Regina v Waitai [2014] SBHC 163; HCSI-CRC 168 of 2014 (16 December 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)

Criminal Case No:168 Of 2014

REGINA

–v-

NELLY WAITAI

Date of Sentence: 16 December 2014

N.O. Dhita for Prosecution
G.K.S. Grey for Defendant

Background

1. The defendant in this is Nelly Waitai. She is charged with one count of attempted murder under section 215(b) of the Penal Code. On 24 October 2014 the defendant pleaded guilty to the charge. She was accordingly convicted of the offence. She has been released on bail since she had been charged. She is about thirty six years of age a single mother. Her late husband passed away in 2010 leaving her with two children out of that marriage. The first child is now nine years old whilst the second child is seven years old. At the time of the offending the defendant was unemployed and living with her late husband's relatives at Kaibia Settlement in Honiara. At the time of offending she was a house girl for her relatives at Kaibia to the present time.
   

The Agreed Facts

2. On 20 May 2013 the defendant was a widow since 2010 gave birth to a child during the night at Kaibia Settlement in Honiara. She then used a digging bar to dig a grave behind the house that has been rented by someone from Are Are.
   

In order to give her light during the digging of the grave burial of the child she used a flush light from a mobile phone in an on and off fashion to ensure that nobody sees her then. She then buried the infant in that gave and covered it with ground and placed an old tyre on the surface of the grave. She left to her house about four o'clock in the morning.

3. At about half-past six in the morning, Frank walked down to Steven's canteen to buy bread for breakfast. He saw blood on the loan behind the house rented by the person from Are Are. With the assistance of Steven they searched the vicinity with the intention to ascertain what had occurred. When they walked a little further behind the house they saw what seem to be a freshly dug out area covered with ground and a tyre was neatly placed on it. Steven with the assistance of Frank dug that place. To their amazement they discovered a baby in the grave. Its hand showed up first and then they lifted the infant from the grave wondering if was still alive. They closely looked at the baby and found that she was still alive. The cord was still attached to the placenta. The baby was rushed to the hospital for treatment and then discharged.
   
4. The defendant was arrested by police on 19 June 2013 and taken to the hospital for examination. The medical examination confirmed recent child birth. The defendant was charged on 19 June 2013 but then admitted to bail in anticipation that she would breastfeed and look after the baby but that hope never eventuated. The baby has since being looked after by a couple called Judith Huahara and Simon Haowarakia who the defendants relatives. The child is now about eighteen months old.
   

Aggravating Features

5. She intended to kill this child thus disregarded the sanctity of human life. She dug the grave, dumped the baby therein and carefully covered it with ground and a tyre at the surface and then left. The infant was a new born baby, being innocent and helpless. Being the biological mother and therefore occupying a duty of care, protection and love, the defendant has failed to carry out her primary responsibilities.
   

Circumstances of Offending

6. The defendant says that after her late husband passed away in 2010 she was invited by her late husband's relatives to come to Honiara to work as "house girl" for the family. On their invitation she came to Honiara with her second born daughter and they reside at Kaibia settlement with the family. She then started working as a house girl for the family.
   

Whilst in Honiara, she came into contact with a person named Harold from Malaita. The relationship between her and Harold lasted for five years. In the third year of that relationship the defendant became pregnant. In the first month of her pregnancy, she informed Harold of her pregnancy. She wanted to find out what Harold thinks about her situation and whether or not to terminate the pregnancy at that early stage. On hearing about her pregnancy, Harold told her not to terminate the pregnancy but to let it "stay". The defendant believed Harold and thought that he would marry her and support her chid.

But the situation change soon after. Into the second month of her pregnancy Harold started switching off his mobile phone and seems not to be interested in the defendant. He as slowly moving away from the defendant and she found it becoming difficult to contact him. Each time she rang his mobile phone Harold would turn off the phone and or refused to talk with the defendant. That went on for several months and for a pregnant woman that is stressful and unbearable.

The situation becomes more burdensome for the defendant when she heard that Harold has a new woman. About six to seven months into pregnancy, Harold left her to live with another woman. Around that time she lost any and all contacts with Harold. The man had simply absconded and deserted her. She knew that she would have to face the realities of a mother with two children living in Honiara without a job and depending on relatives for money, food, water, school fees and so on.

The defendant says that she felt so down and hopeless, stranded and alone. To make things worse, at that time she was residing with her late husband's relatives. She felt so ashamed for she knew she had broken cultural sensitivities and she must answer the question of cultural repercussion from tabus and in-laws.

At all material times, she had no one to look to for support when she gave birth to the baby. The man who fathered the children had deserted her and she was alone. She already had two children, whose father passed away in 2010, and now another child was on the way but whose father had decided to desert her and the mother.

The defendant says that for the reasons as stated above at the time in question her head was blocked and decided to do what she did. She says she gave birth to the child at around three o'clock in the morning. She was alone and by herself. No one assisted her child birth and no one assisted her to dig up the grave and no one assisted her to bury the child. She did all of them by herself. She says she first dug up the hole and later on gave birth to the baby.

The defendant further said that she paid compensation to her late husband's relatives. The matter was settled according to heir Are Are culture and tradition. Compensation of $3,000.00 was also paid to those who dug up the grave and pulled out the baby.

Sentence

You have been charged with attempted murder under section 215(b) of the Penal code. It is serious offence with a maximum sentence of life imprisonment. You have pleaded guilty to offence and that you have no previous conviction. You have committed the offence because of the selfish and uncaring attitude of the person who fathered your little child. You now have three children in your hands to secure their well being and future. For these reasons I hereby sentence you for two and half years imprisonment. This sentence is to begin on 24th October 2014 when you entered a guilty plea for your offence. You may appeal this sentence if you wish to do so. Order accordingly.

THE COURT