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Regina v Anika [2008] SBHC 91; HCSI-Criminal Review Case 762 of 2008 (21 November 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Review Case No.

Central Magistrate Court CRC No. 762 of 2008

REGINA

V

1. WILLIE ANIKA

2. MOSES ROLLAND RAMO

Date of Review: 21st November 2008

Ms Angela for the Prosecutor
Paulsen for 1st Defendant
Willwork for 2nd Accused

REVIEW OF JUDGEMENT

Faukona, J.

This is a review case pursuant to section 47 of the Magistrate Court Act.

Both accused Mr Willie Anika (age not known but single) and Moses Ramo (26 years) are jointly charged for Store breaking contrary to Section 300(a) of the Penal Code.

Brief facts

On 17th March 2008 about 3am in the morning both accused accompanied with some other boys went to KGVI Store owned by Mr Patrick Zhang. Both accused together with the other boys climbed up the copper fence of the compound to gain entry into the shop. A pinch bar was used to gain entry into the main shop.

Whilst in the shop they stole a number of valuable goods and property which totalled up to $133,149.60.

During the incident the complainant and some of his workers who resided in the compound were awoken by the noise caused by the offenders, but could not be able to do anything as they were out numbered, and at the same time the offenders were armed.

Both accused were arrested on the 4th June 2008, after several attempts were made to arrest them failed, because they had escaped to Yandina. Both were placed in custody after arrest.

On 28th October both accused appeared at the Central Magistrate Court and entered a plea of guilty, and both were sentenced for two years imprisonment wholly suspended for two years.

Aggravating Factors

Aggravating factors which were made available before the learned Principle Magistrate did not vary much between the two accused. That the offence of Store Breaking is a felony and carries a maximum penalty of 14 years imprisonment. That both accused were part of the group that were involved in the Store Breaking. A weapon was used (pinch bar) to gain entry into the shop. Significant amount of goods and property were stolen totalled to $133,149.60.

At the submission the Prosecutor urged the leaned Principle Magistrate not to follow the decision of the other Magistrate who had dealt with the other two co-accused previously. And also submitted that the age of the two accused were inappropriate to be seriously take into account.

Mitigating Factors

Anika

He was a single young man without prior convictions. His age was not disclosed. He had pleaded guilty to the charge. Since arrested had been in custody for roughly five months. Expressed remorse for what he had done.

Ramo

He was twenty six years of age. He was married with one child four months old. He pleaded guilty to the charge and without any prior convictions. Since arrested had been in custody for roughly five months. He expressed remorse, and apologise for what he had done. Admission saves time for trial.

Were the Sentences manifestly lenient or not

Suspended sentence is provided for under section 44 of the Penal Code (Cap. 26). The whole object of a suspended sentence is to avoid sending the accused to prison. When imposing a suspended sentence a Magistrate must give reason for suspension. It has to be stated clearly on the record the reasons for suspension.

The High Court will only intervene in a sentence if it sees necessary, where it is manifestly inadequate or excessive, or where the learned Magistrate had made errors in law, or facts, or miscarried, which had he not done so, he would not have arrived at the sentence.

In this case, it appears from the record that the learned Principle Magistrate did consider and took into account all the mitigating factors which I have listed above, but less or non at all in respect of the aggravating factors. They are usual facts which the court normally obliged to consider before imposing an appropriate sentence.

Noted from the record the fact that both the Prosecutor and Defence Counsels had not assisted the Court much. No guidelines as to sentencing option were submitted. It may seem that they have treated the offence of Store breaking as less serious. No case laws related to sentencing were submitted for the purpose of comparison and consideration.

The learned Principal Magistrate therefore had before him very limited facts to assist him consider an appropriate sentence, so he opted to follow his other colleague’s sentence which he intended to maintain parity of sentencing. In doing so he was erred in not considering, or if considered, not recorded, a number of pertinent aggravating factors which could have a great influence on his mind to arrive at the most appropriate sentence.

