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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Criminal (Appeal) Case Number 87 of 2008
ROCKY FUILORENTINO
V
REGINA
High Court of Solomon Islands
(Palmer CJ.)
Date of Hearing: 18th April 2008
Date of Judgment: 24th April 2008
G. Brown for the Appellant
H. Kausimae for the Respondent.
Palmer CJ.:
The appellant, Rocky Fuilorentino was convicted on fourteen counts of incest and sentenced to imprisonment for a total of 9 years and six months. He was sentenced to one year imprisonment each on counts 1 – 5 and six months each on counts 6 – 14. The presiding magistrate suspended counts 6 – 14 (a total of four years and six months) for two years on condition he did not re-offend; the remainder were made consecutive. He was required therefore to serve five years in total.
The illicit relationship started when the daughter was about 19 years old and continued until she was about 26 years old. In that period a total of four children, three boys and one girl were born. The appellant was 50 years old when the offending commenced.
He was charged in February 2005 but not dealt with until 13th March 2006. He was unrepresented at his arraignment and entered a guilty plea.
The appellant says that his sentence of five years was manifestly excessive. That insufficient weight was given to the fact that the victim was a 19 year old adult at the time the offending started and not a young person as is the case with worse offences of this type. While the facts indicated there was a lack of consent this was not explored. Insufficient weight was given to her age and as to her ability to report the matter earlier or avoid further offending. There was no evidence of threats or unnecessary violence or coercion by the accused. He says there was delay from time of offending to the time the matter was eventually heard by the court. He says the court failed to look at the totality of the sentence imposed. He says insufficient weight was given to his cooperation and full and frank admissions to the police when interviewed, his age at time of sentence being 60 years, and to his guilty plea which saved the victim from having to come to court to give evidence and be cross examined.
On the issue of age he expressly noted in his ruling that at the time of the offences the victim was the eldest in a family of eleven children and was 19 years old. He also noted the difference in seriousness recognised by the law in terms of the maximum sentence to be imposed where the victim is below the age of thirteen years, being life imprisonment as opposed to a maximum sentence of seven years where the victim is above thirteen years.
As to her ability to report or avoid further offending, I accept this was not explored in the set of facts presented by police to the court. As an adult this raises the question as to her ability to report the matter or to avoid further offending bearing in mind the cultural norms and practices of the community. There may have been a host of reasons but the only information provided to the presiding magistrate was that there was no consent throughout. Did she have opportunity to report the case to any one in a position of trust? Was there anyone in her community or village to whom she could have confided in? When she gave birth, I presume in a clinic, why did she not tell the nurses or any mature person as to who the father of her child was? Wasn’t it a requirement in birth notices that the name of the father of the child should be disclosed and if that were the case, surely the offence would have been discovered at an earlier stage and reported or steps taken to help her avoid further offending from the appellant? There were four children born out of these offences over a period of time from 1996 to 2004 (about 8 years) and from the time when she was 19 years to 27 years old. This should have been explored as the victim was an adult at the time of offending and that it occurred over a period of time. As an adult there are basic assumptions which can be made by this court regarding her ability to report or to avoid further offending. There is no evidence of any indications of mental disability or infirmity which could have affected her mental capacity and no evidence of any violence, threats or use of force either to be able to report the matter early. So it can be assumed that she could have reported the matter or taken affirmative action to avoid further offending. This raises the question whether she was a willing participant and raises query on the issue of lack of consent. This must clearly be a mitigating factor in this case. It would have been different if the victim was below the age of 13 and corrupted by the appellant over a period of time. The older the victim the lower the degree of corruption normally would be. There is presumption that an adult normal victim has greater degree or capacity to either report or take steps to avoid the offending. What therefore may have been viewed as an aggravating factor in the circumstances of this case, through the repetition of the offence, needs to be balanced with this fact.
That she did not report the case, it seems and so to a certain extent may be said, to have allowed it to continue, can be viewed as a mitigating factor and ought to have been taken into account.
I accept delay is a mitigating factor to an extent. There was a period of some 9 years from the time offending commenced in July 1996 to the time he was sentenced in March 2006. From the time admissions were made to police to the time the matter came to court, was a delay of 13 months. I note in such situations the matter should have been expedited. This however should be balanced with the fact of remoteness and isolation of the community in which the appellant resided. He came from Maleai village in the Shortland Islands and unless he was brought over to Gizo to be dealt with there, the only time when the Magistrates Court would visit his area was when a circuit was conducted. That did not happen until February 2006. Transport and finance difficulties therefore were direct causes in the delay. The learned magistrate nevertheless did take delay into account when imposing sentence.
In any sentencing exercise, cooperation with police and frank and full admissions are relevant factors in mitigation. I accept these are relevant factors to be taken into account in his case. There is evidence that he made full and frank admissions from the outset and the delay in the disposal of his case was not of his doing.
