Regina v Melake [2010] SBHC 34; HCSI-CRC 11 of 2008 (15 June 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(FAUKONA J)

Criminal Case: No. 11 of 2008

REGINA

V

MATHEW MELAKE

Date of Hearing: 25th May 2010
Date of Sentence: 15th June 2010

For the Crown: Mr Seuika
For the Accused: Ms Waqavonovono

SENTENCE

FAUKONA J: The accused Mathew Melake was charged for three offences of incest by male, contrary to Section 163(1) of the Penal Code. On arraignment, the accused pleaded guilty to all the three counts, maintaining his plea given on 6th December 2007, at the Central Magistrates Court, Honiara.

The Facts

2. The three offences arose from three incidents which the accused said to have sexual intercourse with the victim, Ms Ethel Ibunir, who to his knowledge, his daughter.

3. The first incident occurred at Peter Meioko's house at Namelilu Village, Santa Cruz. It was on the 1st day of January 1999, the victim was sleeping in one of the four rooms in Mr Meioko's house. She was wearing a lavalava without any pants, and was facing up. The victim woke up when she felt someone lying on top of her belly. She opened her eyes and saw her father (accused) was already naked and lied on top of her. The victim refused to have sex by closing her legs but the accused opened her legs and have sex with her until he ejaculated. Then he left.

4. The second incident occurred on an unknown dated between 1st January and 19th May, 1999. On that date both walked to Napweli bush to work in their garden. Whilst walking the accused approached the victim and grabbed her, laid her on the ground facing up. The victim told the accused that she did not want to have sex with him. The accused ignored that, pulled his trousers down, lay on top of her and opened her legs. He then had sex with her until he ejaculated.

5. The third incident occurred on an unknown date between 1st January 1999, and 19th May 1999. After having dinner that evening, the victim went to the room and lay facing up on her bed, still awake. The accused then told her to get her blanket and slept close to him. The victim refused to move closer. The accused moved to the victim and turned her body face up, lifted her shirt and pulled her pants out. He was naked, lay on top of her, separated her legs and had sex with her. After ejaculation, he returned to where he used to sleep.

6. Matter reported to Police on 19th May 1999 and investigation was carried out. The accused was not dealt with until 2007 when he was arrested in Honiara and charged.

The Crown Case

7. The Crown case is that an incestuous act between father and daughter is serious. In all three occasions the victim was forced to have sexual intercourse with the accused. Such is unacceptable in custom, religion and law of this country.

The Defence Case

8. The accused through his Counsel accepts the statement of facts in full. As such, he must therefore be convicted of the offences. However, force used is quite minimal without threat and violence. No weapon was used, and the victim was not pregnant.

Seriousness of the Offence

9. Both Counsels accept that the offences of incest are serious and that an immediate term of imprisonment is the only possible sentence that can be imposed.

10. The maximum penalty of seven years imprisonment suggest that this is a serious offence. In Hagataku –v- R[1], Palmer CJ stated that the offence of incest between father and daughter are generally considered more serious in gravity than offences of incest between brother and sister.

Aggravating Features

11. The Crown Counsel submits that there are certain elements which aggravate the seriousness of the offence.

12. One of them is the relationship between the accused and the victim, which in this case between father and daughter. An incestuous act in such a relationship is unacceptable in custom, religious belief and law of this country. All three condemn such behaviour as intolerable, sin and a serious offence. Not only that but it brings shame to the parties, their family and relatives. It weakens their general relationship they have with their community. Normal and usual communication constraint, family status and integrity diminish. All these are a consequence of breaching the family relationship through unacceptable incestuous act. It will take some time before the relationship be mended again.

Breach of Trust

13. At the time of offending the accused was 55 years old and the victim was 16 or 17 years of age. He was a mature man then. As a father much has been expected from him. He should know better of what is wrong and what is right. He is first to protect his daughter and shield her from such behaviour. He should know his responsibility to love, care and protect. As a father, he should not deny the total reliability and faith the children have on him. Their dependency and trust is always on the father. He must acknowledge his duties without reservation and abuse. He should be her role model and conduct himself in a decent manner. This sort of behaviour leave devastating scars and wounds in her life and can take many years before can overcome them.

Mitigating Factors

Good Character with no previous Convictions

14. The accused is a person of good character without previous convictions. It can be argued that these offences are one of isolated incidents, and not the way he normally behaves. Then why he has done something shameful and destructive to his daughter. If he is a mature man, much has been expected from him, and good character should sustain him from indulging in such a behaviour. And worst he subdued her to have sex with her on three separate occasions. Good character without prior conviction is always a mitigating factor. The only hope is that he does not repeat the same.

Unlikely to re-offends

15. The counsel for the accused submits that there is unlikely the accused will re-offend. That remains uncertain. If he is truthful as to what he says that he felt shame and remorse for his actions, and therefore had no contact with his daughter since he had been in trouble, and that he will continue remain in Honiara for the foreseeable future, then I would consider that as a mitigation. The clouds of doubt will hang on, if this case finally sorts out and he becomes a free man, what would happen next. At this stage it would be quite difficult to suggest what would happen in the future. He might chose to go back to his family. I am cautious to consider such as mitigation.

Crashing Sentence and Hardship

16. The accused's counsel submits that the impact of a substantial sentence will have a greater effect on him as an elderly man and render the sentence crashing, therefore inappropriate.

17. Any length of imprisonment term will always cause hardship to the prisoner and to his close family members. The accused close association and communication with relatives and family will come to an end for the entire term. His liberty to move around confines. I do not think he will pass away before completing any term of imprisonment. He is 65 years then and still appears strong and going. There is no evidence of any health problem that suggest each year in prison will reduce his life's span. These hardships are not unique and peculiar to him. It may be for unforeseeable future but not of any immediate risk.

