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Regina v Kaliuae [2010] SBHC 30; HCSI-CRC 413 of 2006 (29 June 2010)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 413 of 2006

REGINA

V

JOHN MAETIA KALIUAE

Date of Hearing: 23rd June 2010
Date of Judgment: 29th June 2010

For Crown: Ms. R. Olutimayin
For Accused: Ms. L. McSpedden

SENTENCE

Naqiolevu J:

1. The accused has been convicted of nine counts of the offence of Official Corruption contrary to Section 91 (1) of the Penal Code.

The offence is serious and the court must consider a sentence that is commensurate with the offence to send a clear message to the members of the public that this court will not tolerate this type of offence and will impose appropriate custodial sentence.

2. The court has carefully considered the submission on an appropriate sentence by the crown and clearly the range of appropriate sentence in case of similar circumstances.

3. It is clear that the personal circumstances of the accused are not unique or peculiar to him. The court accept authority of Frank Kyio([1]) where His Lordship Palmer CJ stated that

"Any form of incarceration will always cause hardship on his family members. The personal circumstances of the appellant enumerated before me are not unique or perculiar to him. It had always been said that these are the consequences he should have thought of before committing the offence".

Aggravating Circumstances

4. The court has taken into consideration aggravating features of the case, the accused was Chairman of the Solomon Islands Citizenship Commission and the time of offending occupied a position that was highly respectful. The accused action has undermined the position of the Citizenship Commission and brought disrepute.

5. The court has considered the principle of general deterrence given the accused occupied an office of senior position and there is a need to send a clear message that those persons of senior position cannot use the position to gain benefit for themselves.

6. The court has further taken into consideration a comparative analysis of cases of similar circumstances in this jurisdiction and other region within the Pacific.

Mitigating Circumstances

7. The court has carefully considered the mitigation circumstances of the accused and the various testimonial tendered on his behalf by various prominent people within the community who spoke highly of him. The pastor of his church, Pastor Alfred Maru who raised facts which relates to the accused contribution to a school. Pastor testified to the accused involvement as a chief in the community back home and a great leader of the church.

8. Pastor referred to the accused as a great man who is given great respect and has proven himself to the people of person that this nation honoured him and give him all honours. Pastor Maru testified that despite his conviction, it has not changed his opinion of him. With regard to the SDA he is respected in the church and involved in lay activity. He is the Head of the Elder of Mt Horeb church. Mt Horeb has a school which the accused founded and he continued to involve in his activity. His involvement in the peace process during the ethnic tension is important and he continues to be involved to bring peace to the people of Malaita.

9. The court has considered the medical report as tendered by the counsel for the accused.

10. Counsel for accused in her mitigation submitted the issue of the monetary value of the offence the accused is charged with. The court consider as advanced by counsel that it should put the offence at the lowest end of the scale.

11. Counsel for the accused submitted the delay in the prosecution of this case which has taken a considerable time and which has had an effect on the accused. The delay has imposed a form of extra curial punishment because he’s had the sort of shame and speculation of the community and publicity

abounding in relation to the and this to be man of many years after his exemplary career, could only be seen to be a shattering blow and the effect has been for the last seven years of uncertainty, publicly and lost of reputation have formed part of the punishment.

12. The court in considering an appropriate sentence for an offence of this nature must consider a person who holds a position of trust and which the general community view within greatest respect. It is the offence that is serious and an aggravating feature which must be treated with all seriousness.

13. The court is of the view that offence of Official Corruption has been eating the very fabric of society at every level in this country. What is of importance is that it is affecting the very leaders within the highest echelon of the government and society.

14. The court has taken into consideration the authority of Frank Kyio-v-R([2]) which clearly advance the principle of the aggravating features of an offence and the personal circumstance of the accused. The court had clearly stated that any form of incarceration will always cause hardship on close family members, and the personal circumstances which were not considered to be unique. The accused should consider the consequences of his action before committing the offence.

Totality Principle

15. The court in considering an appropriate sentence given the accused has been convicted of several counts in the offence of Official Corruption.

The court will take into consideration the totality principle for an appropriate sentence, given the maximum sentence for each count is seven years.

16. The court consider that an appropriate sentence for the offence would be to impose a head sentence which is important to meet the end of justice and stand back and look at the overall picture and decide whether the total would otherwise be appropriate, is a fair and reasonable sentence to impose. See Mill-v-The Queen([3])

17. The court has taken into consideration the Old Age Principle as enunciated by this court in the case of Togovi([4]), where the court consider the average age life expectancy of Solomon Islanders. The court consider the age of the accused which is 66 years, and any long term imprisonment will result in the accused not having any years of useful life after being released.

18. The court in all circumstances consider a short custodial sentence would be appropriate and after having carefully considered the submissions in mitigation by the accused and the appropriate level of sentence as submitted by the crown counsel.

ORDER

The accused is sentenced for the following:

Count: 26 - 2 years imprisonment

Count: 27 – 18 months imprisonment

Count: 28 - 18 months imprisonment

Count: 29 - 18 months imprisonment

Count: 30 - 18 months imprisonment

Count: 31 - 18 months imprisonment

Count: 32 - 18 months imprisonment

Count: 33 - Acquitted

Count: 34 - 18 months imprisonment

Count 27 is to be served consecutively to count 26. Count 28, 29, 30, 31, 32 and 34 to be served concurrently to count 27.

Total term to be served is 3½ years.

THE COURT

^[1] Crim Appeal No. 259 of 2004
^[2] [2004] SBHC 90
^[3] [1998] 166 CLR 59
^[4] Crim Appeal Case No. 50 of 2009