Director of Public Prosecutions v Maesala [1989] SBHC 9; [1988-1989] SILR 145 (22 August 1989)

[1988-1989] SILR 145

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 39 of 1988

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAESALA

High Court of Solomon Islands
(Ward C.J.)
Criminal Appeal Case No. 39 of 1988

Hearing: 15 August 1989
Judgment: 22 August 1989

Appeal against sentence - incest - wholly suspended sentence rarely appropriate - sentence of six months imprisonment too lenient.

Facts:

The Respondent pleaded guilty in the Magistrates Court to five charges of incest with his younger sister and was sentenced to six months imprisonment, suspended for two years. The Respondent had left home when his sister was two or three years old and only returned when she was about 18 years old. She had no memory of him as a brother and neither had they the feelings usual between a brother and sister.

The DPP appealed against those sentences on the grounds that the Learned Principal Magistrate was wrong in imposing a suspended sentence, and the sentence of six months imprisonment was too lenient.

Held:

(1) The English approach of short terms of imprisonment, suspended sentences and probation for cases of incest between adult brother and sister is not appropriate in Solomon Islands because religious and social conventions are far stricter in Solomon Islands and also because in a small community there will be far more public knowledge and involvement by others.

(2) The Court attached far too much importance to the fact that the Respondent and his sister, because of their long separation, did not regard each other as brother and sister. The Respondent knew when he returned home that he was the girl’s brother and when she started to develop a particular attraction to him he failed to stop it until sexual intercourse took place and she became pregnant. These should have been regarded as aggravating circumstances.

(3) A total sentence of six months imprisonment for the five charges of incest was manifestly inadequate.

(4) In cases such as this total suspension of the sentence is rarely appropriate. The Respondent had allowed the relationship to develop until sexual intercourse took place and only stopped when she became pregnant. A suspended sentence of six months would not be an effective deterrent.

Appeal allowed but because of the long delay in bringing the appeal it would be harsh and oppressive to order the Respondent to start a sentence of imprisonment. Accordingly the sentence was varied to one of two years imprisonment on each count concurrent, all suspended for two years.

F. Mwanesalua, DPP, for the Appellant
J. Muria for the Respondent

WARD CJ: On 24 October 1988, the Respondent appeared before the Principal Magistrate in Auki and pleaded Guilty to five charges of incest with his younger sister contrary to section 56(1) of the Penal Code.

After obtaining a social welfare report, the Learned Principal Magistrate sentenced him to six months imprisonment and suspended the sentence for two years.

The Director of Public Prosecutions appeals against those sentences on the grounds:

1. The imposition of a suspended sentence in the case by the Learned Principal Magistrate was wrong; and

2. The sentence of six months imprisonment imposed by the Learned Principal Magistrate was too lenient.

The charges all related to August 1987 when the girl was thought to be 18 years of age. The Respondent’s age is uncertain but would appear to be at least five years older and possibly more.

He had left the village when she was two or three years old and had remained away until 1986. Thus, on his return, she had no memory of him as a brother and neither had they the feelings usual between a brother and a sister. The Social Welfare Officer and the Public Solicitor put this forward as a reason why the family relationship did not have such an inhibiting effect as is usually the case.

When sentencing, the Learned Magistrate described the case as an -

“Unusual case of incest which, exceptionally, does not call for immediate custodial sentence due to particular history of this brother/sister relationship and absence of aggravating features. Must be marked appropriately however and a disincentive to repetition established. Suspended sentence of imprisonment appropriate.”

Earlier he had been referred by the Public Solicitor to the comments on this type of incest in Thomas on Sentencing. It is true that, in England, incest between brother and sister who are adults is not, in itself, regarded as particularly serious. Short terms of imprisonment, suspended sentences and probation are all frequently ordered in such cases. I cannot accept such an approach is appropriate in Solomon Islands. Religious and social conventions here are far stricter and more generally observed than they are now in England. The community here is much smaller and that also results in far more public knowledge and involvement by others. Thus, whereas the courts in England regard it largely as a private matter between the two adult parties, here it is inevitably much more a matter of public concern.

