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Regina v Davis [2010] SBHC 107; HCSI-CRC 345 of 2010 (1 November 2010)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)

Criminal Case No. 345 of 2010

REGINA

-V-

ROY DAVIS

Date of Hearing: 25th October 2010
Date of Judgment: 1st November 2010

Ms Natalie T Kesaka for the Crown
Mr. Edward Kade for the Defendant

JUDGMENT

Mwanesalua, J: The defendant, Roy Davis, is charged with one count of Money Laundering under Section 17(1)(a)(i) of the Money Laundering and Proceeds of Crime Act 2002. The defendant pleaded guilty on arraignment and was convicted of the offence accordingly. The offence carries in the case of an individual a maximum fine of $150,000.00 or a maximum sentence of 10 years imprisonment or both such fine or imprisonment.

The prosecution summary of facts states: On the 24th June 2009 Mr. Roy Davis while working for Bank South Pacific fraudulently created an Ezy Account under the fictitious name of Peter Deve Toosi account number 1200000025655 and Peter Salaka Junior was the signatory to the account. After crediting the account on 26th of June 2009 Mr. Davis debited $85,052.46 from Sweetie Kwan Wing Leung Ltd cheque and credited the amount to the newly created account in the name of Peter Deve Toosi who is in fact Peter Salaka Junior in account number 1200000025655.

On Monday 29th June between 9:36am and 8.44am Peter Salaka the co-accused withdrew $83,000.00 from account 1200000025655. This was carried out according to plan. The money was withdrawn early in the morning when the banks were still very much empty. Peter Salaka gave the full amount to Roy Davis that morning. Roy Davis gave Peter Salaka $17,000.00 as commission. Roy Davis pocketed $66,000.00. He then bought a car reg. AB4811 from Kevin Fifi for $45,000.00 and spent the rest. He was arrested on the 31st of August 2009 at his home at Naha 1 and did a record of interview with the police that day. He admitted in his ROI that he created the Ezy Account in the name of Peter Deve Toosi. He pleaded guilty to one count of false pretense in the Central Magistrates court on the 20th of July 2010 and was sentenced to 3½ years imprisonment. The money laundering charge was committed to the High Court on the 9th of August 2010. The defendant has pleaded guilty to one count of money laundering contrary to Section 17(1)(a)(i) of the Money Laundering and Proceeds of Crime Act 2002.

These facts merely relate to count of false pretence on which the defendant pleaded guilty, convicted and sentenced to 3½ years imprisonment by the Central Magistrates' court on 20th July 2010. The prosecution did not present any facts in relation to count of money laundering on which the defendant entered a guilty plea and convicted by this court. The prosecution has a duty to assist in the task of passing sentence by an adequate presentation of facts.

In R v Tait and Bartley [1979] FCA 32; (1979) FLR 386; 24 ALR 473 (FCA) Brennan, Deane and Gallop JJ said in a joint judgment (At 849;477):

"It remains true that the crown is required to make its submissions as to sentence fairly and in an even handed manner, and that the crown does not, as adversary, press the sentencing court for a heavy sentence. The crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case at hand, and by a fair testing of the defendant's case so far as it appears to require it. If the proposition that the crown is not concerned with sentence was ever construed as absolving the crown from this duty, it cannot be so construed when the crown right of appeal against sentence is conferred. The crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him and thus has a fair opportunity of meeting it".

In R v Anzac [1987] NTCCA 7; (1987) 50 NTR 6; 88 FLR 645; 31 Crim R 310 (CCA) the court said in a joint judgment (at 14; 473; 318:

"[A] Crown Prosecutor has a duty to assist a sentencing judge who invites a submission from him.....It is clear that where sentence is imposed following a plea of guilty the crown is under a duty to ensure that there is placed before the sentencing judge all the facts relating to the commission of the offence charged and necessary to enable the judge to form a proper view of the criminality involved"

On the 20th September 2010 the defendant instructed his counsel that he would plead guilty to the charge of Money Laundering. He so pleaded before this court. The effect of such a plea is given in Australian Case Law. In R v D'orta Ekenaike [1998] 2 VR 140; 99 a Crim R 454 (CA), Winneke P said (at 146 – 147; 462:

"Evidence of an earlier plea of guilty amounts to a formal confession of the existence of every ingredient necessary to constitute the offence. See Dekruiff v Smith [1917] VR761 at 765; R v Henry [1917] VicLawRp 65; [1917] VLR 525 & 526."

The elements/ingredients of the money laundering count laid against the defendant are set in the particulars to the information field against him. It is clear from sentencing submissions in this case that the defendant acquired money from an account at Bank South Pacific, used the money to purchase a car, with the knowledge that the money was obtained directly, from acts of false pretence which constituted an offence in Solomon Islands.

This court is of the view that the criminality of the offence of money laundering in this case, that is to say, the acquiring, possessing and using the stolen money is encompassed within the Penal Code offence of obtaining money by false pretence which the defendant had been convicted and sentenced for 3½ years by the Central Magistrates' Court.

It follows that to sentence the defendant now for this offence of money laundering, would clearly amount to double punishment which is forbidden by the proviso to Section 2 of the Penal Code (cap. 26). Having reached this conclusion, this court will also invoke Section 280 of the Criminal Procedure Code (cap. 7) to quash the conviction recorded against the defendant for money laundering. The defendant is therefore acquitted of the Money Laundering charge laid against him. Order accordingly.

Right of appeal explained to parties.

THE COURT