Regina v Bwa'alu [2008] SBHC 37; HCSI-CRC 38 of 2008 (25 July 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No: 38 of 2008

REGINA

-V-

DAVID BWA’ALU

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Appeal Case No: 38 of 2008

Date of Hearing: 26th June 2008
Date of Appeal: 25th July 2008

For Appellant: Mr. T. Coates
For Respondent: Ms. G. Brown

APPEAL

Naqiolevu J: This is an appeal by the Crown against the Magistrates Court decision of the 5th of February 2008, in which the court imposed a concurrent sentence of 3 years for six counts of the offence of INCEST.

Appellant Submission

1. The Appellant’s case in essence is that the respondent was convicted of 6 counts of incest against his two daughters. One of the daughters conceived a child through the incestuous incident.

2. The appellant submit that the sentence imposed should have been made consecutive to take account of the offences against each victim.
   

3. The appellant maintains that the failure to at least accumulate the sentence in relation to the two sisters results in a situation where a person who has committed one offence, can commit other offences with impunity from further punishment.

4. The Learned Magistrate the appellant claim, by making the sentences concurrent has effectively not punished the respondent for the offences against the victim Elsie.

Respondent Submission

5. Counsel for the respondent in response submit the principle’s governing the exercise of appellate jurisdiction in reviewing a sentence are well settled, and the question is not whether the court would have imposed a different sentence to the one given, but whether there was an error in the exercise of the sentencing discretion in the court below.

6. Further, if the sentence is not merely arguably insufficient or excessive but obviously so, because for instance, the Judge has acted on a wrong principle or has clearly overlooked, or understated or overstated, or misunderstood some salient features of the evidence, the Court of Criminal Appeal will review the sentence but short of such reason, will not.
   

7. Clearly the Appellant, Counsel maintain, accepted that the Learned Magistrate appropriately took all matters of mitigation and aggravation into account.

8. Furthermore, consideration should have been given to the adverse effect of delay on the respondent, given he was interviewed and made admission in August 2005, but does appear to have been charged until September 2007.

9. Counsel for the respondent further claim, that the Crown Counsel’s comments on aspects of the compensation, fail to take into account what was before the Magistrate, and the submissions made by the appellant on sentencing. It also fails to take into account the customs of the area.

Principles of Law

10. It is clear that the Appellate Court’s discretion to interfere with the lower courts exercise of sentencing discretion, has been well and truly settled.
    

11. The authority for the proposition is the case of Berekame –v- DPP ([1]) where the court said

"A Court of Appeal will not interfere with the trial Judges’ discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because, for instance, the Judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient features of the evidence".

12. Clearly this court is loathe to interfere, or indeed will only interfere with the exercise of the lower courts sentencing discretion, where either or the above principle has not been given proper consideration by the Learned Magistrate.

13. The Learned Magistrate in his sentencing remarks took into account the mitigating factors which include the Plea of Guilty at the earliest opportunity, the previous good behaviour of the accused, his responsible position, his remorsefulness, co-operation with the police during the course of the investigation and the compensation paid to the relative of Elsie, for the birth of a child.

14. Furthermore the Learned Magistrate balanced these factors with the aggravating features of the offence. These are the breach of trust, the commission of the offence of incest on two daughters multiple time, the use of a knife causing physical pain to the victims, embarrassing the victims in the cultural context and the pregnancy as a result.
    
15. Sentence to Reflect Gravity of Offence
    

The court is of the view that whilst the Learned Magistrate has considered these factors, he has not given it the importance and the seriousness it deserves by fixing an appropriate sentence for each offence and then consider questions of consecutive or concurrent sentence bearing in mind the totality principles, or at least make an order to include a partial concurrent and consecutive sentence, for the multiple offence ([2]) In DPP v Grabovac, the court said

"In order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessary reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognized, though at all times avoiding the imposition of a "crushing" sentence".

([3]) In Pearce-v-The Queen the court said

"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality"

16. In the four occasion which he committed the offence against his young 14½ year old daughter, the respondent threatened her with a bush knife.
    
17. In the two incident against his second daughter aged between 21 and 23 years at the time, he also used a bush knife and threatened to kill her if she refuse to have sex with him, and as a result of the offence the daughter gave birth to a baby girl.
    

