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Elima v Regina 1 [2005] SBCA 7; CA-CRAC 023 of 2004 (4 August 2005)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT

On 5th April 2004 the appellant pleaded guilty to the offence of larceny by a clerk contrary to section 273 (a) (i) of the Penal Code. He was at the relevant time employed as a clerk by the Australia and New Zealand Bank. It seems that he was being pressed and indeed threatened by his creditors to repay money to them. Between 21 October 2002 and 15 April 2003 he caused moneys to be transferred from accounts with the Bank of Kevin Cheung into an account in the name of the appellant’s son. Subsequently the appellant caused the moneys to be paid out of the son’s account to him or for his benefit.

The Magistrate on 8th April 2004 sentenced the appellant to 4 years imprisonment. His appeal to the High Court against that sentence was dismissed by Brown J on 1 November 2004 without the prosecution being called on.

In the present case errors of law were alleged by the appellant which if made out could lead to the Court reviewing the sentences. The learned Judge rejected the contention that the Magistrate had misdirected himself in law by failing to attach any proper weight to the mitigating factors advanced behalf of the Appellant.

The Appellant is right in saying that mitigating factors have to be taken into account.

The first ground is that the Magistrate said that he “had lost his job because of the offences he committed. He has no excuse for that. Now that his liberty must be forfeited.” This it is said shows that the Magistrate did not take into account the fact that he had lost his job which can be a mitigating factor.

However, the Magistrate lists this as one of the factors to be taken into account. We read what he said as meaning that the offence was so serious for an employee in the appellant’s position that he had to go to prison: there was no question of any lesser punishment. We agree with that but even though he does not specifically say that losing his job was a mitigating factor we do not read it as meaning that when he calculated 4½ years as being the sentence for a crime (or rather several crimes) for which the maximum penalty is 14 years he excluded the fact that he had lost his job from the matters to be taken into account.

Next it is submitted that the Magistrate only considered that he had no previous criminal convictions and did not take into account his general good character and community involvement. We do not so read his judgment. He referred to what he did at his church and Social Club as speaking well of his involvement and standing in the community, and said “Accused has good standing background with no previous convictions.” He plainly had regard to both.

Than it is said that the Magistrate attached no weight to the fact that the appellant wanted and intended to repay. The Magistrate clearly thought that was not a realistic promise or hope in view of the amount involved. There was material on which he could reach that view even without rejecting his wish to pay.

Finally it is said that the Magistrate failed adequately to take account of his plea of guilty. Objection is taken to the words “I consider and give credit for the fact that the accused has pleaded guilty”. That in our view is not any indication that the Magistrate failed to give weight to the plea. On the contrary he recognized that the plea avoided “tedious trial and loss of resources and funds from the State.”

We do not consider that there was here any misdirection at to mitigation which required the Judge or this Court to interfere with the sentence. The sentence may be said to be towards the top of the range when all the mitigating factors are taken into account but it is within the acceptable range. In approving the approach of the Magistrate the Judge made no error. The appeal must, therefore, be dismissed

President, SI Court of Appeal

Judge of Appeal

Judge of Appeal