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Likilua and Kokolobu v Reginam [1989] SBHC 10; [1988-1989] SILR 148 (10 November 1989)

[1988-1989] SILR 148

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 18 of 1989

JOEL LIKILUA and ALLEN KOKOLOBU

v

REGINAM

High Court of Solomon Islands
(Ward C.J.)
Criminal Appeal Case No. 18 of 1989

Hearing: 8 November 1989
Judgment: 10 November 1989

Appeal against sentence - first offender - newly arrived in Honiara - circumstances in which suspended sentence may be appropriate

Facts:

The Appellants pleaded guilty in the Magistrates’ Court to charges of breaking into a warehouse and stealing shark fins. Allen Kokolobu faced two charges whilst Joel Likilua faced one charge. Kokolobu was sentenced to terms of twelve months and eighteen months imprisonment consecutive and Likilua to twelve months imprisonment. Both appealed against sentence on the ground that the learned Magistrate gave no or insufficient credit for the Appellants’ previous good characters, their guilty plea and the fact that most of the stolen property was recovered. Kokolobu appealed further on the ground that the totality of the sentences was excessive.

Held:

(1) Having succeeded in his first offence Kokolobu was willing to try again and in so doing seduced another to commit a crime after a careful plan to break into the warehouse and steal therein. His recruitment of the first Appellant showed an attitude to the offence which made a suspended sentence inappropriate. The total sentence of thirty months for both offences was not manifestly excessive.

(2) Joel Likilua, being a newcomer to Honiara and being asked to help out in committing the offence was in a different position. The sentence of twelve months imprisonment was proper but since he is a first offender who had recently arrived in Honiara it may be an effective penalty to suspend part of that sentence to ensure that he does not re-offend. Thus six months of the sentence was suspended for one year.

(3) There is no great value in comparison of similar cases. Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide.

Appeal allowed to the extent that six months of the twelve months’ imprisonment for Joel Likilua was suspended for one year.

A. Radclyffe for Appellants
A. Rose for the Respondent

WARD CJ: On 9 October 1989 the Appellant appeared at Central Magistrates’ Court. Allen Kokolobu was charged with breaking into the warehouse of Johnson Kengalu and stealing shark fins on 22 September and 29 September. Joel Likilua was charged with the offence on 29 September only. Both pleaded guilty and Kokolobu was sentenced to twelve months and eighteen months imprisonment consecutive and Likilua to twelve months imprisonment.

They both appeal against these sentences on the ground that the learned Magistrate gave no or insufficient credit for the Appellants’ previous good characters, their guilty pleas and the fact most of the stolen property was recovered. Kokolobu has the additional ground that the totality of the sentence is excessive.

Mr Radclyffe for the Appellants has cited a number of other cases decided at the Central Magistrates Court in the last few months and urges that these sentences are too harsh by comparison. Whilst I accept that the sentences in the other cases appear to be a little more lenient than these, I do not feel there is any great value in such comparisons between cases. Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide.

Mr Radclyff’s main argument was that the Magistrate gave insufficient credit for the matters stated in the grounds of appeal. When sentencing the Magistrate said -

“I treat both of you as first offenders and entitled to leniency. I also give credit for pleas of guilty and your ready admission to police ....... Despite these factors in mitigation however I feel these offences are so serious as to merit a custodial sentence. While it is true that Joel in particular is new to town and was led into trouble by Allan, both defendants are mature men who should know better”

Mr Radclyffe suggests that if, as the Magistrate says, he made allowance for these matters, the original sentence must have been substantially longer and is out of line with similar earlier cases. I am afraid I cannot agree. Offences of breaking and entering are prevalent and serious. The stealing of marine products from such places is particularly common because of the ease with which such goods are re-sold.

As far as Allen is concerned he was a first offender on 22 September. Had he stopped at that offence, the twelve months sentence would have been appropriate and the court may have considered suspension.

However the subsequent offence put the whole case into a different category. Having succeeded on the first he was willing to try again. The offence was planned carefully and in order to carry out the plan, he was willing to seduce another man into crime. He picked someone who had only recently come to Honiara from an outer island. I regard that as an extremely serious aggravation of the offence. Eighteen months for that offence was far from excessive and his recruitment of the second appellant shows an attitude to the offence that makes it inappropriate to suspend the sentence.

Looking at the total sentence of thirty months, I would agree it is a substantial term for a man in his personal position with a job and married with a child but I do not feel it is manifestly excessive. As such this court will not interfere.

The appeal by the first appellant is dismissed.

The second appellant, as I have already pointed out is in a different position. He had just arrived in Honiara and was asked by the first appellant to help. As a man of 29 years of age, I have no doubt he knew perfectly well how serious was the course of conduct on which he was embarking and I have little sympathy for someone who succumbs so soon. The sentence of twelve months imprisonment is perfectly proper in his case.

The next question must be whether the sentence should be suspended. In his case, as a first offender who has recently arrived in Honiara, I feel it may be an effective penalty to suspend part of that sentence to ensure he does not re-offend.

The appeal is allowed to the extent that six months of the sentence will be suspended for one year.