukoroa v R [1983] SILR 275;

· Michael Waraka & George Apuitau v R (Unrep. Criminal Appeal Case No. 15 of 1997; Palmer J);

· R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996; Palmer J);

· R v Misiben (Unrep. Criminal Review Case No. 15 of 1994; Palmer J);

· R v Neemia Boberio (Unrep. Criminal Review Case No. 24 of 1992);

· R v Mosi Gasimata (Unrep. Criminal Review Case No. 114 of 1993; Muria CJ); &

· R v Charles Edward Gasa (Unrep.Criminal Case No. 5 of 1989; Ward CJ).

[G] Bodily Harm

For a 'comparative sentence', refer to R v Fakatonu (Unrep. Criminal Review Case No. 22 of 1989; Ward CJ).

[H] Unlawful Wounding

For 'comparative sentences', refer to:

· R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996; Palmer J);

· Kingi Pepe v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 4 of 1987; Ward CJ);

· John Lui v R (Unrep. Criminal Appeal Case No. 7 of 1979; Davis CJ);

· Dalo v R [1987] SILR 43;

· Director of Public Prosecutions v Simeon (No. 2) [1985 – 86] SILR 147;

· R v Asuana [1990] SILR 201;

· R v Donny Tinoika, Elliot Frank & Warren Bao (Unrep. Criminal Case No. 46 of 1986; Ward CJ); &

· Jazeriel Fauniala v R (Unrep. Criminal Appeal Case No. 10 of 1982; Commissioner Crome).

[I] Common Assault

For 'comparative sentences', refer to:

· Frank Paro v R (Unrep. Criminal Case No. 63 of 1993; Muria CJ);

· Michael Buruka v R (Unrep, Criminal Appeal Case No. 31 of 1991; Muria J);

· Ben Tioti v R (Unrep. Criminal Appeal Case No. 26 of 1998; Palmer J); &

· John Formani & Jim Tema (Unrep. Criminal Appeal Case Nos. 14 & 17 of 1982; Daly CJ).

[J] Armed Robbery

In R v Lenny Wanefalea (Unrep. Criminal Case No. 13 of 1992) Muria ACJ stated at page 2:

'Small businesses like that of the victim in this case are susceptible to such bullying behaviour, such as those of the accused. They are easy target for people, like the accused who wish to help themselves at other people's hard – work. Small stores such as that concerned in this case, play an important role in providing the needed service to the public in the areas where they are operating. In spite of the ailing economy the country is going through, the victim in this case has done his share in a small but important way through his small store in developing this country. The law must therefore support him and protect him from people like the accused. The only way in which the Court can assure the victim that the law will protect him is to make it clear to people who do commit this sort of offence that inevitably a severe sentence with deterrent element will be imposed on them so that other like – minded robbers, greedy persons will realise that it is not worth taking the chances.'

An 'armed robbery' where the offender is armed with a knife even if it is not used directly must result in a lengthy sentence, see Alick Fefele v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 5 of 1987; Ward CJ; at page 6). (emphasis added)

Refer also to the law relating to the 'Use Of A Weapon In The Commission Of An Offence' which is examined on page 939.

For 'comparative sentences', refer to:

· R v Lenny Wanefalea (supra);

· Alick Fefele v Director of Public Prosecutions (supra);

· R v Victor Tadakusu (Unrep. Criminal Case No. 239 of 1999; Palmer J);

· Jimmy Robin Kelly & others v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 1 of 1991; Court of Appeal);

· Fafale v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 5 of 1987; Ward CJ); &

· R v Inisafi Tome & seven others (Unrep. Criminal Case No. 15 of 1985; Wood CJ).

[K] Attempts To Procure Abortion

For a 'comparative sentence', refer to John Flynn v R (Unrep. Criminal Appeal Case No. 2 of 1998; Court of Appeal).

[L] Demanding Money With Menaces

For 'comparative sentences', refer to:

· R v Alick Sura & others (Unrep. Criminal Case No. 46 of 1993; Palmer J); &

· Augustine Laui v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 11 of 1987; Ward CJ).

