Regina v Waeho [1997] SBHC 27; HC-CRC 034 of 1996 (4 June 1997)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No 34 of 1996

ter">REGINA

v

DERICK WAEHO

Court: LUNGOLE-AWICH, J

Hearing: 4th June 1997 - Sentence: 4th June 1997

Counsel: J Faga for the Prosecution -very for the Accused

SENTENCE

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LUNGOLE-AWICH, J:

Accused Derrick Waeho has been convicted of the offence of defilement under section 134(1) of the Penal Code. Apart from the more usual mitigatory facts that he is now only 18 years old and has pleaded guilty, there are extraordinary mitigating facts in his case: He was himself only 12 years old; only slightly older than the victim or complainant, if I may describe her so, who was nearly 12 years at the time of the incident. She was born on 5.7.1979. The incident took place in April 1992. There is no suggestion that the incident has had adverse effect on her. She is now married and has 2 children; none of them a child from the incident the subject of this case. She was the prime mover, she invited the accused, her age mate, to the sexual intercourse. She had sexual experience before, while accused, himself a young person of 12, had no experience of sexual intercourse. At the time they lived in the same house. Today accused still attends school and has been of good character. These are extraordinary mitigatory considerations.

I shall also take into account that it took 6 years for the case to be tried. Further I take into account, section 14 of the Penal Code, providing for criminal responsibility or absence of it during immature age. Accused at the age of 12 years at the time of the offence was just one year older from the age of under 12 years which is the dividing age, between legally immature and mature ages for purposes of criminal responsibility. Upto the age of under 8 years a person is not criminally responsible, that is liable for his actions. Between the ages of 8 and 12, he would only be criminally responsible if he was found to have capacity to know that he ought not to do the act or omission upon which the offence is based. Although that defence is not open to accused, it is important to take into account in sentencing that he had just crossed the dividing line. I agree with the submission of learned counsel Mr. Lavery on the point. After accused had just crossed the line, he met with great temptation; the invitation by the complainant to the sexual intercourse. The complainant was, unlike the accused already experienced in sexual intercourse. Moreover, their ages, for practical purposes may be regarded as the same, a very important mitigating factor. Another law to bear in mind only for purposes of mitigation is that under the age of 12, a male is regarded as incapable of having sexual intercourse. Accused may have been only a few months in the age of 12 years .

These extraordinary circumstances of the commission of the offence and the extraordinary mitigatory personal facts of the age of the accused then and now, together with those other mitigatory factors I have mentioned, make it pointless to impose custodial sentence whether of imprisonment or of supervision. I have considered fine. Accused of course would not be able to pay and would end up serving a prison term for default to pay. I have considered ordering that his brother pay the fine. I decided against that because I have not had opportunity to hear his brother about his means.

In the end it is my view that accused be discharged under section 35 of the Penal Code and so I order. He is admonished to keep good conduct.

Now that I have decided to discharge him under section 35 of the Penal Code I am required not to proceed to conviction although the offence has been proved. It has been proved by accused's unequivocal plea of guilty which I have already entered. I accordingly revise that part of my notes which states that I convicted the accused. I am required instead to dismiss the charge either conditionally or unconditionally. I have decided to dismiss the charge conditionally. The condition is that he does not commit sexual offence in the next 2 years, and to generally keep good conduct during the two years. Of course it is advised that he keeps good conduct even after the 2 years.

It is to be noted that section 35 of the Penal Code of Solomon Islands does not provide for discharge of offenders to be applicable only to categories of offences or offenders. It requires that the court, upon deciding to discharge the accused, proceed to dismiss the charge. Generally in our law, only "a person convicted," may appeal. In my view, when a charge is dismissed there is no appeal by the accused. Under section 20 of the Court of Appeal Act, No. 10 of 1978, "a person convicted," may appeal without leave in certain circumstances and with leave in others. Under section 20A, only the Director of Public Prosecutions may appeal against acquittal (which is dismissal of a charge) or against sentence which he considers to be manifestly inadequate. Under section 35 of the Penal Code, accused has not been convicted; he is not, "a person convicted." In my view, he has no right to appeal without or with leave, either against the sentence of discharge and or the conditions imposed. It appears to me that it might well be just to give to an accused dealt with under section 35, right of appeal against conditions imposed in a conditional discharge, or against terms of ancillary orders made in connection with the charge, such as orders for, forfeiture of belonging, compensation, and disqualification. It is possible to encounter conditions imposed that result into unwarranted or particular hardship, which the court might have overlooked. If accused is to be given right to appeal in those instances, it will have to be by legislation because of the provisions of section 35 of the Penal Code and sections 20 and 20A of the Court of Appeal Act.

Master Derick Waeho has no right of appeal in this case.

Dated this 4th day of June 1997

At the High Court, Kira Kira

Sam Lungole-Awich,
Judge