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Cawa v Regina [2013] SBCA 8; Criminal Appeal Case 36 of 2012 (26 April 2013)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

[1] The appellant seeks an extension of time to appeal and leave to appeal against sentence both of which are granted. Counsel for the Crown properly, in view of the nature of the ground of appeal, did not oppose the applications.

[2] In the High Court, the appellant pleaded guilty to manslaughter and was sentenced on 29 November 2012. He was, at the time, already serving twelve life sentences and was sentenced by the learned judge to 9 years imprisonment for manslaughter to be served consecutively to the sentences he was already serving.

[3] The appellant does not challenge the length of the term of imprisonment. He appeals on the sole ground that "the sentence of 9 years to be served consecutively to the life sentences should be served concurrently with the life sentences".

[4] The learned judge made a thorough analysis of the factors relevant to his determination of the appropriate length of sentence. He gave no reason for making this sentence consecutive to the previous sentences and would appear to have been following the provisions of section 24 (4) of the Penal Code:

"(4) 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 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 it shall be executed concurrently with the former sentence or any part thereof."

[5] The submission of the appellant is simply stated. Whilst subsection 4 requires the court usually to order that a determinate sentence for a subsequent offence shall be served consecutively to a sentence the prisoner is currently serving, it cannot apply to a man who has already been ordered to serve a sentence of life imprisonment because, although he may be released from prison during his lifetime, he remains subject to the life sentence, albeit under licence, for the remainder of his life.

[6] The issue was dealt with in the case of R v Foy [1962] 1 WLR 609 in which the appellant was sentenced to 14 years imprisonment consecutive to a sentence of life imprisonment which he was then serving. The Court of Appeal dismissed his appeal against conviction and the appeal against sentence was abandoned so Lord Parker CJ delivered his judgment as a Practice Note in which he explained:

"The appeal against sentence has been abandoned, and therefore there is no jurisdiction in this court to substitute any sentence, but the court would like to say that they are quite satisfied that the sentence which the judge purported to pass in the present case was not a valid sentence. Life imprisonment means imprisonment for life. No doubt many people come out while they are still alive, but when they do come out it is only on licence, and the sentence of life imprisonment remains upon them until they die. Accordingly, if the court makes any period of years consecutive to life imprisonment, the court is passing a sentence which is no sentence at all, in that it cannot operate until the sentenced man dies.

The court feels that, although they cannot substitute any sentence in this case, it is right for them to say that the sentence passed was wholly invalid, and that the proper sentence in this case would have been one of 14 years' imprisonment concurrent with the sentence of life imprisonment."

[7] The New South Wales case of Farlow [1979] 2 A Crim R 266,268 was an appeal from a sentence of two years and six months imprisonment ordered to be served consecutively to a life sentence. In the Court of Criminal Appeal, Nagle CJ adopted the reasoning of Lord Parker in Foy's case. It encapsulated, he said, his own reasoning that:

"Unaided by any authority, I find compelling reasons to conclude that section 34 of the Prisons Act cannot possibly contemplate the imposition of a term of imprisonment which, to use the words of the section is "to be served after" a term of penal servitude for life. ... [F]rom a practical point of view there is little, if any, difference between "penal servitude" and "imprisonment. Be that as it may, the fact is that the duration of the term of the sentence has not been altered and the period prescribed is "life". As it is obviously impossible to serve a term of imprisonment cumulatively on a life sentence, any attempt to apply section 34 to the circumstances of the appellant results in an absurdity."

[8] Relying on the maxim that the law does not compel a man to do that which he cannot possibly perform (lex non cogit ad impossibilitia) and the statements by Lord Coleridge in R v Clarence [1888] UKLawRpKQB 175; [1888] 22 QBD 23,65 that, "in such a matter as the construction of a statute, if the apparent logical construction of its language leads to results which it is impossible to believe that those who framed or those who passed the statute contemplated, and from which one's own judgment recoils, there is in my opinion good reason for believing that the construction which leads to such results cannot be the true construction of the statute", the New South Wales Court allowed the appeal and substituted a sentence of two years and six months to run concurrently with the sentence the appellant was serving.

[9] We accept the logic of these authorities. Section 24 (4) requires that the later sentence "shall be executed "after the expiration of the former sentence". We reject any suggestion that a determinate sentence ordered to be served consecutively to a life sentence will come into effect if and when the prisoner is released from the life sentence on licence. The reference to the expiration of the former sentence does not and cannot be considered to include such a release during an indeterminate sentence.

[10] The position in England has changed since Foy's case and judges there can order a minimum term the prisoner must serve before release on licence. There is no such power in our law. However, unlike the position in Farlow's case, the answer does not lie in straining the wording of the statute because any judge who is required to pass a determinate sentence on a prisoner who has previously been sentenced to life imprisonment is given the discretion by subsection (4) to direct that it "shall be executed concurrently with the former sentence or any part thereof". Logic demands that in any case where the former sentence was life imprisonment, the sentencing court should order that the subsequent term be served concurrently. Failure to exercise the court's discretion in that way will mean that the court is purporting to pass a sentence which can never be served and is therefore, in the words of Lord Parker, no sentence at all.

[11] We allow the appeal, quash the sentence and substitute a sentence of nine years imprisonment to be served concurrently with the appellant's current sentences.

[12] Before leaving this appeal we would like to acknowledge the concern expressed to us that, once a prisoner is sentenced to life imprisonment, he may feel that, if he commits any other offence in prison or outside, there is no effective way he can be sentenced because it would add nothing in real terms to his life sentence. We would suggest that problem is more apparent than real. Anyone serving a life sentence knows that, sooner or later, his case will come before the Parole Board to recommend his date of release on licence. Without wishing to trespass on the Board's independence, we would venture to suggest that if he has committed other offences whilst a serving or escaped prisoner, the Board is likely to delay consideration of his release. After he is released on licence, any offence could result in a recommendation that his licence be revoked and he be returned to prison to continue to serve the life sentence.

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Justice Edwin Goldsbrough
President

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Sir Albert Palmer, JA
Member

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Sir Gordon Ward, JA
Member