[59.24.4] Offences Of A Sexual Nature

[A] Rape & Attempted Rape

In Peter Sade Kaimanisi v R (Unrep. Criminal Appeal Case No. 3 of 1995) Muria CJ, with whom Kapi and Williams JJA concurred, stated at pages 5 – 6:

'It must be pointed out that rape is a crime of violence and as such there must be some element of deterrence in the sentence passed for such a crime. Those who are charged with rape and convicted must expect custodial sentence. The severity of such sentence will depend on the seriousness and the nature of the offence.

The Courts are obliged to have regard to and to uphold the fundamental principles which we embody under our supreme law, the Constitution, such principles as respect for human dignity as well as enhancing that dignity, see Preamble to the Constitution. Our Society has survived because of respect for such principles and those who defy such harmonious rules will be met with sanctions imposed by the society. That power of the society to impose sanctions has been shared with the Courts who must exercise it on behalf of the society and to impose sanction on those who violate principles which are designed for the respect of each other's human dignity and the harmony of society as a whole. Rape is a crime of violence and must be condemned as a violent disregard for such principles and one that must be regarded as anti-social, disrespectful for each other's dignity and provide breeding ground for social disharmony. With those principles in mind, the Courts are entitled to take a very stern view of the crime of rape and to reflect that in the type of sentences they imposed.'

In R v John Auwahau (Unrep. Criminal Case No. 18 of 1993) Palmer J stated at pages 1 – 2:

'In the case of R v Ligiau and Dori SILR 1985/86 214 in which two accused were charged for offences of rape and attempted rape, his Honour, Chief Justice Ward adopted the views of Lord Lane in the case of R v Billam (1986) 1 WLR 349 [(1986) 82 CrAppR 347] as an indication of what the current practice should be in passing sentence on rape cases. I quote the relevant page:

"For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.

At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate.

Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate.

The crime should in any event be treated as aggravated by any of the following factors: (1) violence is used over and above the force necessary to commit the rape; (2) a weapon is used to frighten or wound the victim; (3) the rape is repeated; (4) the rape has been carefully planned; (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind; (6) the victim is subjected to further sexual indignities or perversions; (7) the victim is either very old or very young; (8) the effect upon the victim, whether physical or mental, is of special seriousness.

Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage. But attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence."' (emphasis added)

In Koraua & Kaitira v R [1988 – 89] SILR 4 the Court of Appeal held at page 5:

'We accept that, generally speaking, an attempt is to be punished with a lesser sentence than that for the completed offence, but there may be some circumstances in which an attempt will be more severely punished than a complete rape in other circumstances; further, there may be circumstances when an attempt is almost as serious as the complete rape would be.'

Evidence of how serious the offence is regarded in the particular community, especially in its custom is important, see Berekame v Director of Public Prosecutions [1985 – 86] SILR 272 (Court of Appeal) & R v Jack Faununu (Unrep. Criminal Case No. 10 of 1997; Lungole – Awich J; at page 2).

In Edward Fiuadi v R [1988 – 89] SILR 150 Ward CJ commented at page 152:

'It must be clearly understood that, in any offence where a breach of trust is involved, a sentence of imprisonment will always be appropriate.' (emphasis added)

See also: R v Roberts & Roberts (1982) 74 CrAppR 242.

For 'comparative sentences', refer to:

[1] Rape

· Peter Sade Kaimanisi v R (supra);

· R v John Auwahau (supra);

· Berekame v Director of Public Prosecutions (supra);

· R v Jack Faununu (supra);

· William Tebounapa v R (Unrep. Criminal Appeal Case No. 2 of 1999; Court of Appeal) [custom doctor];

· R v Jacob Waipage (Unrep. Criminal Case No. 46 of 1996; Lungole – Awich J);

· R v Peter Taku (Unrep. Criminal Case No. 3 of 1995; Palmer J);

· R v John Auwahau (Unrep. Criminal Case No. 18 of 1993; Palmer J);

· Bollen Toke v R (Unrep. Criminal Case No. 50 of 1988; Ward CJ);

· R v Paul Makabo (Unrep. Criminal Case No. [Not Recorded]; Ward CJ);

