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Nanai v Regina [2005] SBHC 74; HCSI-CRAC 324 of 2004 (21 June 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 324 of 2004.

BILLY NANAI

-v-

REGINA

Date of Hearing: 7th, 9th, 15th and 17th June, 2005.
Date of Sentence: 21st June 2005.

P. Little and H. Kausimae for the Crown.
H. Barklay and J. Goldbolt for the Accused.

SENTENCE

Kabui, J.: You were originally charged with murder, rape and incest, contrary to the relevant sections in the Penal Code Act, (Cap. 26), (the Code). You pleaded guilty to the charge of incest and not guilty to the charges of murder and rape. The Crown offered no evidence to support the charges of murder and rape and I acquitted you on those two charges accordingly. I entered a plea of guilty against you and convicted you of incest on your own plea of guilty. It is now my duty to sentence you on the facts of your case. The facts are that the complainant is your own daughter, being the first born of your children. Your wife had died, leaving you to care for your daughter and your other children. You and your children lived together in one house. Your bed was near where the complainant slept and the other children. You had sexual intercourse with the complainant on more than one occasion as a result of which she got pregnant. She gave birth to a child of which you were the father but the child died at birth. Your daughter was under twenty years of age at the times you had sexual intercourse with her. I give you credit for pleading guilty. You had also co-operated with the Police and admitted the offence in your caution statement taken by the Police on 19th October 1994. I also take into account the delay in prosecuting you for this offence. It had taken the Police almost eleven years to finalize your prosecution. There is no formal explanation for this inordinate delay. In mid 2001, you suffered a stroke. The Police knew your whereabouts but did nothing to move your case forward for prosecution purposes. You have suffered a stroke after waiting for your trial. You are now a disabled man who would need assistance of others to be able to live a normal life in the village. You have now spent almost eighteen months in custody. Most likely, you would not be able to re-offend. You had also paid compensation to effect reconciliation in your community. You of course realize that you had broken the law, your custom and the trust you had as a father towards your daughter. The offence of incest carries a maximum penalty of seven years imprisonment. The possibility that your daughter might have consented reluctantly is no defence. The fact that your daughter had become pregnant and given birth to a still born child is an aggravating factor against you. It did not matter that your daughter hid her pregnancy from you until delivery of the child. You were responsible for her pregnancy and you knew it. You were careless and insensitive to have slept in the same room as your daughter and your other children. Your daughter however has now married and moved away from your village though with the stigma you imposed on her by your conduct. The case closest to the facts of your case was Rebini v. DPP, Criminal Case No. 44 of 1986. In that case, the prisoner pleaded guilty to three charges of incest. He was sixty-one years old and a victim of polio. He had continual pain and deformity. His wife had died. His daughter had died before the trial, leaving eight children. His son had also committed suicide. His circumstances were therefore devastating to him. Compensation had been paid in custom. His daughter was sixteen years at the time of the offence. There had also been a delay of one year before he was prosecuted. The sentence of three years imprisonment imposed on him by the Magistrate Court was upheld on appeal by the High Court. Another case was Peter Roko v. Regina, SILR [1990] 270 where the prisoner was sentenced to three years on each of the four counts of incest to be concurrent. When another three years were added for count one, the total sentence was six years. The sentence for count one was reduced to two years imprisonment on appeal to the High Court, reducing the total sentence after appeal, to five years. In that case, the victim was a virgin and was sixteen years at the time of the offence. She was pregnant as a result of the incest. Incest was committed on more than one occasion-in fact four times and there were guilty pleas to all counts with further similar offences being taken into consideration. In Philip Hagataku v. Regina, Criminal Case No. 8 of 1993, the prisoner pleaded guilty to one count of incest. The victim was eighteen years old at the time of the offence. The victim became pregnant and delivered a dead foetus as a result of that union. The prisoner was sentenced to three years imprisonment. The case of Regina v. John Teuta, Criminal Case No. 49 of 1978 was rather an exception because though the victim was convicted of two counts of incest with his daughter after trial, the prisoner was sentenced to eighteen months imprisonment on each count to run concurrently. That sentence was rather lenient on the facts of the case. The Attorney-General’s Reference (No.1 of 1989) [1989] 3 All E.R. 571 sets out the general guidelines to sentencing in England but the less strict attitude demonstrated there had been said to be inappropriate in Solomon Islands in the judgments in Philip Hagataku v. Regina cited above and earlier in DPP v. Maesala, [1988/89] SILR 145 and Peter Roko v. Regina, also cited above. Your case is a proper case for imposing a sentence of four years. However, by pleading guilty, you demonstrated remorse for what you did to your daughter. That sense of remorse was demonstrated by your co-operating with Police in their investigation and admitting the offence to them. This attitude is of course a sign of being honest and of your good character. You were prepared to be punished at the earliest opportunity but for the delay by the Police. Although you pleaded not guilty at the abortive trial in Auki in 1999, you did so on the ground that you believed the child delivered was not yours. You of course denied paternity. That is not a defence in law in incest trials. The delay by the Police is about ten years since you committed the offence of incest. On 16th April 2004, you were committed for trial on a charge of murder relating to the death of the foetus delivered by your daughter. There was no evidence to sustain the charge of murder and you were acquitted. Apart from the problems caused by the ethnic tension as from 1999 onwards, the Police have offered no explanation for the delay in your case. I have read the medical report on you by Dr. Vicky Lindemann. The appropriate description of you is that you are a disabled person as a result of the stroke you suffered in 2001. Your case is rather different from the case in Rebini v. DPP cited above where the prisoner being a polio victim and knowing about his own disability went ahead and committed incest against his daughter. You however had committed incest against your daughter about four times but you were charged with one count of incest only. However, that is not your fault. Your guilty plea and being of good character combined has earned you a reduction of one year so that three years imprisonment is the term of your imprisonment. However, the inordinate delay in your case will obviously earn you a further reduction. In Dalo v. Regina [1987] SILR 43, Ward, C.J. affirmed the position that delay was a factor in reducing sentence. At page 44 of the judgment, His Lordship said-