1. Store Breaking as a serious Offence

In Hola, Tome and Lai VR[1], Ward CJ held;

"There can be no doubt that house breaking is a serious offence. This is reflective of the fact that the law puts the maximum punishment for such an offence at 14 years imprisonment. As such it cannot be said that the custodial is wrong in principle in house breaking cases".

The same sentiment was echoed in the case of R v Robert Mani[2] where Palmer J said;

"The offence of break and enter contrary to section 293(a) (now Section 299(a)) of the Penal Code, carried a maximum penalty of 14 years imprisonment. That without doubt is a serious offence, and the courts have continually made clear that even first offender convicted under such offence, must expect to go to prison".

In Paroke and Kuper v R.[3] Muria CJ held;

"I do not accept the suggestion that because an offender is young and first offence, he should not be sent to prison. In cases of serious crime, and house breaking is such a crime, the court must reflect the seriousness of the crime in the sentence they pass upon a young offender".

The message is clear and plain. Anyone convicted of serious offences as store breaking or housebreaking expects a custodial sentence immediately, even first or younger offender. That will reflect how serious the offences are.

2. Offence committed by a group with arms.

The next issue not considered by the learned Principle Magistrate is the fact that the offence was committed by a gang of boys who ventured at night and being armed and broke into the shop. In R v Neslon Funifaka and Others[4], Palmer J stated at page 16;

"...The message must be made clear and plain that those who venture out at night, armed and break into peoples homes expect to be sent to prison.

In Stanley Bade v R [5]

"...From this point, this court should consider aggravating factors such as committing the offence with support of others.....Where masked are used, weapons are carried, threats are made or similar escalations in seriousness of the sentence are present the penalty should be further increase.."..

3. Premeditated crime

Being in a group, armed with a pinch bar and venture at night indicated quite obviously that the offence committed (store breaking) was premeditated. They have planned it well in advance, and then implemented it by venturing at night searching for homes or businesses to break into. One of the very significant factors which the learned Principle Magistrate ought to have had considered. The record does not reflect so. In the case of Bade v R[6], Ward CJ said;

"...theft of personal items that can be little or no value to the thief, general ransacking of the house, wanton damage, pre-planning are the degree of breaking necessary to gain entry. If such matters are present they should add to the penalty...".

4. Manner in which Offenders gain entry

From the facts, the offenders climbed up the fence and used a pinch bar to gain entry into the shop. That’s a genuine act of violence with a high degree of breaking. In Bade’s case Ward CJ said, if such matter are present they should add to the penalty. He further stated where weapons are carried, threats are made the penalty should further increased. Noted as well that the owner and some of his workers were present but could not able to protest because they were feared of being harmed. Offenders then took off with goods and properties under the watchful eyes of the owner and his workers. Palmer J stated in Funifaka case that people are entitled to feel safe and secure in their homes and to have a good nights sleep and rest without being disturbed.

Is this the kind of behaviour that the courts will ignore when considering a sentence. The courts have a duty to protect the society from such persons with criminal minds, see Funifaka’s case. On record, there is no consideration by the learned Principle Magistrate on this important factor.

5. Store breaking a prevalent offence

I have no doubt store breaking and house breaking are prevalent offences in this country. The trend is on the rise. The courts must be mindful in deciding a kind of sentence to impose to equate to the current rise. For such an anti social behaviour, to at least reduce to certain level, the courts must be vigilant in their sentencing approach. In Mani’s case Palmer J had made it clear, bearing in mind the criminal climate of times and the instance by those involved directly in dealing with such activities. In fact he was referring to the courts. Again he echoed in Funifaka’s case, taking special note of the prosecution submission that the trend is developing in Honiara of people taking liberty to break in peoples homes, the courts must send out a clear messages and distinct sound to public on such matters.