· R v Max Pohirai (Unrep. Criminal Case No. 14 of 1988; Ward CJ);

· R v Leonard Laule (Unrep. Criminal Case No. 29 of 1976; Davis CJ);

· R v Gere [1980 – 81] SILR 145;

· Koboa v R [1980 – 81] SILR 43;

· R v Ligiou & Dori [1985 – 86] SILR 214;

· R v Willie Abusae (Unrep. Criminal Case No. 28 of 1995; Palmer J);

· R v Wilson Ngao'o (Unrep. Criminal Case No. 9 of 1987; Ward CJ);

· R v John Maetarau (Unrep. Criminal Case No. 4 of 1990; Ward CJ);

· R v Baraniko Bataka (Unrep. Criminal Case No. 33 of 1987; Ward CJ);

· R v Dennis Feitei (Unrep. Criminal Case No. 10 of 1983; Daly CJ); &

· R v Paulo Sale Kitini (Unrep. Criminal Case No. 13 of 1982; Daly CJ).

[2] Attempted Rape

For 'comparative sentences', refer to:

· Koraua & Kaitira v R (supra); &

· Dickson Kwaifanabo & Sale Kwatebo v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 16 of 1984; Ward CJ).

[B] Indecent Assault

In Edward Fiuadi v R [1988 – 89] SILR 150 Ward CJ commented at page 152:

'It must be clearly understood that, in any offence where a breach of trust is involved, a sentence of imprisonment will always be appropriate.' (emphasis added)

For 'comparative sentences', refer to:

· Tebounapa v R (Unrep. Criminal Appeal Case No. 2 of 1999; Court of Appeal);

· R v Lawrence Hiolohaona (Unrep. Criminal Case No. 11 of 1991; Ward CJ); &

· R v Molanisau (Unrep. Criminal Case No. 2 of 1988; Ward CJ).

[C] Incest

In Philip Hagataku v R (Unrep. Criminal Case No. 8 of 1993) Palmer J commented at page 1:

'The offence of incest in our Penal Code which is derived from the English Law has its roots in the Bible. It is however not altogether foreign and something that was introduced into these islands only when the Christian Gospel was brought to these islands at the turn of this century. In most cultures, incestuous relationships are strictly forbidden in custom. As in the Bible, such relationships will bring a curse into that person's house and family.

So although the defendant may not have been as enlightened as he should be about this offence he should have been aware of the way his society and community would show repugnance and detest at any such activity. It is this customary and religious context that perhaps make such offences to be considered in a more stricter light than say the position is in a westernised society.'

In Edward Fiuadi v R [1988 – 89] SILR 150 Ward CJ commented at page 152:

'It must be clearly understood that, in any offence where a breach of trust is involved, a sentence of imprisonment will always be appropriate.' (emphasis added)

In Attorney General's Reference No. 1 of 1989 (1990) 90 CrAppR 141; [[1989] 1 WLR 117; [1989] 3 AllER 571] the Court of Appeal laid down guidelines for sentencing in cases of 'Incest' by a father against a daughter. Apart from the age of the child other 'aggravating factors' were identified. The Court also identified a number of 'mitigating factors'.

Lord Lane CJ, delivering the judgment of the Court, stated at pages 147 – 148:

'Other aggravating factors, whatever the age of the girl may be, are (inter alia) as follows:

1. If there is evidence that the girl has suffered physically or psychologically from the incest.

2. If the incest has continued at frequent intervals over a long period of time

3. If the girl has been threatened or treated violently by or was terrified of the father.

4. If the incest has been accompanied by perversions abhorrent to the girl, eg. buggery or fellatio.

5. If the girl has become pregnant by reason of the father failing to take contraceptive measures.

6. If the defendant committed similar offences against more than one girl.

Possible mitigating factors are (inter alia) the following:

1. A plea of guilty, It is seldom that such a plea is not entered, and it should be met by an appropriate discount, depending on the usual considerations, that is to say how promptly the defendant confessed and his degree of contrition and so on.

2. If it seems that there was a genuine affection on the part of the defendant rather than the intention to use the girl simply as an outlet for his sexual inclinations.

