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Laui v Director of Public Prosecutions [1987] SBHC 4; HC-CRAC 011 of 1987 (23 February 1987)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 11 of 1987

AUGUSTINE LAUI

-v-

DIRECTOR OF PUBLIC PROSECUTIONS

Hearing 20^th February 1987
Judgment 23^rd February 1987

K. Brown for the appellant
T. Kama for the respondent

WARD C.J.: This is an appeal against the sentence imposed by the Principal Magistrate (Central) on 9.2.87. The appellant pleaded guilty to an offence of common assault and one of demanding with menaces and was sentenced to 6 months sand 18 months imprisonment respectively to be served consecutively.

In summary the grounds of appeal are -

1. That the offences arose out of the same incident and should nut have attracted consecutive sentence.

2. That the magistrate failed to consider the total sentences.

3. They were manifestly excessive.

The facts of the case were that the appellant was aggrieved because the victim, a police officer, had reported a relative of his and was alleged to have hit him. The appellant slapped the victim and demanded compensation saying that, if it was not paid, he would kill him and his father. The prosecution have been unable to say whether the threat was to kill or to hit the victim and his father but it clearly frightened the father enough to hand over $40.

The appellant had been before the courts on 5 previous occasions with convictions for affray in 1981, drunk and disorderly in 1982 and three of common assault in January 1986 for which he was fined.

The learned magistrate gave a lengthy and helpful sentencing judgment. In it he accepted that the case was different from the recent cases of such demands because the appellant was unarmed and it was a "one to one" situation.

He continued:

"However, the defendant did go looking for the complainant, having found him his demand was based upon the fact that Filia, a police officer, had been instrumental in the arrest of a person suspected of committing a serious crime. This aspect more than any other gives great concern to this court. A Police officer's duty is to bring those suspected of committing offences before the Courts. Their job is difficult enough; with custom ties and wantok relationships, this is even more difficult. Police Officers must uphold the laws of the Solomon Islands and execute their powers and duties of their office honestly, faithfully, diligently, without fear or favour to any person, and without malice or illwill [sic] to any person. If they are subjected to this kind of pressure by demands or assaults for doing their duty, law and order will not be maintained and the whole administration of justice will topple. Only a few weeks ago this court stated:-

"Anyone who obstructs or interferes with the Police will lose their liberty."

This was in relation to a Police officer acting in the course of his duty but the principle is the same of indirect interference or obstruction such as this case."

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 them consecutive sentences are appropriate subject to the overall total.

The test of a single transaction is not just 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 a should properly be made concurrent.

In this case, the two offences were closely related. Council the respondent has sought to persuade the court that the assault came first and was a more personal offence followed by the demanding with menaces which, because of the abuse of custom, was a more public one. Although the argument is ingenious, I find that distinction artificial and inappropriate to the facts of this case.

The facts show that the assault took place as a reaction to the arrest the officer had made and, at that time, no mention was made of compensation. However the demand followed almost immediately and was accompanied day threats of further violence. To the victim, the threats must have appeared a continuation of the overall events. They derived much of their malevolence, I have no doubt, from the assault that had just taken place and included the clear implication that there was "more where that came from". This clearly constitutes a single transaction and the appropriate sentences should be concurrent.

Whilst this may cover much of the second ground of appeal, I must still consider the total sentence.

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 have been 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.

Counsel for the appellant has urged that this sentence was manifestly excessive because the magistrate placed undue emphasis on the fact that the victim was an off duty police officer and gave too little credit for the nature of the violence and the mitigating circumstances.

It is clear from the record that the magistrate did take all these matters into account and imposed what he considered the appropriate penalty. I attach little weight to the fact that he made no specific reference to the totality of sentence. Whilst it is wise and helpful for the magistrate to list briefly the factors he has allowed to influence the determination of sentence, it is no part of his duty and would be an intolerable burden to expect him to list all the principles on which he has acted.

In this case, no doubt because of the need to explain the approach the courts will henceforth make to offences of this nature, the learned magistrate gave a clear and careful judgment. This court endorses all he has said. Whilst it is correct this policeman was off duty, the offences arose as a direct consequence of his work as a policeman. The courts will always ensure that the police are protected in the proper execution of their duties and this protection must continue equally whether they are on or off duty.

The sentence for such an offence is clearly not manifestly excessive and had it not been for the first ground, I should not have interfered.

However the appeal is allowed to the extent that the sentences will be served concurrently giving a total of 18 months imprisonment.

(F.G.R. Ward)
CHIEF JUSTICE