Togovi v Regina [2009] SBHC 63; HCSI-CRC 50 of 2009 (30 October 2009)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 50 of 2009

PASKALE TOGOVI

V

REGINA

Date of Hearing: 19th of October 2009
Date of Judgment: 30th of October 2009

For Appellant: Mr. Kesaka/Mr. Coates
For Respondent: Mr. R. Barry/Mr. Kelesi

JUDGMENT

Naqiolevu J:

The appellant appealed against the decision of the Principle Magistrate Court of the 22nd of January 2009, where he was convicted of two counts of Attempted Rape contrary to Section 138 of the Penal Code.

Grounds of Appeal

1. The grounds of appeal are that the sentence imposed by the Principle Magistrate Court were manifestly excessive.

a) 4 years for each count was excessive in itself due to delay, an early plea of guilty, remorse and payment of compensation.

b) by ordering that the sentence for each count be served cumulatively and without adjustment the total sentence was excessive and crushing.

2. Counsel for the appellant submit the error in sentencing is that the total sentence of 8 years for the two counts is manifestly excessive. Insufficient weight was given to the fact that the appellant had paid compensation once the community knew of the offences, which was well before he was charged by the police, and that he co-operated with the investigating authorities and admitted the offences in his record of interview, and that he pleaded guilty at the earliest opportunity.

3. Counsel further assert the period of delay of about 4 years when the offending ceased, to the reporting to the police and 11 months from the time of reporting of the matter to the police and the interview and arrest.

4. Counsel assert it was excessive to give two significant and identical separate sentences and to make them consecutive, the Learned Magistrate failed to look into the totality of the sentence, than imposed and thus fell into error, and by ordering the two significant sentence of imprisonment to be served consecutively and without adjustment the Learned Magistrate imposed a crushing sentence.

5. The appellant is 66 years of age at the time of the imposition of the sentence and taking into consideration the life expectancy for men in the Solomon Islands which is between 63 – 66 years of age. There is therefore a reasonable prospect that the appellant will die before he is eligible for release.

Respondents Submission

6. Counsel for the respondent submit the Learned Sentencing Magistrate was entitled to consider the following matters in the exercise of her discretionary powers.

1. the penalty of Attempted Rape is 7 years imprisonment.

2. the aggravating features of each count, the age of the victim at the time of each offence being 6 – 7 respectively, the age of the appellant, the degree of planning and premeditation, the breach of trust by an elder, the effect of the victim in having to live with the degrading nature of the offence, the victim was the appellant’s granddaughter and the repeated commission of the offence.

7. The Learned Magistrate has taken into consideration the mitigating factors of the plea of guilty, the compensation paid, the delay factor, the remorse, no direct evidence of trauma and the appellant is a first offender, a person of good character and the time spent in custody.

8. The Learned Magistrate consider the need to protect children from this type of offence, the need for general deterrence and specific deterrence in light of the repetition of the offence and the need for appropriate retribution.

Magistrate Sentencing Discretion

9. The court is of the view the Learned Magistrate has correctly applied the principle of law in the sentencing discretion. The Learned Magistrate has clearly taken into consideration the appellant guilty plea and accept the effect of saving the victim from the embarrassment and trauma of reliving everything again by giving evidence in court.

10. The Learned Magistrate quite correctly addressed the appellant is a first offender for which she gave credit and his previous good character. The Learned Magistrate however weigh this with the fact the victim is his grand daughter a child of 6 – 7 years old.

11. The court consider the compensation paid and the customary reconciliation which was undertaken. The court however whilst consider the Learned Magistrate has properly assessed the process clearly apply the principle in the case of R-v-Asuana(¹), where Ward CJ stated the principle of law that must be considered. The principle has further been restated by the Court of Appeal in the case of Nickson-v- R(²)

12. The court is of the view that the delay in the circumstances of the case was properly addressed by the Learned Magistrate and raised her concern however she has given it due weight, but consider the seriousness of the offence to outweigh the delay in the circumstances.

Old Age Principle

13. The court in considering the sentence imposed is of the view that whilst an immediate custodial sentence is appropriate given the nature and the seriousness of the offence and the breach of trust. The court consider the Learned Magistrate in imposing a sentence of four years for each count, thus imposing a 8 years for a old man of 66 years is a crushing sentence. In R-v- Yates(³), the four judges said in a joint statement.

"The word "crushing" in this context cannotes the destruction of any reasonable expectations of life after release".

The court adopt this principle of law and accepts that the appellant will clearly not have any reasonable expectation of life after release.

14. The age of the accused at the point of sentence should have been in the mind of the Learned Magistrate in considering an appropriate sentence. King CJ in the case of R-v-Hunter(⁴), said

"A sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him."

15. In the case of Bruce Allan Hanes(⁵) Gray J further restated the principle when he said,

"Advance age is a factor in the sentencing process. The appellant is now aged 63 years. He will be eligible for release when aged 67 years. Each year of the sentence imposed constitutes a more substantial part of his remaining life than that of someone younger. However he can still entertain some hope of expectation that he will be released from confinement at a time that will permit him to have some useful period of his lifetime open to him to enjoy".

16. The appellant is 66 years of age at the point of sentence and if the full 8 years term of imprisonment is served he would be 74, if he survive the period in prison. The court adopts the principle of law enunciated in the case of Braham-v-The Queen(⁶) when the court said,

"The age of the person facing sentence is not determinative of the outcome whether leniency on account of youth or advanced age is called for in any particular case. Mercy is sometimes afforded offenders of advance age because sentencing judges recognizes that each year of a sentence represents an unusually substantial proportion of the period of life left to an aged offender, or where the sentence appealed from is crushing in the sense that it connotes the destruction of any reasonable expectation of useful, life after release".

The court in this instance applied the principle of law enunciated in the cases cited above of R-v-Hunter and R-v-Yates.

17. The court take Judicial Note of the Bureau of Statistics published Key Indicator(⁷) of life expectancy of men in this country to be 61 years of age. The statistic of the provincial level indicate men of Guadalcanal are set at 59.8. The appellant is a man from the Village of Kua, Central Guadalcanal Province, and clearly the age of the appellant should be an important consideration for the Learned Magistrate and Magistrates generally to consider in this jurisdiction.

18. The court accepts that the Learned Magistrate had not given sufficient weight to the principle of the old age of the appellant in her sentencing discretion and clearly it must be taken into consideration by this court.

The court in all circumstances allow the appeal and vary the order of the Magistrate Court of the 22nd day of January 2009 to reflect 4 years imprisonment to be served concurrently to each count.

ORDER

1. Appeal Allowed.

2. Order of the Court of the 22nd of January is hereby varied.

3. Order sentence of 4 years in Count 2 is to be served concurrently to the sentence in Count 1.

THE COURT

___________________

Endnote:

1. (1990) SBCH 52
2. Crim Appeal No. 11 of 2008
3. [1985] VicRp 3; [1985] VR, 41
4. (1984) 36 SASR, 101
5. [2001] SASR 347
6. [1994] NTCCA 60; 1994 116 FLR, 38
7. ibid