Hearing: 30th
September 2001
Judgment: 2nd
November 2001
I. Kako
for the Appellant
R. B.
Talasasa for the Crown
JUDGMENT
(KABUI, J):
By Petition filed on 17th September 2001, the Appellant appealed
to the High Court against the sentence imposed against him by the Central
Magistrate
Court in Honiara on 3rd September 2001. The sentence
imposed is a custodial one for the term of 9 months imprisonment. The
offence with which
the appellant was charged was simple larceny contrary to
section 261 of the Penal Code Act (Cap 26). The appellant pleaded guilty to
the charge and he was duly convicted on that charge on his own plea of
guilty.
The Facts
On 24th September
1, the appellant with others were drinking at the complaintlaint�s house at Panatina. The time was about 11:00 pm in
the night. At about 2:00 am in the
morning, the complainant retired to bed leaving the others and the appellant
to continue
drinking in his absence. When the complainant .woke up in the
early morning he discovered that his CD player with two speakers
were
missing from his house. He did not know who removed them. Having been told
by a member of the College security service
where to find the appellant, the
complainant went and confronted the appellant about his missing property.
Thereupon,
the appellant admitted that it was him who removed the CD player
with its two speakers. The matter was reported to the Police
at Naha Police
who arrested the appellant and charged him with larceny. He was then
released on bail to appear in Court
at a later date.
p class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Sentence
The sentence imposed by the learned Magistrate obviously reflects the deterrent elemenlement of sentencing.
It was imposed
after the learned Magistrate had taken into consideration all
the mitigation factors advanced by the appellant. Counsel for
the appellant,
Mr. Kako, argued that the sentence of 9 months imprisonment in view of the
facts of the case was an over
- reaction by the learned Magistrate. Mr. Kako
placed emphasis upon the fact that the stolen items had been recovered and
returned to the complainant and the fact that the appellant confessed
immediately to his wrong - doing when confronted
by the complainant. He also
stressed the fact that the appellant had a family and a job as a security
officer. He also
pointed out that the appellant was a first offender.
Counsel for the Crown, Mr. Talasasa conceded that the sentence of 9 months
was on the high side and should be reduced after apposing the appeal. There
is one aspect of this appeal which causes
me concern. In the brief facts
filed by the Prosecutor, no mention was made of the fact that the stolen
items had been
recovered. The facts only showed that only the CD deck has
been recovered. The information that all items had been returned
to the
owner came from the appellant himself unconfirmed by the Prosecutor. The
information should have been confirmed
by the Prosecutor before sentence was
passed to enable the learned Magistrate to act on true facts. However, it is
too
late now and the appellant must be given the benefit of that doubt in
this appeal. When I read the facts filed in the Magistrate
Court, they
suggest to me that the appellant was an invitee. At least, he was not told
to leave. Somehow, after the other
person
left, the complainant retired to bed leaving the appellant, John Bole and
others drinking. The appellant did not
say how he took the stolen items and
how and why he did what he did nor did he say where he kept them. But
obviously
he had a guilty conscience for when he was confronted, he admitted
the offence. The reason speaks for itself. He was a first
offender. He must
have felt that he was silly to have stolen the complainant's property
because he had just been the
guest of the complainant in the complainant's
house. Stealing is an evil and a thief stinks in the eyes of the community.
He is a threat to society and his neighbours. At the same time, no one is
perfect but offenders must be punished all the
same for offences they commit
against society. When I read section 261(1) of the Penal Code Act, I see
that it imposes a penalty of 5 years imprisonment for simple larceny. So
simple larceny is a fairly serious
offence. However, section 24(2) of the
Penal Code Act does allow a term of imprisonment imposed by the Court to run
for a shorter term than the maximum term of imprisonment
prescribed by the
Act. This is why the learned Magistrate imposed only 9 months imprisonment
for an offence that carries
a maximum term of imprisonment for 5 years. I
will not disturb the 9 months imprisonment term imposed by the learned
Magistrate. I will instead suspend it for 2 years under section 44(1) of the
Penal Code Act. I think the appellant does have a chance to mend his ways
and not to re-offend in the future. I order that the sentence
of 9 months
imposed by the learned Magistrate on
3rd
September 2001 be suspended with effect from today. The appellant will be
released forthwith from prison as soon as is
convenient to him. Since the
appellant is not in the dock and is represented by Counsel, I would ask his
Counsel to explain
the effect of section 44 (6) of the Penal Code to the
appellant.
F.
O.
KABUI
JUDGE
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2001/77.html