3. Where the girl has had previous sexual experience.

4. Where the girl has made deliberate attempts at seduction.

2. Where, as very occasionally is the case, a shorter term of imprisonment for the father may be of benefit to the victim and the family.'

For 'comparative sentences', refer to:

· Philip Hagataku v R (supra);

· R v Joseph Atkin (Unrep. Criminal Case No. 18 of 1994; Palmer J);

· Director of Public Prosecutions v Maesala [1988 – 89] SILR 145;

· Peter Roko v R [1990] SILR 270;

· Bollen Toke v R (Unrep. Criminal Case No. 50 of 1988; Ward CJ);

· R v Maesala (Unrep.Criminal Case No. 39 of 1988; Ward CJ); &

· Bebini v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 44 of 1986; Ward CJ).

[D] Defilement Of Girls

In R v Wilson Iroi (Unrep. Criminal Case No. 17 of 1991) Muria CJ stated at page 7:

'The purpose of the law in this area is to protect young girls from men as well as to protect them from themselves.'

In R v Craig A'Aron (Unrep. Criminal Case No. 14 of 1998) Kabui J stated at page 4:

'This is a case where I must impose a custodial sentence to demonstrate the seriousness of this offence and to reaffirm to the community that the criminal law frowns upon the abuse of young girls in Solomon Islands. This is obviously the intention of Parliament when it stipulates imprisonment for life as a penalty for this offence.'

In Mulele v Director of Public Prosecutions & Poini v Director of Public Prosecutions [1985 – 86] SILR 145 the Court of Appeal stated at page 146:

'We were asked to formulate a sentencing policy for future guidance. Each case must depend on its own facts but matters which would be considered amongst others are on the one hand disparity of age, abuse of a position of trust and a subsequent pregnancy and on the other hand the character of the girl herself.'

In Edward Fiuadi v R [1988 – 89] SILR 150 Ward CJ commented at page 152:

'It must be clearly understood that, in any offence where a breach of trust is involved, a sentence of imprisonment will always be appropriate.' (emphasis added)

For 'comparative sentences', refer to:

· Mulele v Director of Public Prosecutions & Poini v Director of Public Prosecutions (supra);

· R v Wilson Iroi (supra);

· R v Craig A'Aron (supra);

· R v Derick Waeho (Unrep. Criminal Case No. 34 of 1996; Lungole – Awich J);

· R v Naphtali Mule (Unrep. Criminal Case No. 34 of 1991; Muria J);

· R v James Rasini & four others (Unrep. Criminal Case No. 25 of 1990; Ward CJ).

· R v Johnson Tome (Unrep. Criminal Case No. 24 of 1990; Ward CJ);

· Berekame v Director of Public Prosecutions [1985 – 86] SILR 272;

· R v Toska & Meke (Unrep. Criminal Appeal Case No. 33 of 1986; Ward CJ);

· R v Peter Taku (Unrep. Criminal Case No. 3 of 1995; Palmer J);

· R v Eric Tonda & others (Unrep. Criminal Case No. 21 of 1989; Ward CJ);

· R v Nathaniel Laothenga & others (Unrep. Criminal Case No. 13 of 1985; Wood CJ);

· Ambrose Ravini v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 28 of 1986; Ward CJ); &

· R v Taylor; R v Simons; R v Roberts [1977] 3 AllER 527.

[59.24.5] Traffic Offences

[A] Dangerous Or Reckless Driving Causing Death

In R v Boswell & others (1984) 79 CrAppR 277 the Court of Appeal laid down guidelines for sentencing in cases of 'Dangerous Driving Causing Death'.

The following 'aggravating factors' were identified:

[i] the consumption of alcohol or drugs;

[ii] racing or competitive driving against another motorist; excessive speed; showing off;

[iii] disregard of warnings of passengers;

[iv] a prolonged, persistent and deliberate course of very bad driving;

[v] other traffic offences committed at the same time;

[vi] previous convictions for motoring offences, particularly offences which involved bad driving or the consumption of alcohol;

[vii] more than one person killed as a result of the offence;

[viii] behaviour at the time of the offence such as trying to avoid apprehension by failing to stop; and

[ix] causing death in the course of dangerous driving in an attempt to avoid detection and apprehension.