In this case, the matter went much further.

Whilst the exact age difference between the two is unclear and may not be great the difference was exaggerated by the circumstances. The man had lived in Honiara away from the village environment for some time. He had then worked in the Western Province for some time before returning to his village. He told the Social Welfare Officer that in the West, he had sexual intercourse with more than one girl. Compared to the younger sister who had remained in a small village community of only four houses, he was sophisticated and worldly.

Some emphasis was placed by the court on the fact that he did not have the same feelings as he would have had if he had lived with her as she grew up. They did not, it was stated, regard each other like sister and brother.

I accept that must make them more likely to develop carnal feelings for each other and the court was right to take that into account. Where I feel the court went wrong was to attach far too much importance to this fact and failed to look sufficiently at the remaining factors. This was not a case of meeting a girl, falling in love and then discovering their relationship. Here the man returned to the village in 1986. He knew when he arrived that he was the girl’s brother. During that period she clearly started to develop a particular attraction to him. Instead of stopping it, he let it develop until sexual intercourse occurred. The first case of sexual intercourse did not occur until August 1987 at least eight months after his return to the village. Once sexual intercourse occurred, it was repeated frequently until, in October, the girl discovered she was pregnant.

Thus the lack of the usual relationship between brother and sister as they grew up helps to explain the offence but it does not excuse it.

For these reasons, I find the Magistrate’s assertion that there was an absence of aggravating circumstances puzzling.

The court was told that the Respondent has recently been able to return to the village to live. If that is so, he is extremely fortunate they are so forgiving. It may mean that both he and his sister will be able to put this matter behind them. I cannot accept in such a small community that the only innocent party, the child, will be able to do likewise.

The Learned Director of Public Prosecutions suggests the sentence of six months imprisonment was too lenient. If that is the only sentence I must agree. However the sentence was simply recorded as “six months imprisonment”. The Magistrate does not specify if this is the sentence for each offence or all offences in aggregate. As it stands, if it is for each offence without a specific direction that they should be served concurrently, the sentences must be taken as being consecutive which would give a total sentence of two years six months. However if that had been the case I am sure the Magistrate would have recorded it as two years six months and not as six months. I must assume the Learned Magistrate either intended to order six months on each count to be served concurrently or failed to address his mind to the fact he was sentencing for five separate charges or that the sentence on each charge was twelve months imprisonment.

I do not need to decide which occurred here because, on any basis, a total sentence for such a case of six months imprisonment is manifestly inadequate.

I allow the appeal on the second ground and substitute a sentence of two years imprisonment on each charge concurrent with each other making a total sentence of two years.

Having decided the sentence, the Learned Magistrate was entitled to consider whether it was appropriate to suspend it. In cases such as this, I feel it is only very rarely that total suspension of the sentence will be appropriate. This man had, over a considerable period of time, been undeterred by the knowledge of the relationship and how wrong it was to let it develop. He stopped not because of fear of the consequences in the community but because of the fact that the girl became pregnant. I find it hard, therefore, to feel a suspended sentence, especially of such a short term as six months, is likely to be an effective deterrent.

In those circumstances, I would have allowed the appeal on the first ground. However, the history of the case prevents me doing so.

The case was brought before the Principal Magistrate more than a year after the last offence. On 10 November 1988 the Director of Public Prosecutions appealed against sentence having been given leave to extend the time for appeal. The appeal was listed on 13 February 1989 but the Appellant told the court he had not been informed it had been listed. It was adjourned to 3 July but, on that date, counsel for the Appellant said he had no knowledge of the case.

It was therefore only heard on 15 August almost a year after the court hearing. I feel that after such a delay it would be harsh and oppressive to order the Respondent to start his sentence of imprisonment now. Had it been done at the first reasonable opportunity, that would not be a relevant consideration but the delay that has occurred is such that I shall not now make such an order. Thus I do not interfere with the order that the sentence be suspended.

The sentence is now one of two years imprisonment on each count concurrent, all suspended two years.