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Tingolo v Regina [2010] SBHC 6; HCSI-CRC 467 of 2009 (12 January 2010)

HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

Criminal Case No. 467 of 2009

IN THE MATTER OF APPLICATION FOR BAIL

BETWEEN:

OSOPITU TINGOLO
Applicant

AND:

REGINA
Respondent

(Mwanesalua, J.)

Date of Hearing: 11 January 2010
Date of Judgment: 12 January 2010

Mr Tovosia for the Applicant
Ms Christensen for the Respondent

JUDGMENT

Mwanesalua, J

1. The Applicant was convicted of one count of forgery and one count of uttering, under Sub-Sections 341(1) and 343(1) of the Penal Code respectively. The Magistrates’ Court accordingly sentenced him to 12 months imprisonment for forgery and 6 months imprisonment for uttering. The sentences were ordered to be served consecutively.

2. He was dissatisfied with the decision and the sentences, so he appealed against his conviction and sentence to the Court on 2 February 2009. His Amended Notice of Appeal was filed at the Court on 14 April 2009, containing his grounds of appeal and the orders he seeks from the Court. He told this Court (the Court) that he is due to be released from prison on 19 January 2010 having served his term when the one-third remission is taken into account.

3. The record of his case has not been sent to the Court after his appeal was filed. This position remains even though his lawyer raised concern about the delay to the Magistrates’ Court on 16 April 2009. The record needs to be forwarded to the Court pursuant to Section 287 of the Criminal Procedure Code (CPC). It is necessary for the purposes of the appeal.

4. As he will finish serving his term on 19 January 2010, he now comes to the Court for bail, pending the hearing of his appeal. He merely has 7 more days from today to complete his term. There is no evidence to show that he would not be eligible for a one-third remission of his total term of 18 months imprisonment. The fact that he is at Tetere Prison suggests that he behaves well in prison and would get a remission.

5. The Court does have power under S.290 of the CPC to release a prisoner on bail pending the hearing of the appeal where such an appeal is before the Court as in this case. But this power is discretionary and the Court will consider the circumstances of each case before exercising the discretion to grant bail to a serving prisoner. The Court may refuse to grant bail as well.

6. The Applicant’s appeal is yet to be listed for hearing. It seems it has not been listed because the Court is yet to receive the Court record. There is nothing before the Court as when that would be done. If the Applicant is released on bail pending the determination of his appeal, and if the appeal is heard when the record is available but is dismissed, the Applicant will have to return to prison to complete his sentence. On the other hand, if the record is not made available quickly for whatever reason, then the Applicant may have to wait a long time for his appeal to be heard, with the unserved balance of his sentence still hanging over his head. That would affect him personally in many ways, for example, his movement may be limited from conditions imposed on bail and the fact that he is still a prisoner and not a free man, would be a concern for him.

7. Whilst the full record of his case is not before the Court, the decision of the Magistrate who convicted and sentenced him is with the Court. That decision contains the charges laid against him; the relevant exhibits which the prosecution tendered to support their case against him; the evidence which the Court considered to prove the charges on which he was convicted and sentenced; and the authorities and the principles of law considered by the Magistrate to support the convictions. This is the first opportunity which a judge of this Court perused his appeal in terms of S.288 of the CPC. The Applicant exercised his right to remain silent at his trial in the Magistrates’ Court. That is his right and is usual in criminal trials.

8. I have read the decision on the Applicant’s case. It is clear and the evidence on which he was convicted was carefully assessed. The convictions were supported by evidence. The sentences imposed on him were reasonable having regard to the seriousness of the charges and the nature of his offending.

9. This Court considers that the appeal has been lodged without sufficient consideration of the grounds of complaint. The application for bail is therefore refused and his appeal is summarily dismissed under S.288 of the CPC. Order accordingly. The Applicant is told of the right of appeal.

F Mwanesalua
JUDGE