The following 'mitigating factors' were identified:

[i] whether the act of dangerous driving was 'one off', ie., a momentary error of judgment;

[ii] a good driving record;

[iii] genuine shock or remorse; and

[iv] whether the victim is either a close relative or a friend when emotional shock will likely be great.

The same 'factors' would equally apply to the offence of 'Reckless Driving Causing Death'.

See also: R v Hudson (1989) 89 CrAppR 57 & Attorney – General's Reference Nos. 3 & 5 of 1989 (1990) 90 CrAppR 358.

For a 'comparative sentence', refer to Allan Campbell v R (Unrep. Criminal Appeal Case No. 9 of 1994; Court of Appeal).

Refer also to the section which examines the 'Disqualification Of Drivers' commencing on page 954.

[B] Dangerous Or Reckless Driving

Refer to R v Boswell & others (supra).

See also: R v Guilfoyle (1973) 57 CrAppR 549.

For 'comparative sentences', refer to:

· R v George Ale (Unrep. Criminal Review Case No. 525 of 1996; Palmer J);

· R v Jack Lae (Unrep. Criminal Review Case No. 72 of 1992; Muria J); &

· Untitled (Unrep. Criminal Case No. 30 of 1991; Muria J).

Refer also to the section which examines the 'Disqualification Of Drivers' commencing on page 954.

[C] Driving Without Due Care & Attention Or Reasonable Consideration

In John Votaia v R (Unrep. Criminal Appeal Case No. 14 of 1991) Ward CJ stated at page 3:

'Whilst the consequences of the driving must always be borne in mind, the court should not attach undue importance to them. The level of sentence must relate to the nature and manner of the driving itself. It is not unusual for a minor lapse by a driver to have very serious effects but, if the lapse was simply a lack of due care and attention, it remains careless and not dangerous driving. In this case, the failure to give a sufficiently wide berth when overtaking the motor cycle was a bad case of careless driving but it falls well short of the worst such case.

It is extremely rare to order disqualification, in cases of careless driving and when it is done, it is not normally appropriate to order a long period. When the Court finds a case is a proper one to order disqualification, it should then consider the period appropriate to the facts of the case before it. The order is part of the punishment but the court should only impose a lengthy term if the driving was such or the defendant's driving record was so bad that there is a need to protect the public from his driving.' (emphasis added)

For a 'comparative sentence', refer to William Alegao v R (Unrep. Criminal Appeal Case No. 18 of 1982; Daly CJ).

Refer also to the section which examines the 'Disqualification Of Drivers' commencing on page 954.

[D] Driving Under The Influence

In Cheffers v R (Unrep. Criminal Case No. 11 of 1989) Ward CJ commented at page 3:

'Driving whilst under the influence of liquor is extremely serious offence. Anyone who drives in such a state has deliberately than a course of action that puts his own and far more seriously, other people's lives at risk. However carefully he may attempt to drive, his reactions if confronted with an emergency will not be as effective as when he has taken no alcohol.'

In R v Timothy Sulega (Unrep. Criminal Review Case No. 133 of 1999) Palmer J stated:

'As a guideline the minimum fines to be imposed on drunk driving offences should not be less than $200.00. Only for very good reasons should they go below $200.00 and must be stated in the sentence. For second offenders, I would expect a custodial sentence to be imposed unless there are exceptional reasons for not doing so.'

In Kausimae v R (Unrep. Criminal Appeal Case No. 29 of 1988) Ward CJ commented at page 2:

'I make it clear that, normally, any person that drives a public service vehicle whilst under the influence of drink must expect an immediate custodial sentence.'