In this case no encouraging message was sent out to the public despite knowing fully well that this class of offence is on the rise.

6. Value of items stolen

Other important facts ought to have been considered is the value of goods and property stolen. $133,149.60 is a substantial amount. No inquiries were made, and shown on record, how much of the goods and property were recovered.

7. The effect on the victim

The records also does not show that the learned Principle Magistrate had considered any effect that may have on the victim, or any distress that may have experienced at the time of invasion by the accused, see Bade’s case and R v Luckhurst[7]

Also noted, the record of the learned Principle Magistrate does not show any reason for suspension of the sentence; the record should state clearly all the reasons why a suspended sentence is considered most appropriate in the circumstances of the case.

In a recent Court of Appeal Case R v. Kada[8], the offenders were charged for two counts of grievous harm and one charge for burglary. The amount involved in the burglary charge was $13,000.00 worth of electrical goods. The burglary sentence was not appealed, but the High Court sentence of 4½ years imprisonment fall within sentencing discretionary power of the Judge.

In the above case, their Lordships refer to the case of R v. Dani[9], where two accused were charged for burglary and grievous harm. The grievous harm charge was a minor one and the offenders had not gone inside the premises. Each accused was sentenced to 4 years imprisonment on each count to run concurrently.

Burglary charge may be seen as more serious then store breaking in terms of their maximum punishment, but it does give a hint as to where to start, when deciding a sentence.

The facts surrounding the committal of this offence are very serious. One that cannot be taken lightly. The courts have made it clear, as such; a custodial sentence must be imposed. Whether it be a young offender, see Bade’s case and Paroke’s case, or a first offender see Man’s case, the court has to maintain its stance, bearing in mind the criminal climate of the times. A consistent approach must be taken and a message send out clear and distinct sound to the public, that people taking the liberty to break in other peoples homes or businesses is expected a custodial sentence immediately. The element of deterrence must be borne in mind and applied so that at least persons who are minded to do such things can at least think twice or again. And to show the disapproval by society of such conduct by young people.

Having said that I refer to Palmer J’s sentence in Mani’s case. The offence is break and enter. His Lordship made it plainly clear that an appropriate sentence for this type of offence range from 9 months to 24 months, and confirmed 22 months imposed by the Chief Magistrate. In Bade’s case the starting point for burglary for an adult first offender is two years imprisonment.

I have read the record of the case and fully understand the facts. It was indeed a very serious type of store breaking. The sentence imposed by the learned Principle Magistrate 2 years imprisonment wholly suspended for 2 years is indeed inadequate and very lenient. No reason for suspension was explained. He had failed to consider the aggravating factors. I have decided that 2 years suspended sentence is very lenient, and therefore must be quashed and substituted with immediate custodial sentence.

Considering the seriousness of the offence and the circumstances that surrounds the committal of the offence, the starting point in this case is 2 years. Because of the presence of aggravating factors in committing the offence with the support of others, pre-planning, and degree of breaking to gain entry are quite high, I add another 9 months. Of course weapon was carried and used in this case, and threats were made, I add further 9 months, see Bade’ case. After considering the mitigating factors I discount 6 months. The increase and deductions are imbalance because the aggravating factors seem to weigh more than the mitigating factors.

Both accused to serve 3 years imprisonment each. 5 months already serve in custody be deducted from the sentence.

Warrant of Imprisonment be issued immediately and both accused be put in jail forthwith.

THE COURT

^[1] [1988-89] SILR 121, Page 125.
^[2] (Unrep. Criminal Case No. 29 of 1997).
^[3] (Unrep Criminal Case No. 21 of 1999, page 2).
^[4] (Unrep. Criminal Case No. 33 of 1996).
^[5] (1998-89) SILR 121
^[6] Ibid, page 125.
^[7] (1972) 56 Cr App R 209.
^[8] (SICOA CAC 35/67, 18/7/08).
^[9] (2004) SBCA 6.