R v Naidi [2019] SBCA 5; SICOA-CRAC 45 of 2018 (12 April 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	R v Naidi
Citation:
Decision date:	12 April 2019
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Maina J)
Court File Number(s):	CRAC 45 of 2018
Parties:	Regina v Vavini Naidi
Hearing date(s):	29 March 2019
Place of delivery:	High Court of Solomon Islands, Honiara
Judge(s):	Goldsbrough P Ward JA Wilson JA
Representation:	Mr. B Ifuto’o for the Appellant Ms. S Ramosaea for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Juvenile offenders Act, Penal Code, s206
Cases cited:	Patterson Runikera v DPP, Roni v R, R v Joyce, R v Emmanuel, Irobako v R, Katea v R
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-8

JUDGMNET OF THE COURT

1. This is an appeal against the severity of the sentence imposed for an offence of infanticide committed by a fifteen year old girl

The facts

2. The appellant was a schoolgirl living with her parents in a village in the Western Province. She began a sexual relationship with her boyfriend and became pregnant when she was fourteen years old. Concerned that her family would be angry with her, she did not tell anyone she was pregnant and left school. Nevertheless, her mother knew. She had her fifteenth birthday while she was pregnant.
3. On 26 December 2008, the appellant thought she was about to give birth. She set out alone to walk to the seaside. On the way, her waters broke. When she got there, she sat down because she was in labour pain. A female baby was born alive when she stood up. She separated the baby from the placenta by hammering the umbilical cord with a stick. The placenta was delivered later. She carried the baby to a pool of seawater where she placed her under some stones. The baby drowned.
4. The appellant returned home exhausted. She told her mother what she had done in response to her mother’s questioning.
5. A search conducted shortly afterwards found the baby’s body. A nurse at the local clinic examined the body, which was that of a full term female infant, 2.6 kg in weight and 44 cm in length.

Criminal proceedings

6. Police interviewed the appellant two days after the offence. However, it was not until 7 January 2011 that they charged her with infanticide under s 206 of the Penal Code [cap. 26].
7. The delay of over two years in laying the charge was not explained. The matter was mentioned before a Magistrate’s Court on 25 July 2011 and again on 12 September 2011. The appellant failed to appear on subsequent mention dates, and a warrant for her arrest was issued on 30 December 2011. The warrant was not executed, and the court proceedings lay dormant from 2012 until late 2017. For more than five and a half years, the police appear to have taken no steps to locate the appellant, and she appears to have made no endeavour to contact the police or the court or her legal representative.
8. The appellant appeared in the Magistrate’s Court on 8 November 2017 in answer to a summons. The warrant was withdrawn. Thereafter, the matter proceeded in a relatively smooth fashion through a short form preliminary inquiry on 20 March 2018, when she pleaded guilty and was committed to the High Court for sentence. She appeared for sentence before the High Court sitting in Gizo on 5 December 2018.
9. By that time, the appellant was a 25 year old woman, who was married with three children. Unbeknown to her counsel and the court, she was pregnant with a fourth child. She had no criminal history before or after the infanticide. No expert psychiatric evidence was put before the court.
10. A person guilty of infanticide may be dealt with and punished as if guilty of manslaughter, for which the maximum penalty is life imprisonment. The Judge imposed a sentence of one year’s imprisonment, suspended after six months, for an operational period of one year.
11. The appellant was in custody from 5 December 2018 until 25 February 2019 (a period of almost 12 weeks), when she was released on bail pending appeal.

Sentencing remarks

12. The sentencing judge properly described infanticide as a very serious offence. As his Lordship said, it involves depriving an innocent child of the right to life.
13. Counsel who appeared at sentence agreed that the appellant’s conduct in hiding the baby in the pool of water was a circumstance of aggravation, and his Lordship treated it as such. As mitigating factors, his Lordship took into account the delays in charging the appellant and in the court’s final disposal of the matter, and the public criticism, gossip and other social pressures she had experienced and might continue to experience because of what she had done. He referred to the sentences for infanticide imposed in two other cases, and concluded his sentencing remarks with the observation –
    • This is a non-contested case but its seriousness prevails and Defendant must be told the importance of life.