18. It has always been said that those hardships are the consequences he should thought about before committing the offences. It also means he has to face any prescribed penalty set by our Laws, and hardships that follows any incarceration term.

19. Having said that, I have considered the case of Togovi –v- Regina[2], in regards to a crashing sentence on an elderly men, and at the same time, I consider the case of Attorney General's Reference (No. 1 of 1989)[3] which express in very clear terms the function of the criminal law in the field of sexual offences:

"To preserve public orders and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are vulnerable because they are young, weak in the body or mind, inexperienced or in a state of special physical, official or economic dependence".

20. It is clear the law is there to protect innocent victims, children and persons of young age who may not be capable of looking after themselves.

21. The hardships likely to be encountered by the accused or his family must be balanced against the seriousness of the offence, the exploitation and abuse of the victim as his daughter, and ensuring those who commit such offence must expect a custodial sentence.

Custom Compensation

22. I noted that an amount of $1, 500.00 compensation was paid to a male relative for the harm he caused. The money was paid between 2000 to 2003. The recipient of the money now died. Payment of custom compensation is significant to restore the relationship in a peaceful and harmonious manner. This reflects the accused degree of contrition and afford him some mitigation. However, this must not be viewed as the accused buying his way out. The offence was committed against the state which the accused is liable to be punished for that.

23. Sad to note that the victim was not paid any compensation money, or even her close uncles and brothers. If peace was to be restored then such custom compensation payment should be paid to very close relatives and brothers or sisters, in particular those who directly affected or humiliated by such a perverted act.

Guilty Plea

24. Pleas of guilty is recognized as a significant mitigating factor, and indeed attract a discounted sentence that which would otherwise have been imposed. It is significant in three ways. First, it saves court time and resources. Secondly, it does not expose the victim of the sexual offence to further trauma that would be caused by relating the incident in Court. Thirdly, it demonstrates genuine contrition and true remorse.

25. Though in Gerea –v- R[4] emphasizing one third or one quarter reduction from the intended sentence to impose, the extent of the discount is not fixed. Each case depends on its own set of facts and the exercise of the discretionary power of the Court. Different circumstances require different approaches but strive must be for coherence to be achieved in all similar factual situations.

Lack of Aggravating Features

26. I noted that minimal level of threat used was without violence or weapon. No further acts of perversion beyond the offence of sexual intercourse. The accused has no history of violence and sex crimes. The victim was not very old or very young. There is no pregnancy as the result of the act of incest. However, the victim had gone through a heck of traumatic life that will take long time before it heals. She suffered the consequence of shame and frustration which will haunt her life for some time.

Delay

27. There is element of delay in prosecution of this case. The offences were committed between January and May 1999. In May 1999 the matter was reported to Police. In 2007 the accused was charged. On 6th December 2007, the accused pleaded guilty to all the offences in the Magistrates Court, Honiara. The case was adjourned thereafter awaiting sentencing by the High Court. The case first came to the High Court for mention on 23/4/2010. From the date the case was reported to Police to the date the accused was charged is 8 years. And from the date he pleaded guilty to the time he was sentenced by the High Court is 2½ years. There is no record to account for any reason for the delay. In an attempt to explain the reasons for delay, the Crown Counsel stated that it was a factual delay. He submits that initial investigations were made on the victim's complaint that someone in the village had sexual intercourse with her. Upon investigation it revealed that accused was the culprit. The file was then sent to Honiara for clarification. Instructions from Head of CID that the victim should be re-interviewed. In her second statement she admitted that her father had sex with her on a number of occasions. By then the accused had left for Honiara in 2004 until he was dealt with in 2007. For that period of time was the ethnic tension.

28. Whilst tension may play a part in the delay in the initial years, there is no explanation in detail of the sequence for the delay. Bearing in mind the remoteness and transport difficulties associated to any travels to and from Temotu Province. I must point out the delay was unreasonable. There is no sufficient detail placed before this Court. It must be justified as it is vital to the process of sentencing. Having said that, I accept delay is a relevant factor in mitigation. It result in a substantial reduction of the sentence which would have been imposed. Quite a good number of cases submitted by the accused's Counsel supporting substantial reduction for unreasonable and unjustifiable delay. And I have taken note of them.

Comparative Sentence

29. Counsels have referred to a number of authorities which I have carefully studied. My findings reveal three cases, of which two are common to both submissions, which contain set of facts almost similar to this one. The sentences imposed in these cases range from 3 – 5 years imprisonment. The Three cases are Kyio v R[5], Bebeni v DPP[6] and Nanai v R[7].

30. As I have said, this case is serious, however, taking into account all other mitigating and aggravating factors as plea of guilty, no prior convictions, remorse, custom compensation paid, age of the accused which is 65, minimum force used, three occasion of incestuous act, no pregnancy and breach of trust, apart from delay would have been four years for each count, with concurrent sentence as agreed upon by the Counsels. The total should be 4 years. However, the substantial reduction of the sentence would mean a reduction of 2 years. The case of Kyio which is 9 years delay and Nanai 11 years delay have assisted me arrive at 2 years sentence reduction, the same number of years reduced in each case.

31. Having considered the facts, should the accused still alive after serving his sentence and return to his community, what would happen next. Will he continue abstain from abusing his daughter.

32. In the light of the unforseeability into the future, I have decided to suspend one year out of the 2 years sentence.

Orders

1. Two years imprisonment for each of the three counts, to run concurrently.

2. One year to be suspended.

3. Accused to serve one year in prison.

THE COURT

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^[1] (1993) SBHC 61
^[2] (2009) SBH 63
^[3] (No. 1 of 1989)
^[4] (2005) 54
^[5] (2004) SBHC 90
^[6] HCS4-CRAC 44 of 1986
^[7] (2005) SBHC 74