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Regina v Malasa [2010] SBHC 8; HCSI-CRC 84 of 2010 (1 April 2010)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

REGINA

V

DORCAS MALASA

Criminal Case No: 84 of 2010

Date of Hearing: 26th March 2010
Date of Ruling: 1st April 2010

For Crown: Mr. J. Seuika
For Appellant: Mr. P. Cavanagh/Mr. Gray

APPEAL

Naqiolevu J:

This is an appeal by the applicant who was convicted in the Central Magistrate Court on the 9th of September 2009 of the following offences, and sentenced to 3 years imprisonment to be served concurrently to each other.

1. 7 counts of Forgery contrary to Section 341 (1) of the Penal Code.

2. 53 counts of Obtaining benefit by False Pretence contrary to Section 308 (a) of the Penal Code.

Grounds of Appeal

1. The grounds of appeal are that the Learned Magistrate erred by failing to take into account properly, or at all, the fact that the appellant was pregnant at the date of sentence.

2. That in the circumstances the sentence imposed by the Learned Magistrate was manifestly excessive.

3. Counsel submit the appellant’s trial was conducted on the 4th of September 2009 and adjourned to the 7th of September for the handing up of written submissions. It was then adjourned to the 9th of September for judgment.

4. Counsel submit immediately after judgment, submission on sentence was received and the matter adjourned to 2.00pm for sentence. Immediately before sentence was handed down Ms. McSpedden who appeared for the appellant indicated to the court that she had received instructions that the appellant was pregnant. Reliance is placed on the affidavit of Linda McSpedden sworn on the 22nd of March 2010.

5. Counsel submit the Learned Magistrate handed down his typed judgment and there was no written record of what His Worship said in relation to the aspect of the pregnancy. His Worship did not vary the sentence in his typed judgment in light of the information that the appellant was 3 months pregnant. To the best effort the appellant can indicate, His Worship dealt with that information as diposed by Ms McSpedden in her affidavit, that is, by referring to the fact that the Prison has facilities for the appellant.

6. Counsel assert that arrangements for the accommodation of mothers with an infant in prison are as deposed in the appellants affidavit of bail application in support of bail, filed in the High Court. See Criminal Case No. 86 of 2010 and sought to be relied on herein.

7. Counsel assert the relevant factors that ought to have mitigated in favour of reduction of the appellant’s sentence are as follows:

a) the child will spend its first six months in prison, deprived of the opportunity to bond in a normal family environment with its father and mother and siblings. It is the mother, not the child, who has been convicted and it cannot be argued that the tender age of the child is such that no lasting psychological or developmental would be sustained.

b) the requirement that the child be sent out from prison and separated from its mother after six months is potentially physically damaging to the child, necessitating that it be weaned at this stage rather than later.

- the risk that the child will suffer emotionally and psychologically with difficulties in re- bonding with the appellant at the time of the appellant’s present anticipated release; release date being September 2011.

8. Counsel submit that having regard to all the circumstances, the sentence imposed are excessive.

9. Counsel assert the prevailing circumstances at Rove Women’s Prison are as diposed by the appellant. Apart from the first month of her term the appellant has been the only prisoner, serving a term of virtual solitary confinement. This is the circumstances where she is suffering additional stress at the uncertainty of her ability to remain with her baby. This, it is alleged harsher than the usual punishment especially for a first offender and His Worship ought to have specifically discounted sentence having regard to this factor.

10. Counsel submit whilst the amount of money in question, the number of offences, and the circumstances of the offences, admittedly demand a custodial sentence, additional mitigating factors apart from those argued above warranted consideration for a suspended sentence or a significantly reduced term of imprisonment.

11. Counsel assert that in comparing the authority of Ashley-v-Regina([1]) where the court saw fit to reduce a term of 2 years imprisonment to four months and four days, which was effectively time served and the sentence actually served was one sixth of the original sentence. And the case of Pokana-v-Regina([2]) where the appellant would serve her sentence when the accused was pregnant. The case can be distinguished because the term of imprisonment was only six months.

Crown Submission

12. Crown counsel in response submit that there is no reasonable explanation given for the delay in appealing, therefore this application should be refused as it is not in the interest of justice to hear the appeal.

13. Counsel submit if the court disagree with this submission, the crown argue in the alternative that the sentence is not excessive in all the circumstances of the offending.