Grounds of appeal

14. The appeal was brought on a number of grounds which we will address in this order -
    • (a) that the sentencing court placed insufficient weight on the appellant’s age at the time of the offending;
    • (b) that the sentencing court placed insufficient weight on the delays in charging the appellant and prosecuting the charge;
    • (c) that the sentencing court placed insufficient weight on the appellant’s early plea of guilty;
    • (d) that the sentencing court placed insufficient weight on the appellant’s personal circumstances; and
    • (e) that the sentencing court did not take account of the appellant’s being a victim of defilement.
15. His Lordship did not refer to the appellant’s age at the time of the offence, which was a significant mitigating factor. Nor did he refer to the Juvenile Offenders Act [cap. 26] or the principle of imprisonment being a sentence of last resort in the case of a juvenile offender.
16. Because the appellant was aged 15 years at the time of offending, she should have been sentenced pursuant to the Juvenile Offenders Act [cap.26]. Under s 12(2) of that Act, no “young person” (that is, someone aged between 14 and 18 years) should be sentenced to imprisonment if he or she can be suitably dealt with by one of the alternative means provided in s 16. While those provisions are apt for the punishment and rehabilitation of juveniles rather than adults, his Lordship erred in not expressly considering the appropriateness of a non-custodial sentence.
17. His Lordship took into account “the delay for justice to the accused” but erred in failing to say what allowance he made for it. In Patterson Runikera v DPP (Unreported, Criminal Appeal Case No 14 of 1987, page 2) Ward CJ remarked
    • Delay generally affects the sentence in three ways. It increases the anxiety of the accused man who has it "hanging over him" for that time. This will obviously only apply from the time of discovery of the offence – any delay before that is entirely in the hands of the offender. The second factor relates to the plea because any person must realise that, the greater the delay, the more chance the prosecution will be unable to prove their case. Thus, a plea of guilty entered with that knowledge becomes a strong mitigating factor. Finally, it gives the offender a chance, denied to many accused, of showing that he really does intend to reform and stop offending.
18. In the present case there was no explanation for the delays. The delay in prosecuting the charge once it was laid was unreasonable. On the other hand, those delays provided an opportunity for rehabilitation and integration into the community, which are particularly important goals in the case of young offenders. By the time of sentence, the appellant had matured into a responsible, law abiding citizen.
19. The appellant pleaded guilty when first called on to plead. A plea may be an indication of genuine remorse. It may have utilitarian value in savings to the criminal justice system. Sometimes it may relieve a victim from having to give evidence. On the other hand, it may come about through the existence of overwhelming evidence or a plea bargain, as in Roni v R [2008] SBCA 8. Ultimately, the extent of any allowance for a guilty plea is a matter for the sentencing judge. The timeliness of the plea is relevant to the extent of the allowance.
20. His Lordship acknowledged the plea of guilty but made no express allowance for it. He erred in not expressly stating what, if any, allowance he made for it and why.
21. His Lordship did not refer to the appellant’s personal circumstances at the time of sentence. In not doing so, he failed to take account of the rehabilitation she had undergone.
22. In his written submissions to this court, counsel for the appellant argued that the appellant was a victim of crime, in that the person who had sexual intercourse with her when she was fourteen years old committed the offence of defilement under s 143 of the Penal Code. He submitted that the sentencing judge should have taken this into account as a mitigating factor.
23. We reject that submission. There was no evidence about the circumstances of the intercourse that led to the pregnancy, and the court could not speculate on whether a successful prosecution might have been brought against her boyfriend. Further, this issue was not raised before the sentencing judge.
24. Deterrence, both personal and general, can be an important factor in sentencing. This was not expressly considered in his Lordship’s sentencing remarks. His concern that the appellant “be told the importance of life” suggests that he may have thought personal deterrence was necessary. However, given the trajectory of the appellant’s life since the offence in 2008, the need for personal deterrence was not nearly as significant as the need for general deterrence. His Lordship did not directly address general deterrence, although he described infanticide as a very serious offence, for which the maximum penalty is life imprisonment.

Comparative sentences

25. The sentencing judge referred to the sentences imposed in two other cases of infanticide R v Irobako [1992] SBHC 30 and R v Katea [1997] SBHC 30. His Lordship imposed the same sentence as that in Irobako despite that being a sentence after trial of someone who was not a juvenile. In Katea the offender had subsequently given birth to another child. She was remorseful and pleaded guilty. The sentencing judge was concerned not to cause hardship to the second child, but still felt it necessary to impose two months’ imprisonment.
26. Two further cases were referred to on appeal – R v Emmanuel [2010] SBHC 21 and R v Joyce [2017] SBHC 125. In Emmanuel the offender was a very young woman who became pregnant in Honiara, where her parents had sent her to live with relatives while she completed her education. She was very remorseful and pleaded guilty at the first opportunity. After taking account of the 35 days she had spent in pre-sentence custody, the court sentenced her to one month’s imprisonment. In Joyce the offender was a young married woman living in difficult domestic circumstances when she killed her newborn child. She pleaded guilty to infanticide. She was sentenced to twelve months’ imprisonment but released immediately because she had served more than that in pre-sentence custody.

Disposition

27. The sentence imposed by his Lordship should be set aside, and this court should resentence the appellant.
28. Had she been an adult when the offending occurred, a sentence of twelve months’ imprisonment would have been an appropriate starting point. There should then have been a small increase for the circumstance of aggravation (say, one month) and allowances for the delays (say, two months) and the guilty plea (say, another three months). It would have been open to the sentencing judge to suspend the imprisonment partially on account of the rehabilitation she had undergone by the time of sentence.
29. However, because she was a juvenile, the starting point should have been a non- custodial sentence. Further, her youth should have been taken into account as a mitigating factor. This could have been done by wholly suspending the term of imprisonment.
30. The appellant served almost twelve weeks in actual incarceration before she was released on bail pending this appeal.
31. In the circumstances the appeal is allowed. The appellant is sentenced to six months’ imprisonment, wholly suspended after the number of days she has actually served, for an operational period of one year.

Goldsbrough P
Ward JA
Wilson