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Belama v DPP [1984] SBHC 6; [1984] SILR 37 (27 July 1984)

[1984] SILR 37

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case .No. 13 of 1984

BELAMA

v

DPP

High Court of Solomon Islands
(John Freeman, Commissioner)
Criminal Appeal Case .No. 13 of 1984

27 July at Honiara
Judgment 27 July 1984

Appeal against sentence - young offender - deterrence - ground not raised in petition of appeal - lack of juvenile detention centre.

Facts:

The appellant Belama (17) pled guilty before a principal magistrate to larceny in a dwelling-house, was sentenced to 6 months’ imprisonment and appealed against his sentence, mainly on the ground of his youth.

Held:

The magistrate had proper regard to deterrence and rightly rejected other ways of dealing with Belama. Although it was suggested that the magistrate had failed to give credit for $10 returned by Belama to the complainant, this did not appear in the grounds of appeal. As it would require investigation, it would not be considered. There was no evidence that prison conditions were so harmful to Belama as to justify interference with what was a proper, if severe, sentence for a first offender of his age.

Cases considered:

Passingan -v- Beaton [1971-1972] PNGLR 206
B & Anor -v- R. [1982] SILR 38a
Gina & Beti -v- R. (CRAC 12, 13/82, unrep.)

John Muria, acting Public Solicitor, for the appellant
Francis Mwanesalua, Director of Public Prosecutions in person

John Freeman: The appellant Belama is 17. On 13 June 1984 he appeared before J.A. Bowran Esq., sitting as a Principal Magistrate at Gizo. He was charged with larceny in a dwelling house, pled guilty, and was sentenced to 6 months’ imprisonment. Belama now appeals against that sentence, mainly on the grounds that he is a young first offender who ought to have been dealt with in some other way.

The first complaint is that the learned magistrate failed to have regard to section 12(2) of the Juvenile Offenders Act 1972. (“No young person shall be sentenced to imprisonment if he can suitably be dealt with in any other way specified in section 16”). I reject this complaint; the learned magistrate showed (with admirable conciseness if I may say so) that he had considered and rejected the only other ways of dealing with Belama that might have been possible (“Fine or binding over etc. not appropriate”). Of course one obvious way of dealing with a young offender (detention under S. 16(i) was not available, and never has been; I shall come back to that.

Then it is said the learned magistrate placed too much stress on deterrence. I cannot agree; this is one of the most important duties of a criminal court, even when dealing with a juvenile offender. Certainly where he is led into crime by others, or loses his head and does something in the heat of the moment, then his age will be ground for leniency. But here Belama took advantage of a house left unlocked. This is customary in a village where everyone trusts each other, even where there is any secure means of locking a traditionally built house. Belama took money and property together worth nearly $100, (a very considerable sum in a village, despite what is said in the grounds of appeal). This is precisely the sort of offence from which others must be deterred, and imprisonment in my judgment was the only way.

The next complaint is that the learned magistrate failure to give credit for the $10 which Belama said in his statement he had restored to the complainant as part of a customary settlement. No doubt he considered Belama’s statement (though he does not say so); in any case, this complaint was not raised in the grounds of appeal (which were not drawn up by counsel who now appears for Belama). It would require lengthy enquiries to substantiate the story of the customary settlement. They could have been made if this had been raised at the proper time; as it was not, I am not prepared to consider it.

Finally counsel referred me to three decided cases. Passingan v. Beaton [1971-72] PNGLR 206 shows no more than that a crushing blow (in that case taking the form of consecutive heavy sentences) should not be imposed on a young offender. Then two Solomon Islands cases, B & Anor v. R. [1982] SILR 206 and Gina & Beti v. R. (unrep. Cr. App. Cases nos. 12 & 13 of 1982) were cited. In both these cases sentences of imprisonment (ranging from two to six months) had been passed on young men who broke into buildings and stole property. Because of conditions in the Central Prison, and especially because there was no juvenile detention centre available, Daly CJ ordered the immediate release of all the appellants. He made it quite clear that he regarded their sentences as right in principle, and only allowed the appeals as an act of mercy. I am urged to follow his example. I decline to do so for two reasons; first, there is no evidence of anything very wrong with conditions in the Western prison, where Belama is serving his sentence. Next, no-one has so far paid the slightest attention to the repeated calls of Daly CJ for a juvenile detention centre to be provided (as required by S.17 of the Juvenile Offenders Act 1972). I wholeheartedly join in those calls, but it has now become only too clear that there is little prospect of them being answered. This is a scandalous state of affairs, but I do not think this court can simply go on interfering with sentences which are correct in principle until such time as it is put right. That may well be necessary if there is any evidence of immediate harm caused by prison conditions; otherwise however it only serves to discourage courts from doing what they think is just.

It may be that this sentence is a little on the severe side (the only six months’ sentence in any of the previous Solomon Islands cases cited was imposed for burglary). It might have been open to the learned magistrate to give Belama rather more credit for his plea of guilty; but this is not raised in the grounds of appeal, and it is clear from the learned magistrate’s reasons that he had the plea in mind. A sentence of imprisonment was right in principle; this one was within the possible limits of length and the appeal must be dismissed.