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Bennett v Regina [2005] SBHC 33; HCSI-CRC 242 of 2004 (1 February 2005)

HCSI-CRC 242 of 2004

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 242 of 2004

RITA BENNETT AND JEFFREY PASIO

-v-

REGINA

(Mwanesalua J)

Date of Hearing: 29th October 2004
Date of Judgment: 1st February 2005

Ms. L. Kershaw for the Appellants
S. Balea for the Respondent

JUDGMENT

Mwanesalua, J.

On 1st April 2003, the Appellants took vehicle Registered No. G2579 from Noro to Munda. The Appellants were in possession and were using the vehicle on the road from that date until the police retrieved it from them. The Appellants were charged with the theft of the vehicle under Section 261 of the Penal Code [cap.26] (the Code). The Appellants were arraigned before the Magistrates Court in Gizo on 5th February 2004. The Appellants pleaded not guilty to the charges and were tried. On 9th February 2004, the Appellants were found guilty as charged and were convicted. The Appellants were each sentenced to 2 years imprisonment.

The Appeal Grounds

The Appellants filed their notice of appeal against conviction and sentence on 20th February 2004 and later amended by their counsel on 28th February 2004. There were 8 grounds of appeal in the amended notice of appeal. However, counsel for the Appellants in the appeal, Ms. Kershaw, indicated during argument, that the Appellants would only pursue the following 3 grounds of appeal for purposes of their appeal:

1. That the conviction was entered against the weight of evidence available before the Learned Magistrate;

2. That the Learned Magistrate misdirected himself on the application of the defence available under Section 8 of the Code; and

3. That the sentence of 2 years imprisonment, when considering the whole circumstances of the case and the mitigating factors is excessive.

The Appellant’s case

Counsel for the Appellants made two main arguments against the Appellants' conviction. First, that the Prosecution failed to prove all the elements of stealing as set out in section 258(1) of the Code, and accordingly, the learned Magistrate was wrong in convicting the Appellants of the offence of simple larceny under Section 261 of the Code; and second, that the learned Magistrate was wrong in rejecting the Appellants’ defence of claim of right under Section 8 of the Code.

The Respondent's case

The Respondent supported the convictions against the Appellants. Counsel for the Respondent, Mr. Balea, argued that the Learned Magistrate was entitled to accept facts proved by evidence of prosecution witnesses and which facts an appellate court would not readily interfere, and (2) that the assurance of the Director of Police Transport to the Appellants that he would write to the Ministry of Infrastructure and Development (formerly the Ministry of Works, Transport and Utilities) about the interest of the Appellants to purchase the vehicle would be insufficient to confer a claim of right to the Appellants in the vehicle in terms of Section 8 of the Code.

The Law

Section 8, Section 258 and Section 261 of the Code are relevantly in the following terms:

"8 A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.

258(1) – A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:

Provided that the person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.

(2) (a) ................................................

(b) The expression “carries away” includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached.

(c) The expression “owner” includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen.

261(1) Stealing for which no special punishment is provided under this Code or any other Act for the time being in force is simple larceny and a felony punishable with imprisonment for five years."

The elements of larceny are set out in Section 258(1) of the Code. They are:

(i) that the Appellants without the consent of the owner;

(ii) Fraudulently and without a claim of right made in good faith;

(iii) takes and carries away anything capable of being stolen; and

(iv) with intent at the time of such taking to permanently deprive the owner thereof.

The Respondent’s evidence in the court below shows that the Appellants and the Respondent had agreed that the owner of Vehicle Reg. No. 2579 is the Solomon Islands Government. The Ministry of Infrastructure and Development (formerly the Ministry of Works, Transport and Utilities) is the Ministry responsible for the allocation of Government Vehicles to Government Departments. This Ministry is also responsible for the sale of Government Vehicles either through its Ministry Tender Board (MTB) or through the Central Tender Board (CTB). The Ministry of Works, Transport and Utilities (now called the Ministry of Infrastructure and Development) allocated the vehicle to the Police Department in 1997. The vehicle was used for Police duties at Noro. Between December 2001 and 1st April 2003, the vehicle was not in working condition and was garaged at Noro. On unknown date between March and June 2003, the Appellant Pasio went to Noro and collected the keys to the vehicle from the Police at Noro. Pasio told both Sargeant. Pituvaka and Sergeant Leketo who was the officer in charge of Noro Police Station then that he and the Appellant Bennett won the vehicle in a Government tender. This was confirmed by Bennett when Sgt. Leketo rang her up by telephone the same day.

