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Inito v R [1983] SBHC 16; [1983] SILR 177 (31 August 1983)

[1983] SILR 177

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No.10 of 1983

INITO

v

R.

High Court of Solomon Islands
(Daly C.J)
Criminal Appeal Case No.1 0 of 1983

31^st August 1983

Sentence - imprisonment and fine combined - appropriate in Solomon Islands - totality - bail pending appeal principles for grant.

Facts:

The appellant was convicted of embezzlement of $635 as a clerk contrary to section 266 (b) (ii) Penal Code. He was sentenced to 8 months imprisonment and a fine of $750 or four months in default. He appealed against sentence. The appellant was granted bail pending appeal.

Held:

1. A fine coupled with a sentence of imprisonment has a part to play in Solomon Islands due to the customary support system. Payment of the fine through that system results in a duty to those who contribute which is an effective sanction against further misdemeanour

2. In this case the totality of the sentences was too great and should be reduced to a sentence of five months imprisonment with a fine of $633 to go as compensation to the Government three month in default of payment of the fine.

3. Bail pending appeal on sentence should only be granted if there is (a) a possibility that a sentence of imprisonment be set aside entirely; or (b) the sentence is likely to be served completely before the appeal is heard; or (c) there are exceptional reasons. Here none of the above applied and bail should not have been granted.

For Appellant: A. Radclyffe
For Respondent: L. Holt

Daly CJ: The Appellant, Lawrence INITO, was convicted on his own plea on the 18th July 1983 of one offence of embezzlement by a clerk contrary to section 266(b) (ii) Penal Code. Following a remand in custody the Appellant was sentenced upon the 4th August 1983 by a Principal Magistrates Court to eight months imprisonment to commence from 18th July 1983 and a fine of $750 to be paid within three months or four months imprisonment in default of payment. He now appeals against that sentence.

The facts are of a kind all too familiar. The Appellant was a respected clerk working in a magistrates office. He got into financial difficulties, through no fault of his own, but then tried to remedy the situation by taking money entrusted to him as a court clerk. Between 1st October 1982 and 28th December 1982 he took $633. Inevitably this was discovered and the Appellant was charged.

As counsel for the Appellant properly concedes, the court was bound to take a serious view of this offence which involves breach of the trust put upon the Appellant both in relation to funds and as a part of the machinery of justice.

The order for payment of a large fine as well as imprisonment may be unusual in other jurisdictions but it has a part to play in Solomon Islands because of what has been called the customary support system. Offers have in this case been made by relations to repay the amount taken. This is not a question of a man of wealthy family being able to buy himself out of the normal penalty but of family and friends coming in a traditional manner to the support of someone in difficulties. In Solomon Islands this happens at all levels of society. In return for that support the Appellant will owe a duty towards those who have contributed and that, in itself, are an effective sanction against further misdemeanour. In an appropriate case, then, the imposition of a fine with a period in default as well as imprisonment is entirely in order as it has in this case.

The problem is, was the totality of the penalties imposed correct? It has been submitted by the Appellant and, indeed, supported by the Respondent that it may be that the totality is somewhat in excess of the current tariff for this type of offence with the mitigating features of this case. I accept that submission. I therefore set aside the sentence of eight months imprisonment and substitute therefore a sentence of five months imprisonment to commence as from 18 July 1983. I also consider the fine should reflect the offer made to repay the sum involved and therefore substitute for the fine of $750 a fine of $633. As it is intended that this fine should be a repayment I also order under section 156 (1) (b) of the Criminal Procedure Code that the whole fine be applied to the payment of compensation to the Government. In default of payment of the fine there will be served three months imprisonment consecutive to the five months. Thus if the fine is not paid the Appellant will serve eight months in all.

There are two other matters to which I should refer. The first arose in the course of submissions and reveals a surprising state of affairs. I was informed that, after filing notice of appeal, the Appellant was released on bail. This is surprising for two reasons. First, the record shows no bail application, hearing and decision upon the application. Second, although there may be good reasons for the release on bail in this case they have not been made clear to me. The Appellant was sentenced to a substantial term of imprisonment. He appealed only against sentence. Not even the most optimistic advocate would have advised him that the sentence of imprisonment would be set aside in its entirety. Nor was there any likelihood that the sentence would be completely served before hearing of this appeal. In those circumstances the grant of bail is unusual and would require exceptional reasons. Indeed the grant may be said to be a disservice to the Appellant who now must return to prison to serve the remainder of his sentence. Where magistrates are faced with a situation in which they have doubt about the grant of bail pending appeal, it should be refused and the Appellant informed of his right to apply to this court. The grant of bail in circumstances such as these can only give rise to expectations which may not be realised.

The other matter which is perhaps more disturbing in that it can only act to the detriment of the Appellant. That is that although the judgment of the learned Magistrate records that the sentence of imprisonment is to commence as from 18 July 1983 the warrant subsequently signed status that the Appellant shall be kept in prison for eight months “from this day” that is 4th August, 1983. Great care should be taken to see that warrants are in identical terms to the orders of the court. The warrant must now be redrafted to reflect the original order of the magistrate and the order of this court.

Orders accordingly.