As regards his age, the learned magistrate did take this into account in his sentence. The learned Magistrate noted that he was fifty years old at time of commission of first offence in 1996. This meant he was sixty years old at time of sentence in 2006. I am not satisfied this factor was overlooked or given insufficient weight by the presiding magistrate during sentence.
As to his guilty plea, I am not satisfied insufficient weight was given to this fact. The learned magistrate expressly took this factor into account, including his previous conviction before imposing sentence. This was a clear case from the outset and would have made little difference if a not guilty plea had been entered, for the stakes against him were overwhelming; four children were born out of this incestuous relationship.
The question on appeal is whether the sentence imposed was manifestly excessive taking all the factors of this case into account? For this court to interfere with a magistrate’s discretion in the sentence imposed, it must be shown that the sentence was manifestly excessive, or manifestly insufficient because he has acted on a wrong principle or has clearly overlooked, understated or overstated, or misunderstood some salient feature of the evidence[1]. If the presiding magistrate acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substituting the appropriate sentence[2]. It is for the appellant to demonstrate that there has been an error in the sentencing discretion of the court below which would justify the intervention of this court. It is for the appellant to show that the sentence of five years imposed in this case in its totality was unreasonable or plainly unjust.
A number of cases have been referred to for comparative purposes. In Peter Roko v. Reginam[3], on appeal from the Magistrates Court of a sentence of 6 years, it was reduced to 5 years by Ward CJ. The appellant was convicted on four charges of incest with five similar offences taken into consideration. The victim was the youngest of 6 children and was 16 years at time of commission of offence. The court took into account the age disparity, guilty plea, that he was cooperative with police and that a child was born of the incest. In Regina v. Joseph Atkin[4], a total of 4 years was imposed. He had been charged with 8 counts of incest. He followed his daughter to Honiara where the offence continued. There was however a delay of two years before the case came before the courts.
In Kyio v. R.[5], on appeal the sentence of four years was reduced to two years. The victim fell pregnant to the incest. It involved threats of violence. Delay however played a big part in the reduction of sentence in that case to two years. The offences occurred in 1992 but he was not charged until 1995 and sentenced only in 2004. By then the victim had married and moved on with her life. The child born from the incest was actually being looked after by the mother of the victim and the appellant. The parties had reconciled and the court took into account the hardship incarceration for a long period would have on the family.
The facts in this case are clearly distinguishable[6]. The victim was an adult; 19 years at the time of commencement of the offences. By the time the appellant was charged she was 27 years old. Her age is clearly a relevant factor in this case. The period over which the offences were committed is also a relevant factor in this case. No evidence of coercion, violence or threats was ever produced by prosecution other than a statement that the victim did not consent to the incest. These are all relevant and inter-related factors in this case.
Also while there is no evidence to suggest that there was genuine affection on his part, there is no evidence either to suggest that the victim in this case was being used merely as an outlet for his perverted sexual inclinations.
The fact children were born from his offending does not detract from the repugnance and objections of society and the law on this type of offence. The stigma will stay with the family and especially the children for the rest of their lives. There has clearly been abuse and breach of trust and exploitation of the special relationship he holds over her.
The custodial sentence to be imposed should not only be seen as punishment for his offending and deterrence to others, but also to send a clear signal to him to sever the relationship completely, for no amount of affection will legitimize such relationship. The period he spends in prison should give opportunity to the victim and the children born out of this relationship to start life anew separately.
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[7]. The court should then consider whether to make those sentences wholly or partially concurrent, rather than by an order for the cumulation of unnecessarily 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 recognised, bearing in mind at all times though to avoid the imposition of a "crushing" sentence.
To that extent the sentences imposed should be quashed and a re-sentencing exercise to be carried out.
Accordingly I re-sentence as follows:
(i) Counts 1 – 7: impose sentence of three years imprisonment each;
(ii) For counts 8 - 14: impose sentence of three and a half years imprisonment on each.
I have carefully considered the question whether these should be made concurrent to each other or there is basis for making any of those sentences to be cumulative. The minimum cumulative sentence that can be imposed is six years. Taking the age factor of both the victim and the appellant into account and all other relevant factors into account, it is my view that such sentence will have the effect of a "crushing" sentence on him. In the circumstances, I order that all the sentences be made to run concurrent to each other. The total period to be served therefore will be three and a half years.
Orders of the Court
The Court.
[1] Berekame v. DPP (1985/1986) SILR CA, applied the approach in Skinner v. The King (1913) 16 CLR 336 and also adopted in Saukoroa
v. R. (1983) SILR 275.
[2] House v. The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ (at 505).
[3] [1990] SBHC 99
[4] [1994] SBHC 47
[5] [2004] SBHC 90
[6] Bebini v. Director of Public Prosecutions HCSI-CRAC 44 of 1986; Bollen v. Toke HCSI_CRAC 50 of 1998; Hagataku v. R. [1993] SBHC 61; Nanai v. R. [2005] SBHC 74
[7] see DPP v. Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258 (CA) per Ormiston JA
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