"...Where magistrates find that there has been serious delay and no reasonable explanation is given, they should consider reducing the sentence very substantially because of the aggravating effect of a sentence imposed long after the offence..."

Serious delay is a matter almost bordering on the abuse of process and in contravention of section 10 of the Constitution which guarantees a fair trial within a reasonable time. I will reduce the three years by six months. A further mitigating factor is your medical condition. It is not in dispute that you cannot move about as an individual in the prison at Rove without the help of others. I do not think the other inmates there, out of kindness, would continue to assist you as before. They probably would but that is not their duty and you would not serve any useful purpose any better than simply being a disabled inmate drawing on extra resources to make your life bearable in detention. I will further deduct six months from the remaining two years and six months. The remaining two years will the term of imprisonment I impose on you. I sentence you to two years imprisonment to run from the date you went into custody in the Rove Prison. I order accordingly. I understand that you went into custody on 1st January 2004. The following comments do not concern you but are important reminders to all Crown prosecutors.

In Regina v. Henry Suumania, Criminal Case No. 313 of 2003, in the judgment delivered on sentence on 11th November 2004, I commented on the proper practice in proving previous convictions of persons already in possession of criminal records with the police. In this jurisdiction, the correct practice is set out in section 125 of the Criminal Procedure Code Act (Cap. 7), (the CPC). It is important for the prosecutor to comply with this section for the purpose of sentencing a person who has a relevant previous conviction. In Moffat Pasikale v. The Queen, Criminal Case No. 090 of 2003, I commented upon the inadequate way in which the Crown Prosecutor presented the facts to the Court, following a guilty plea to a charge of defilement. Apart from this, there is also a tendency at times for Crown Prosecutors simply to hand up to the judge the written facts without reading them out loudly to the judge so that the accused is able to hear the facts being stated against him and members of the public sitting in court can likewise hear the same facts and appreciate that justice is being administered by the courts openly. The principle of open justice goes back many centuries. A quote from the court which tried Lieutenant Colonel Lilburne in 1649 embodied the principle of open justice and expressed in this way-

"...by all laws of this land all courts of justice always ought to be free and open for all sorts of people to see, behold and hear, and have free access unto, and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred, and guarded with armed men...".

(See page 16 of Reform, A Journal of National and International Law Reform, Media and the courts, Summer 2004/5 ISSUE 85). At page 235, John Sprack in Emmins on CRIMINAL PROCEDURE, Fifth Edition, 1992 explains what is expected of a prosecutor, following a guilty plea by the accused-

"...If the offender pleads guilty, on the other hand, it is prosecuting counsel’s duty to summarise the facts of the offence. He does this partly to assist the judge, partly to establish the prosecution version of how the offence was committed, and partly so that the public may know what occurred and form their own views on the justice of the sentence passed..."

The last reason in this quote is about the importance of open justice in the courts. The prosecutor must present the facts openly and audibly to the judge.

The learned author continues-

"...In summarizing the facts, counsel makes use of copies, given to him in his brief, of the statements...made by the prosecution witnesses for the purpose of committal proceedings. He explains how the offence was committed, mentioning facts especially relevant to its gravity- e.g. if it was an offence of theft, he tells the judge the value of the property stolen and the amount which has been recovered; if it was an offence of violence, he recites the injuries suffered by the victim; if it was an offence when in a position of trust, he describes the position held by the offender. He goes on to describe the arrest of the offender and his reaction when asked about the offence. If the offender was immediately co-operative, admitting his guilt to the police, it is a point in his favour which may result in the sentence being lighter than it would otherwise have been. Therefore, prosecuting counsel should acknowledge, if it be the case, that the offender did frankly confess to the crime. If there was a formal interview with the offender at the police station, counsel could either read out the record of it in full, or, more usually, summarise its contents and leave the defence refer to it in more detail if they so wish..."

So, clearly the prosecution counsel has to be careful that when presenting the facts to the judge, does not omit relevant facts. This is important in the sense that any omission of relevant facts may deprive the judge of a full appreciation of the all the relevant facts so as to enable the judge to pass an appropriate sentence, taking into account all the circumstances of the case.

F.O. Kabui
Puisne Judge