14. The Learned Magistrate in his sentencing remark stated that he had taken into consideration the fact the appellant is a first offender and had no previous conviction. He said he had just been told that the appellant was three months pregnant and in his view that should not affect the length of sentence he was minded to impose.

15. Counsel submit the sentence is within the normal tariff for such offending in this jurisdiction. Counsel cited several authorities in this jurisdiction and submit 3 years imposed in this case is well within range for such offending.

16. Counsel assert in relation to the physical environment of imprisonment being unsuitable for a pregnant woman, such consideration should not deter the court from imposing a custodial sentence in such serious offending, but may affect the length of sentence imposed. The Learned Magistrate was of the view that the appellant’s pregnancy should not affect the 3 years imprisonment he decided to impose on her.

17. Counsel submit in Tina Pokana-v-R([3]) the court was satisfied that the system in place in Rove Central Correctional Centre for a female prisoner with a child which are outlined in the Standing Order and a policy document are such to ensure the interest of the child will be protected. The court considered on the basis of the Tina’s case, pregnancy is not a consideration for suspending a sentence.

18. Counsel submit that since the Ashley’s case was decided the Corrective Institution made appropriate policy relating to mother and child available in prison custody.

Enlargement of Time

19. The court after considering the submission by the appellant for the enlargement of time to file the appeal and after considering the objection by the crown. The court find the appellant has shown ‘good cause’ to enlarge the time in which the appeal is to be filed and order accordingly.

Principles of Sentencing

20. The court in considering the appeal is mindful of the principal of law that this court will only interfere with sentence imposed by the lower court, if the sentence is wrong in principle.

21. The court is of the view the Learned Magistrate at the point of sentencing the appellant who was in fact pregnant, and at that point should have addressed the issue to enable him to properly take this new factor into consideration before sentence. The Learned Magistrate made a cursory remark, that he notes that counsel have indicated that the appellant is expecting a child and no doubt authorities has facilities to deal with such events. It is clear that the Learned Magistrate had not applied his mind to this eventuality, if he did he would have considered an appropriate sentence.

22. The court while considering the nature and the seriousness of the offence and the amount involved, and indeed the breach of trust, consider in the circumstances a short sharp sentence would have been appropriate, which would also take into consideration the imminent birth of the child.

23. The court whilst accepts that the prison facilities have been to a certain extent upgraded to cater for such situation as submitted by counsel. The facilities or the environment in which the child will be brought up at the initial stage is not conducive to such an event. The court in this regard adopt the principle of law enunciated by Mwanesalua J in the case of Ashley-v-R([4]) where His Lordship said,

"But there is no mention of any privileges in law for female prisoners who return to prison with their children after their birth at the hospital. It seems to this court such female prisoners would need more than standard food, clothing and bedding issued for use of single female prisoners.

I say this because female prisoners as other women outside the prison are the source of life. They are the root of human development. The silent force that propels the family. A baby and its mother would need care after returning to prison from hospital. There must be adequate post-natal care provide for them. The child among other things must be provided with an environment where "peace", "freedom" and "motherly care" can be given to it"

24. The court has taken into consideration the authority cited by the crown on the principle to be applied. The court however distinguish the authority of Pokana-v-Regina([5]) from Ashley’s case where clearly the sentence imposed of six months custodial sentence is much less than what was imposed in this case.

25. The court in considering the comparative analysis of sentence imposed by the courts in this jurisdiction is of the view that a custodial sentence is appropriate given the nature and the seriousness of the offence. The court however in this instance is of the view there are compelling reasons to impose a short custodial sentence, to ensure a clear message for this type of offence will attract a custodial sentence to act as a deterrence.

26. The court in the circumstance after considering the submission by the appellant and the cited authorities advanced and after considering the respondent’s submission and the authorities advanced is of the view that a sentence that would reflect the nature of the offence and the prevailing circumstances would be appropriate. In this regard the court consider a sentence of two years to be appropriate but will partly suspend the sentence and taking into consideration the period spent in custody, order the appellant be sentenced for two years imprisonment suspended for two years

ORDER

1. The appeal is allowed.

2. The sentence imposed by the Central Magistrate Court on the 9th of September 2009 is hereby substituted for two years imprisonment suspended for two years.

3. Order the immediate release of the appellant from custody.

THE COURT

^[1] [2006] SBHC, 129
^[2] [2008]SBHC, 99
^[3] Crim Case No. 115 of 2005
^[4] [2006] SBHC, 129
^[5] ibid