For 'comparative sentences', refer to:

· R v David Leliana (Unrep. Criminal Review Case No. 6 of 1998; Palmer J);

· R v Enley Honimae (Unrep. Criminal Review Case No. 42 of 1996; Palmer J);

· R v Eddie Goni (Unrep. Criminal Review Case No. 19 of 1996; Palmer J);

· R v Matthew Iroga (Unrep. Criminal Review Case No. 8 of 1998; Palmer J);

· R v Maeli Rinau (Unrep. Criminal Review Case No. 18 of 1996; Palmer J); &

· R v Simon Peter Lifuana (Unrep. Criminal Case No. 6 of 1981; Daly CJ).

Refer also to the section which examines the 'Disqualification Of Drivers' commencing on page 954.

[E] In - Charge Under The Influence

For a 'comparative sentence', refer to Kausimae v R (Unrep. Criminal Appeal Case No. 29 of 1988; Ward CJ).

Refer also to the section which examines the 'Disqualification Of Drivers' commencing on page 954.

[F] Disqualified Driving

In R v Peter Baru [1988 – 89] SILR 132 Ward CJ commented at page 132:

'Driving whilst disqualified is a serious matter because it shows a flagrant disregard for a court order.'

Section 35 of the Traffic Act (Ch. 131) provides the following penalty in respect of the offence of 'Disqualified Driving':

'[L]iable to imprisonment for twelve months, or, if the court thinks that having regard to the special circumstances of the case a fine would be an adequate punishment for the offence, to a fine of five hundred dollars or to both such imprisonment and such fine.' (emphasis added)

In Wilikai v R [1980 – 81] SILR 82 Daly CJ held at page 84:

'It is clear […] that unless the court finds "special circumstances" it is equally obliged to sentence an offender against section 34(b) of the Solomon Islands Traffic Act to imprisonment.

I also agree with Hilbery J who said in Lines v Hersom (ob. sit.) at p. 655):

"I regard the words that the court think a fine would be an adequate punishment for the offence as of some importance as showing that in this section the statute is contemplating, not the offender, but essentially, the offence, and the special circumstances which the court must find are circumstances of the case and not of the offence, disregarding any circumstances special to the offender."

[…]

[…] The burden of proving "special circumstances" and "special reasons" is on the accused and he must do so by means of evidence and not merely by making statements (see Jones v English (1951) 2 AllER 853.'

Refer also to the section which examines the 'Disqualification Of Drivers' commencing on page 954.

[G] Driving Uninsured Motor Vehicle

'It is my view that driving a motor vehicle which is known to be uninsured is a very serious offence and unless there are good reasons to the contrary a disqualification should follow the conviction', see Practice Direction No. 2 of 1985 issued by Wood CJ.

In Kirunwai & Kirunwai v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 29 of 1986) Ward CJ commented at page 2:

'Driving without third party insurance is a serious matter because of the consequences that can flow from an accident. Any owner of a vehicle has a responsibility to insure his vehicle for such risks and that must include renewing the insurance to provide continuous cover.'

Refer also to the section which examines the 'Disqualification Of Drivers' commencing on page 954.

[H] Unlicensed Driving

For a 'comparative sentence', refer to Howard Haomae v R (Unrep. Criminal Appeal Case No. 106 of 2001).

[59.24.6] Miscellaneous Offences

[A] Unauthorised Sales Of Liquor

In R v John Fouoto; R v Stanley Ramo Jimmy & R v George Ului (Unrep. Criminal Review Case No. 251 of 1999) Palmer J commented at page 2:

'[I] make the following observations:

(1) The maximum fine of two hundred dollars in my respectful view is now too low. It is obvious offenders are fully aware of the risks but are in it for the quick money and profits that can be obtained.

(2) Offences of this nature accordingly have not declined but increased with associated problems.

The Police have worked hard to arrest the culprits and bring them to the courts. Illegal sales of liquor, in particular beer however have continued unabated. In view of these matters, it is my respectful view, Magistrates across the country must seriously consider imposing the maximum fine of $200-00 unless there are exceptional reasons for not doing so. […]

The responsible authorities should also not consider a general increase in the penalties prescribed in Part IX of the Liquor Act (Cap. 144).' (emphasis added)

[B] Consuming Liquor in a Public Place

For a 'comparative sentence', refer to Alphonsus Kopana v R (Unrep. Criminal Case No. 5 of 1996; Muria CJ).