The vehicle was never put on tender for sale by the MTB or the CTB, but remained Government property. The Appellants removed the vehicle from Noro to Munda sometime later and used it privately. The Appellants changed the registration number of the vehicle from Registration No. G2579 to a private vehicle Registration Number in November 2003. The ownership of vehicle remained with the government since it was bought in 1997.

The Appellants' evidence in the court below shows that Bennett went to see the vehicle at Noro in February 2003. Bennett and Pasio then went to see Supt. Eric Koto the then Director of Police Transport about the vehicle, in Honiara. They indicated their interest in the vehicle to the Supt. Koto. Supt. Koto told them to get a mechanic to make an assessment on the condition of the vehicle.

On 19th March 2003, Mr. Leong inspected the vehicle at Noro. He was accompanied by Pasio. He then made an assessment report on the condition of the vehicle. He gave the report to Pasio.

On 25th March 2003, Pasio gave the report to Supt. Koto in Honiara. Supt. Koto told Pasio that he would write a letter to the Ministry of Infrastructure and Development about the condition of the vehicle and about the interest of Bennett and Pasio in the vehicle. Pasio then paid $1000.00 to Supt. Koto as a deposit for the purchase price of the vehicle. Pasio said that Supt. Koto permitted him and Bennett to put parts on the vehicle and remove it to Munda to avoid parts being removed by other persons pending the decision of the MTB to sell the vehicle to them. Pasio bought parts in Honiara and sent them to Bennett at Munda. On 1st April 2003, Mr. Leong put the parts on the vehicle and removed the vehicle to Munda on instruction from Bennett.

Counsel for the Appellants, Ms Kershaw, contended that the Respondent in the Court below failed to prove element (i), (ii) and (iv) of Larceny, as set out above beyond reasonable doubt. However, she conceded that there was evidence to prove element (iii) of the offence. With regards to element (i), Ms. Kershaw contended that the Appellants took the vehicle from Noro to Munda with the consent of the owner because they did so with the permission or the authority of Supt. Koto who was the Director of Police Transport.

The Appellants knew that the vehicle was owned by the government. Supt. Koto was a Police Officer and a Servant of the Government. As a Servant, he merely had custody of the vehicle for Police duties. The legal possession of the vehicle remained with the government. Only the government through the Ministry of Infrastructure and Development could grant consent to the Appellants to take and remove the vehicle to Munda. In this case, Supt. Koto had not yet written to the Ministry of Infrastructure and Development about the interest of Appellants in the vehicle when he permitted the Appellants to take the vehicle to Munda. I think the Appellants took and removed the vehicle without the consent of the owner.

In relation to element (ii), Ms. Kershaw, submitted that the word “fraudulently” in Section 258(1) of the Code should be given the same meaning as when that word is used in the context of embezzlement. In particular, as Sir John White P explained the meaning of fraudulently in Teritelia -v- R [1987] SILR 4 p.14:

“the state of mind to be proved in all such cases depends on a subjective test to be applied by the jury, assessors or trial judges and magistrates sitting alone as to question of fact in each case but having regard to the meaning of fraudulently which is a question of law. Accordingly, the question of fact to be determined on all the relevant evidence is whether the prosecution has proved beyond reasonable doubt that the accused did prejudice or take the risk of prejudicing another’s right, knowing that he had no right to do so. Through out the cases the requirement of proof of the knowledge is commonly described as proving the accused’s dishonesty”.

My view is that the word “fraudulently” in Section 258(1) of the Code has acquired a special meaning. It should not be given the meaning of “fraudulently” as used in the case of embezzlement.

The word “fraudulently” received judicial consideration in R -v- Wiliams [1953] 37 Cr. App. R 71. Williams was a case of Larceny and involved a consideration of Section 1(1) of the Larceny Act 1916 (UK), the equivalent of which is Section 258(1) of the Code.

In giving judgment in Williams’s case, Lord Goddard C.J. said at 79:

“the court thinks that the word “fraudulently” does add and is intended to add something to the words “without claim of right” and we think it means this (though I am not saying that the words I am about to use will fit every case, but they certainly will fit this particular case) that the taking must be intentional and deliberate, that is to say, without mistake. You must know when you take the property that is the property of another person and that you are taking it deliberately, not by mistake and with an intention to deprive the person of the property in it. A very simple illustration which sometimes arises is where a person picks up a suitcase at a railway station believing that it is his. There may be a suitcase on the flat form when the luggage van is emptied which may so resemble his own that he may pick it up, believing it is his. There, the taking is under a mistake and he is not taking it fraudulently; of course, if he knows it is not his own, as the persons who haunt rail way stations for the purpose of stealing suitcases do, then it is larceny; but if a person, although he is not there setting up a claim of right against someone else, is taking away a suitcase in the mistaken belief that it is his own, he is not acting fraudulently. We think that the word “fraudulently” in the section must mean that it is done intentionally and under no mistake, with the knowledge that it is the property of another person.”

