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Sau v R [1982] SBHC 22; [1982] SILR 65 (8 June 1982)

[1982] SILR 65

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 7 of 1982

SAU

v

R

High Court of Solomon Islands
(Daly C.J.)
Criminal Appeal Case No.7 of 1982

8th June 1982

Criminal Case Judgment - time for and contents of - magistrate - entitled to form view of accused - sentence consecutive and concurrent - section 150(1) C.P.C.

Facts:

The Appellant was convicted on three counts of fraudulent disposal of money and five counts of fraudulent falsification of accounts. He was acquitted on 18 other counts. On 30th March 1982 the magistrate announced he found the accused guilty on the eight counts and said he would deliver judgment the next day. This he did giving full reasons. During the course of the judgment, the Magistrate said "It became apparent from an early stage in the trial that the Defendant was a scoundrel." The appellant was sentenced to six months on each of the disposal counts and three months on each of the falsification counts making a total of thirty three months imprisonment. The appellant appealed against both conviction and sentence.

Held:

On appeal against conviction (1) section 150 (1) Criminal Procedure Code permitted a short form judgment followed by full reasons. In this case in fact as the trial continued there was no separate judgment given and no breach of the C.P.C. (2) the magistrate was entitled to consider the appellant a scoundrel from an early stage if the evidence warranted it. By so doing the magistrate was not necessarily forming a view of the appellant’s guilt. In this case the comment was proper.

On appeal against sentence: as the fraudulent falsification counts related to attempts to cover up the disposal of money referred to in one disposal count, all four counts related to one transaction and the sentences on those counts should be concurrent with each other and concurrent with the sentence on the related disposal count. Sentence therefore reduced to a total of eighteen months.

For Appellant: A. Radclyffe
For Respondent: F. Mwanesalua

Daly CJ: This appellant Aubrey SAU appeals against convictions and sentences recorded by a Principal Magistrate sitting at Honiara on 30th March, 1982. The Appellant was convicted of three offences of fraudulent disposal of money, contrary to section 266 (c) (i) of the Penal Code (Counts 10, 16 and 17) and five counts of fraudulent falsification of accounts contrary to section 299 (1) of the Penal Code (Counts 11 to 15). On each of the three disposal counts the appellant was sentenced to imprisonment for six months and on each of the fraudulent falsification counts, to sentences of three months imprisonment. All these sentences were ordered to be served consecutively making a total sentence of thirty-three months imprisonment.

This is yet another case of personal enrichment by breach of trust. The appellant was a clerk with Central Islands Province. In the course of his work he received monies for which he had to account to his employer. On three occasions he was found to be short of money when enquiries were made. One shortage was of the sum of $137; another shortage was $126.80 and the third was for $186.26. These were the basis for the fraudulent disposal counts.

It was not disputed by the defence during the trial that these sums were missing but various explanations, as alternatives to misappropriation by the appellant, were offered. In the case of the $137.00 it was said that it was lent by the appellant to workers who were unpaid; in the case of the $126.80 that it had been taken by another employee and as at the $186.26 that it had been taken of the officer of the province who came to collect the books of account.

The false accounting charges (counts 11 to 15 inclusive) relate to documents which the prosecution say were falsified by the appellant in an endeavour to cover up the disappearance of the $186.26 (Count 17). For the sake of completeness I should add that the Appellant was in fact originally arraigned on a total of 26 counts. He was found to have case to answer in respect of three and acquitted of the remainder other than those counts to which reference has already been made. 42 witnesses were called by the prosecution and the trial took a considerable number of days and involved the court sitting in Rennell.

The Appeal against convictions is on the basis of two grounds, one of which can be disposed of shortly. The learned Magistrate announced on the 30th March 1982 that he had no doubt about the guilt of the accused on counts 10 to 17 and stated that the court would deliver judgment the next day. The following day a full and detailed judgment was read. This is said to be in breach of section 151 of the C.P.C which requires certain matters to be contained in the judgment. It is said that the announcement on the 30th March 1982 was the judgment and that this was therefore defective in its lack of the specified contents. It is accepted that the judgment subsequently read contained the matters required by section 151. However section 150 (1) of the CPC provides as follows:

"(1) The judgment in every trial in any criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of such judgment shall be explained, in open court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties and their advocates, if any:

Provided that the whole judgment shall be read out by the presiding Judge or Magistrate if he is requested so to do either by the prosecution or the defence."