[C] Escaping Lawful Custody

In Harry Rurai v R (Unrep. Criminal Appeal Case No. 29 of 1991) Muria J stated at page 2:

'Sentence on a charge of escaping from prison must as a matter of principle be made consecutive to the prison sentence the prisoner is currently serving. But it is wrong, however, to impose a heavy sentence on a prisoner who while on the run did not commit any other offence.'

See also section 42 of the Penal Code (Ch. 26).

[D] Cultivating Dangerous Drug

For a 'comparative sentence', refer to Warnecke v R [1983] SILR 279.

[E] Possession Of Firearms Or Ammunition Without License

For 'comparative sentences', refer to:

· R v Daniel Upang & Simister Kimisi & R v Cherry Bula (Unrep. Criminal Appeal Case Nos. 19 & 20 of 1991; Muria J);

· R v Victor Tadakusu (Unrep. Criminal Case No. 239 of 1999; Palmer J); &

· Von Ralph Panda v R (Unrep. Criminal Review Case No. 26 of 1991; Ward CJ).

[F] Giving Ammunition To A Person Not Licensed

For a 'comparative sentence', refer to R v Hudson Malefo & two others (Unrep. Criminal Case No. 31 of 1993; Palmer J).

[G] Endangering Safety Of Passengers

For a 'comparative sentence', refer to Namona & Namona v R (Unrep. Criminal Appeal Case No. 1 of 1991; Ward CJ).

[H] Unlawful Damage By Rioters

For a 'comparative sentence', refer to Solomon Keto & six others (Unrep. Criminal Appeal Case No. 9 of 1982; Daly CJ).

[I] Perjury

Perjury is a very serious offence and should attract severe penalties, see R v Simmonds (1969) 53 CrAppR 488.

For a 'comparative sentence', refer to Tonga v R (Unrep. Criminal Case No. 4 of 1987; Ward CJ).

[J] Attempted Bribery

In James Baura v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 38 of 1986) Ward CJ stated at page 2:

'Attempting to bribe a police officer is a serious offence. It strikes at the very heart of the system of justice in the country. Anyone who is tempted to try to bribe a public officer must realise he will go to prison.'

[K] Customs & Excise Act

For 'comparative sentences', refer to:

· R v John Bare Maetia (Unrep. Criminal Case No. 32 of 1992; Muria ACJ); &

· R v Jang Rang, Lim Kuen Kuen Chik, Lim Loi Fatt, Lim Kuen Pao, Lim Kuen Seng, Hung Nang Shiong & Cheng Sivee Ming (Unrep. Criminal Case Nos. 11 & 12 of 1995; Palmer J).

[L] Fisheries Act

For 'comparative sentences', refer to:

· Ngina v R [1987] SILR 35;

· R v Jang Rang, Lim Kuen Kuen Chik, Lim Loi Fatt, Lim Kuen Pao, Lim Kuen Seng, Hung Nang Shiong & Cheng Sivee Ming (Unrep. Criminal Case Nos. 11 & 12 of 1995; Palmer J);

· R v Heu Fu – You (Unrep. Criminal Case No. 7 of 1983; Daly CJ);

· R v Wu Chiang Ching (Unrep. Criminal Case No. 25 of 1987; Ward CJ);

· R v Wong Chin Kwee, Approaching International Inc. & Nestor Bele (trading as Resource Development Agency) (Unrep. Criminal Case No. 3 of 1983; Daly CJ); &

· R v Sheu Ming Jiee (Unrep. Criminal Case No. 11 of 1982; Commissioner Crome).

[M] Forest Resources & Timber Utilisation Act

For a 'comparative sentence', refer to R v JP Enterprise Limited (Unrep. Criminal Case No. 298 of 1999; Palmer J).

[N] Passports Act

For 'comparative sentences', refer to:

· Morris Bock v R (Unrep. Criminal Case No. 17 of 1993; Palmer J);

· R v Rosemary Gillespie (Unrep. Criminal Case No. 304 of 1993; Palmer J); &

· R v Francis Kutuna (Unrep. Criminal Case No. 61 of 1993; Palmer J).

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