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Hou v Regina [2005] SBCA 9; CA-CRAC 007 of 2005 (4 August 2005)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Brown J)

COURT FILE NUMBER: Criminal Appeal No 7 of 2005 (On Appeal from High Court Criminal Case No 7 of 2005)

DATE OF HEARING: Monday 25^th July 2005

DATE OF JUDGMENT: Thursday 4^th August 2005

THE COURT: Lord Slynn of Hadley P, Adams & Goldsbrough JA.

PARTIES: JEFFREY HOU

(Appellant)

-V-

REGINA

(Respondent)

ADVOCATES: Appellant: Martin Anders

Respondent: Ronald Talasasa

ALLOWED/DISMISSED: Appeal Dismissed.

PAGES: (1-6)

JUDGMENT

This is an appeal from an order of Brown, J. dismissing an appeal from the Magistrate’s Court against sentences imposed by the court in respect of four charges to which the appellant had pleaded guilty.

The charges were these:

(a) Simple larceny contrary to section 261 of the Penal Code on 18 April 2003.

What happened was that the Appellant took and drank cups of draught beer at the Mendana Kitano Hotel and refused to pay for it. He made an abusive and what seems like a drunken threat to the barman and then wandered round the tables continuing to take cups of beer off the tables and drinking it. He was said to have drunk 10 cups in all.

(b) Common assault contrary to section 244 of the Penal Code on 18^th April 2003. This followed shortly after he had drunk the beer. The Security Officer Robert Faka saw him punching a customer in the bar and went over to pull the appellant away. The appellant punched with a closed fist on Mr. Faka’s left ear causing strong pain and causing him to fall to the ground. The appellant said “bae mi tallem Rasta and Maelanga about this wan”.

(c) Common Assault contrary to Section 244 of the Penal Code on 19 April 2003.

(d) Demanding money with menaces contrary to Section 295 of the Penal Code.

These occurred on the morning of 19 April 2003 when the Security Officer Faka was at the Central Hospital Bus Stop. The Appellant approached him and told him to come to the Police Station where one Maelanga was waiting for him. This frightened the Security Officer who got into a taxi and went to the Rove Police Barracks. There the appellant said “you smart too much for punchim me, this taem bae you kaikaim shit blong every woman long town”. Believing, wrongly it seems, that the Security Officer had punched him the previous evening the appellant demanded $500.00 compensation. Mr. Faka was afraid and gave him $50.00, all he had in his wallet and told him to come to the Hotel at 5pm to get the rest of the money. Without warning he hit Mr. Faka with a closed fist on the face below his left eye Mr. Faka went to the hotel and the appellant came there at 5pm when Mr. Faka told him to go and see Inspector Na’agi at the Police Station.

He sentenced the Appellant to 2 months in each of the first three charges and to 18 months on the fourth each to be consecutive. That made a total sentence of 2 years. The maximum sentence for the first and fourth charges was 5 years on each; on the second and third charges 12 months on each.

The learned Judge on 9 March 2005 dismissed the appeal. The appellant submits to this court, first, that all these sentences should have been made concurrent and alternatively some of them should have been made concurrent. They should be treated as a single transaction. He relies on what was said by Ward CJ in Stanley Bade v R [1988-1989] SILR 121 and in Augustine Laui v DPP [1987] SBHC 4; unrep. Criminal Case No. 11 of 1987 per Ward CJ at p 2 and in particular in the later case on the following passage.

“The test of a single transaction is not just a matter of time but whether the offences form part of a single attack on some other person’s right........ the sentences for a series of assaults on the same person, even though spread over a lengthy period of time should properly be made concurrent”.

The fact that all offences occur within a few hours is not necessarily enough to make them a single transaction. They have to be read as having a relevant connection which makes it just to regard them as one transaction. We do not think that the magistrate erred in regarding offences 3 and 4 as being separate from each other and as being separate from what happened in the 18^th April. We have, however, come to the conclusion that correctly applying the principle of what is capable of being a single transaction the magistrate and the judge should have regarded the offence of drinking without paying and hitting the security man, both in a short time of each other and plainly in a drunken state, as being part of one single transaction or event. If he had done this he would have made the sentences concurrent. To that extent we allow the appeal and we make the sentences of larceny and common assault on the 18^th April in the Bar concurrent.

If that is done we do not consider that the total sentence of 22 months is out of proportion to the overall circumstances or is inappropriate. The threat of Maelanga on the 19^th following the reference to Rasta and Maelanga on 18^th is a serious one. The second assault was for an entirely different reason from the first. The appellant was a Police Officer and the threats as well as his conduct on the assaults were serious. These offences were committed at a time of great tension in the Community and the magistrate was fully entitled to have regard to that when considering the menaces as well as the assaults.

The notes for and of the hearing show that he had regard to the plea of guilty, to the effect on the man’s career and to the fact that the events had occurred some time before the date of sentencing.

He did not give detailed reasons but his reasons appear clearly from the notes particularly in regard to mitigation. The seriousness of the main offence speaks for itself.

In our view the individual sentences for demanding money with menaces and the assault on 19^th April and (subject to their being concurrent) for the assault and larceny on the 18^th were fully justified.

Subject to the sentences of 2 months each for the larceny and the assault on 18^th April being made concurrent these appeals are dismissed.