Range of Sentences

18. The range of sentence imposed by the courts in this jurisdiction for this type of offence has been varied given the circumstances of the offences. In the case of Kyio-v-R ([4]) the Chief Justice when referring to any length of any term of imprisonment said
    

"As to the question of length of time, that will depend on the existence of aggravating features such as (a) if the girl has suffered physically or psychologically from the incest (ii) frequency of the incest and period of time it has been committed (iii) where threats or violence had accompanied the offence (iv) if the offence is accompanied to the victim i.e buggery or fellatio (v) if the victim become pregnant thereby (vi) if similar offence had been committed against other girls, guidelines set out in the Attorney General’s Reference (No. 1 of 1989)

19. In the case of Fuilorentino-v-R ([5]) Chief Justice Palmer in considering sentence of 9 years and 6 months for an accused convicted of 14 counts of incest, where there was no evidence of violence, reduced the sentence to 5 years, given there is a delay of 9 years from the time of offending to sentence.

20. Clearly the Learned Magistrate has erred in the exercise of his sentencing discretion, and the court is of the view that he has understated salient features of the evidence by imposing reduced sentence for each count and making them concurrent.

21. The Chief Justice is clearly critical of this approach in the case of ([6]) Rocky Fuilorentino where His Lordship said,

"I am satisfied the presiding Magistrate committed error in the way sentence was imposed in each case. He imposed greatly reduced individual sentences and then made them cumulative to each other to achieve the desired sentence. Where there are multiple offences as was the case here, the court will ordinarily impose a proper sentence on each count. The court should then consider whether to make those sentences wholly or partially concurrent, rather than by an order for the cumulation of unnecessary reduced individual sentences. In certain situations it may be more appropriate to order that the sentences be made consecutive to each other to reflect the separate transactions or episodes which ought to be recognized, bearing in mind at all times though to avoid the imposition of a "crushing" sentence.

22. I urge Learned Magistrates to take cognizance of the principle of law to be properly applied in these circumstances, as enunciated by the High Court.

23. The court is of the view that the clear authorities in this jurisdiction has properly set out the range of sentence that should be imposed, to clearly reflect the societies abhorrence at this type of offence.

24. I am of the view that the proper course in his sentencing discretion should be to impose an appropriate sentence to reflect the gravity of the offence and only that it be partially concurrent and consecutive. Ward CJ, ([7]) in Bade-v-R said,

"When considering sentence for a number of offence, the general rule must be that separate and consecutive sentence should be passed for the separate offence. It is true to point out that a man who commits, say, five offences should receive a heavier sentence than a man who only commits one of them"

His Lordship went on to say,

The second occasion for modifying the general rule arises where the aggregate of sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case. Thus, once the court has decided what is the appropriate sentence for each offence, it should stand back and look at the total. If that is substantially over the normal level of sentence appropriate to the most serious offence for which the accused is being sentenced, the total should be reduced to a level that is ‘just and appropriate’ to use the test suggested in Smith v. R. [1972] Crim. L. R. 124. Equally, if the total sentence, although not offending that test, would still in the particular circumstances of the person being sentenced, be a crushing penalty, the court should also consider a reduction of the total. Having decided the proper penalty for each individual offence but feeling the total is too high, it is better to achieve a reduction by making some or all concurrent rather than to reduce the length of the individual sentences whilst leaving them consecutive. The former course results in sentences that still reflect the gravity of each individual charge"

25. The court adopts the principle set out by Chief Justice Palmer in the case of Kyio-v-R([8]) which reflects the Attorney General’s Reference (No. 1 of 1989) and clearly mirrors, "with exception of any act of perversion", all the features of this case.

26. The court in all circumstances consider the appropriate sentence should be 3 years each for the first five counts to be served concurrently to each count, and bearing in mind the principle of not imposing a "crushing sentence" and that some customary compensation has taken place. The court having further taken into account the period of delay in charging the respondent, therefore order a sentence of 2½ years for the sixth count to be served consecutively to the sentence in count 1.
    

ORDER

1. Appeal is allowed

2. Quash sentence imposed by the Magistrates Court dated 5th of February 2008.

3. Substitute order of sentence as follows:

Count 1 - 3 years

Count 2 - 3 years

Count 3 - 3 years

Count 4 - 3 years

Count 5 - 3 years

Count 6 - 2½ years

Total sentence to be served is five (5½) years to commence from the date of the original sentence.

THE COURT

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^[1] Criminal Appeal No. 2 of 1986
^[2] [1998] IVR, 664
^[3] (1998), 194 CLR, 610
^[4] [2004] SBHC 90
^[5] Criminal Appeal Case 87 of 2008
^[6] ibid
^[7] [1988] SBHC. 10
^[8] ibid