Maesufia v Reginam [1992] SBHC 63; HCSI-CRC 11 of 1992 (10 June 1992)

CRC 11-92.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 11 of 1992

SAM SADE MAESUFIA

-v-

REGINAM

High Court of Solomon Islands
(Muria ACJ)

Criminal Case No. 11 of 1992

Hearing: 6 June 1992
Judgment: 10 June 1992

A. Radclyffe for the Appellant
R. B. Talasasa for the Respondent

MURIA ACJ: The Appellant had been charged with one count of Incest contrary to section 156(1) of the Penal Code. The Appellant plead Not Guilty and the matter was heard by the learned Chief Magistrate who found the Appellant Not Guilty of Incest but convicted him on two counts of defilement contrary to section 135(1)(a) of the Penal Code in the exercise of the powers under section 167 of the Criminal Procedure Code. Section 167 provides that:

“When a person is charged with an offence under section 156 of the Penal Code and the court is of opinion that he is not guilty of that offence but that he is guilty of an offence under one of the section 134 and 135 of the Penal Code, he may be convicted of that offence although he was not charged with it.”

Mr. Radclyffe contends that the Appellant was charged with only one offence of incest and as the evidence did not support that offence but only supported the conviction of an offence under section 135(1) (a) of the Penal Code, it was not open to the learned Magistrate to convict the appellant of two offences under section 135(1) (a) of the Penal Code. Mr. Radclyffe argues that section 167 of the Criminal Procedure Code is clearly aimed at one offence.

Mr. Talasasa however contends that as the evidence disclosed more than one offence of defilement the learned Magistrate was correct to convict the Appellant of, the two counts of defilement contrary to section 135(1)(a) of the Penal Code although he was not charged with those two counts.

The Penal Code and the Criminal Procedure Code are penal statutes and as such they must be construed strictly in a manner which is most favourable to the accused bearing in mind the overriding principle of dispensing justice. Thus I must interpret the words as Parliament chose to use when it enacted section 167 of the Criminal Procedure Code.

It will be observed that section 167 of the Criminal Procedure Code used the words “an offence” twice and “that offence” twice. Those words show that the section speaks of ‘an offence’ actually charged and ‘an offence’ which an accused person may be convicted of although he was not charged with ‘it’. The use of the word ‘it’ makes it even clearer that the alternate verdict relates to an offence. My reading of the section is that if a person is charged with one offence only, it is not open to the court to convict him of two offences with which he was not charged. Had Parliament intended that the court should have the power under section 167 of the Criminal Procedure Code to find a person guilty of more than one offence in the alternative, I have no doubt Parliament would have used appropriate words to effect its intention.

Thus in the present case I must quash the conviction and sentence in respect of one of the offences of defilement.

That Appellant further complained against the sentence of four and half years imposed on him as being manifestly excessive. The principles to be applied in an appeal against sentence are well set out in Saukoroa -v- R (1983) SILR 275 and applied in Berekame -v- DPP (1985/86) SILR 272, and Richard Selwyn -v- R. Crim. Case no. 25 of 1991 (Judgment given on 23/10/91).

It has been well settled principle of sentencing that the maximum sentence is to be imposed only on the worst cases.

In this case the Appellant admitted having sex with the victim. He pleaded Not Guilty to the charge of incest and he succeeded. He was, however, convicted of the offence of defilement which on his own evidence and in his cautioned statement he admitted. He paid substantial compensation for what he did. No doubt the publicity and shame associated with what he did are in themselves a form of punishment.

Generally in criminal courts, it is proper to take into account the punitive effect of matters such as shame associated with the disclosure of the matter to the accused’s family and relatives together with the publicity of his wrong doing. Strong traditional pressures upon the accused to pay compensation is an important form of punishment in a country such as Solomon Islands and must, in appropriate cases, be encouraged.

Whilst the Court must impose a punishment upon the Appellant to show society’s abhorrence of his conduct, I feel this case is not one that can be said to be among the worst cases of defilement as disclosed by the evidence. The sentence of four and half years imprisonment which is only 6 months below the maximum penalty for the offence, is manifestly excessive in the circumstances of the present case.

I feel the appropriate sentence bearing in mind the factors I have said above, should be one of two and half years.

The appeal is allowed. Conviction and sentence on one of the offences of defilement are quashed. Sentence on the remaining count of defilement is reduced to two and half years imprisonment.

(G.J.B. Muria)
ACTING CHIEF JUSTICE