The vehicle was used for Police duties from 1997 to November 2001. It was garaged at Noro between December 2001 and March 2003 as it was not in working condition. Its keys were kept by the Officer In charge of Noro Police Station. Parts of the vehicle went missing when it was kept in the garage. The Appellants acquired new parts and replaced the missing parts. The Appellants then removed the vehicle to Munda on 1st April 2003 and there used the vehicle for their own purposes. They knew that the vehicle was government property. Their removal of the vehicle to Munda deprived the Government of its custody and possession of the vehicle. The Appellants took and removed the vehicle to Munda deliberately and without any mistake.

Ms. Kershaw contended that the Appellants had a claim of right to the vehicle because they made arrangement to purchase it and had paid $1000.00 for it.

The Appellants did not assert any claim of right to the vehicle in the court below. Their evidence was that they took and removed the vehicle from Noro to Munda in order to prevent further parts of the vehicle being removed by unauthorised persons pending the decision of the MTB to sell the vehicle to them.

A belief by the Appellants that they may acquire a right to the vehicle in the future would not be enough to confer upon them an honest claim of right to the vehicle. (See the Queen v. Pollard [1962] QWN 13 referred to in Teritelia v. R [1987] SILR 4 p. 32). Also, my view is that the Appellants do not have an honest claim of right to the vehicle in the view of what I said about their actions below.

In relation to element (iii) of the offence, Ms. Kershaw contended that the Appellants had no intention to permanently deprive the owner of its vehicle as evinced by their not taking any steps to alter the registration number of the vehicle and the non removal of the Police markings from the body of the vehicle.

The retention of the registration number of the vehicle and the non removal of the Police markings from the body of the vehicle does not conclusively demonstrate that the Appellants had no intention to permanently deprive the government of its vehicle. These may also show that Appellants were prepared to use the vehicle privately as they did without their need to obtain vehicle licence and insurance policy in respect of the vehicle, as government vehicles are exempted from the requirement by law to have vehicle licences and insurance policies for their use on the road.

There was evidence from which inference would be drawn that the Appellants had intention to permanently deprive the government of its vehicle. That evidence is as follows: First, when the Appellants collected the keys of the vehicle from Noro Police Station, Pasio told Sergeant Pituvaka and Sergeant Leketo and confirmed by Bennett, that they won the vehicle on tender, which statement was not true. The vehicle had not been tendered out for sale and the vehicle still remains government property; Second, they were not issued with any receipt for the $1000.00 which they said they paid to Supt. Koto for the vehicle; Third, they said the took the vehicle into their custody with the sole purpose of preventing further parts of the vehicle from being removed by unauthorized person pending the decision of MTB to sell the property to them, but instead converted the vehicle for their private use; Fourth, they never made any follow up enquiries with the Director of Police Transport and the Ministry of Infrastructure and Development about their desire to purchase the vehicle.

Finally, Ms. Kershaw submitted that the Learned Magistrate was wrong in rejecting the Appellants defence under Section 8 of the Code. She also submitted that the Learned Magistrate misapplied the Law under Section 8 of the Code to the evidence of the Appellants.

My view is that Section 8 of the Code is not a defence to an offence of theft under section 261 of the Code. The reason being that Section 258 of the Code (formerly section 251 of the Code), specifically expressed the defence of “claim of right made in good faith”. The defence under section 8 of the Code requires two separate elements to be proved together before the defence can succeed. These elements are “an honest claim of right” and “without intention to defraud”. There is no requirement for intension to defraud “under Section 258 of the Code (See Teritelia v. R [1987] SILR 4 p. 30).

My view is that there was evidence to convict the Appellants on simple Larceny. I will dismiss their appeal against conviction.

Appeal against sentence

I have considered the mitigation raised on behalf of the Appellants in relation to their appeal against sentence. Much of that mitigation has been raised in the court below on behalf of the Appellants and had been considered by the Learned Magistrate before passing sentence upon the Appellants. However, I noted that the Appellants are husband and wife with very young children.

Those children would need their support in every way. I also noted the vehicle which they stole had been returned to the owner in working condition due to the extensive repairs effected on it by the Appellants. I will allow their appeal against their sentences and reduce sentence imposed on each of them from 2 years to 1 year 6 months.

Orders of the Court

1. Dismiss appeal against conviction.

2. Quash order of the Magistrates Court dated 9th February 2004 imposing sentence of 2 years.

3. Substitute sentence of 1 year 6 months.

THE COURT