This subsection clearly contemplates that a short form of decision may be given followed by a full judgment given even subsequent to the termination of the trial. However in this case it is quite clear that the trial did not terminate but continued with the learned magistrate announcing his findings and then going on to give his reasons for them at the adjourned hearing on the following day. The fact that he did not give his reasons immediately after he announced his findings is a matter, to my mind, of no substance whatsoever.

The other ground upon which it is sought to impugn the convictions is that in the course of this judgment the learned magistrate said "It became apparent from an early stage in the trial that the Defendant was a scoundrel" The passage continues "Mr Strang (who was then acting for the appellant) conceded early in the proceedings that the endorsements on the back of the 33 cheques relating to count 26 had been the work of the Defendant". Counsel submits that this indicates that before hearing the witnesses whose evidence supported the counts upon which convictions were recorded, the learned magistrate had formed an adverse view of the Appellant. But what is wrong with that? If the evidence revealed (and it is not suggested that it did not) that the Appellant was, to quote the magistrate, "a scoundrel" should he shut his mind to that fact? It would not only be artificial to ask him to do so but also would result in his failing to consider in his assessment of the case what is, on any view, a relevant matter. The fallacy, if I may respectfully say so, in the submission is that it postulates that to view the appellant as a scoundrel is the same as saying he was guilty of the criminal conduct charged. That fallacy is demonstrated when one observes that the learned magistrate found no case to answer or decided to acquit on the majority of charges including count 26.

The approach of the magistrate to the evidence was if anything, weighted in favour of the appellant. He stated "Because of the way the trial developed I decided very early in the proceedings that I would only convict this defendant where there was substantial independent corroborative evidence to support the charge." Later, in relation to the counts upon which convictions were recorded, he said "there is overwhelming corroborative evidence, evidence supplied by the Defendant himself in the form of his books of account and receipts covering the period of his stewardship of West Rennell." The learned Magistrate carefully considered the defences raised and rejected them. On these counts the evidence was strong and, in my judgment, any tribunal properly directed would have inevitably reached the same conclusions.

It therefore follows that, even were I to accept that the use of that sentence in the judgment was criticisable, that this would be a case for the application of the proviso to section 292(2) of the C.P.C as no substantial miscarriage of justice had occurred. The appeal against conviction is therefore dismissed.

The appeal against sentence also involves some close analysis of the words used by the learned magistrate in referring to a conviction recorded against the appellant. Taking the words in context, I do not consider the analysis reveals a wrong approach to that conviction.

The real substance of this part of the appeal is that the total period of thirty-three months is excessive having regard to the lapse of time between commission of the offences and convictions which is two years and having regard to other similar cases. It is also said that the ordering of all sentences to run consecutively is wrong in principle.

Leaving aside the totality of the sentence imposed (which the learned magistrate clearly considered to be appropriate) I am of the view that there is force in the point concerning consecutive sentences. As I have indicated counts 11 to 15 relate to the attempts to cover up the disappearance of the money charged as having been fraudulently disposed of in Count 17. It would seem therefore that this was all part and parcel of the same criminal conduct. The Respondent concedes that this was all the same transaction. In those circumstances one course would be for the sentences of three months on count 11 to 15 to be made concurrent with each other and concurrent with the sentence of six months on count 17. That is the course I propose to adopt. The sentences on counts 10, 16 and 17 will remain consecutive thus resulting in a total period of 18 months. The resulting totality of the sentence cannot, in my judgment, be regarded as anything but on the generous side.

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 may 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. Both of these may change with time and with individual cases and, unless a sentence is demonstrably wrong in principle, then sentences which may be some distance apart will be upheld in this court. Finally let me congratulate the trial magistrate for the thorough and careful way he approached the evidence in what, on the record testifies, must have been a long and difficult trial.

ORDER Appeal against conviction dismissed. Appeal against sentence on counts 11 to 15 upheld to the extent that the sentence of imprisonment on those counts are to run concurrent with each other and concurrent with the sentence on count 17. Appeal against sentence otherwise dismissed. Total sentence to be served 18 months.