R v Akeso [2020] SBHC 42; HCSI-CRC 168 of 2019 (25 June 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Akeso
Citation:
Date of decision:	25 June 2020
Parties:	Regina v Nilfred Akeso
Date of hearing:	17 June 2020
Court file number(s):	168 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	I could have sentenced you to four years imprisonment. But for the mitigating factors and more especially, the length of the delay in the prosecution of your case, I reduce that sentence to that of three and ½ years imprisonment. I direct that the time spent in pre-trial custody be deducted from the total sentence. I further direct that he be released at the rising of this court. Orders of the court
Representation:	Mrs. Margaret Suifa’asia for the Prosecution Mr. Lazarus Waroka for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] s 163 (1), Constitution of Solomon Islands, s5 (2)
Cases cited:	R v Patterson Runikera CRAC 14/87

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 168 of 2019

REGINA

V

NILFRED AKESO

Date of Hearing: 17 June 2020
Date of Decision: 25 June 2020

Mrs. Margaret Suifa’asia for the prosecution
Mr. Lazarus Waroka for the Accused

SENTENCE

Bird PJ:

1. The defendant is charged with the offence of incest by male, contrary to section 163 (1) of the Penal Code, cap 26. The defendant had initially entered a not guilty plea to the offence. On the 2^nd March 2020, counsel appearing for the defendant had indicated to the court that the defendant intends to change his plea.
2. On the 6^th May 2020, the defendant was re-arraigned on the information and he entered a guilty plea. Sentencing submissions was not done until the 17^th June 2020. Mr. Waroka of counsel for the defendant did not finalise the agreed facts until the 16^th June 2020 when further directed by the court. He made oral sentencing submissions on behalf of the defendant, in court on the 17^th June 2020. At the eleventh hour, on the 24^th June 2020 and after I have already done my sentencing on this matter. Mr Waroka filed written submissions on behalf of his client. The crown had filed their sentencing submissions on the 3^rd June 2020.
3. The offence of incest as prescribed under section 163 (1) of the Penal Code is a felony and carries a maximum imprisonment term of seven years. That imprisonment term shows that this type of offending is a serious one and must not be tolerated.
4. The facts of your case are that you were 52 years old at the time of offending. You are from Kala Bay, Santa Cruz. You are the biological father of the complainant. At the material time, your daughter was a grade 6 student at Kala Bay Primary School and she was 16 years of age. She was your second child.

In 2014, your wife, the complainant’s mother was jealous of you with your daughter. In 2015, you talked to your wife in your daughter’s presence, telling her that if she does not stop her jealousy, she will find the answer.

On the 5^th August 2015 at about 16.00 hours, whilst your wife and your two sons went to your garden, you were alone with your daughter at home. You then approached your daughter and asked her to go into her room so that you could have sex with her. She went into her room as instructed. She undressed herself and lay on her bed. You also undressed yourself and lay on top of the complainant and had sex with her.
As a result of that sexual union, your daughter fell pregnant and she gave birth to a baby girl on the 7^th May 2016. The complainant and her child are still living with your wife to this date.

5. In sentencing you, I have taken into account the aggravating features and the mitigating features in your case. Against you as aggravating in nature, is the disparity of age between you and your daughter. At the time of offending, you were 52 years old and your daughter was just a child of 16 years and was only attending primary school then. She was below the consenting age.
6. In the agreed facts, you did the offending due to your wife’s jealous attitude towards you and your daughter. The court views that reason as a mere excuse, used to satisfy your sexual desire on your own daughter. You are an adult and an elderly person but your attitude does not speak well of your character. You are the head of the household but you have acted like a silly teenager. As an adult, you could have dealt with the problem in a positive way. You chose not to.
7. Having said the above, you as the head of your household is placed in a position of trust. Your children look up to you for guidance, security and safety. You have breached that trust. In all family circles, there should be limits and boundaries that ought to be observed to show that there is integrity, respect, loyalty and dignity within. On that token, there are things that fathers are not supposed to discus with their daughters, likewise for mothers.
8. Your act of having sexual intercourse with your own daughter shows that you have no respect for your daughter as a person. You also lack respect for yourself. At a very ripe age, you have allowed yourself to stoop really low and molested your own daughter. That is a very shameful and disgraceful behaviour and your daughter will have to live with that stigma for the rest of her life.
9. Your actions have caused great emotional and psychological stress on your daughter. She fell pregnant as a result of your sexual union with her. She is forced into a situation where she had to nurture her own child at a very early age. Under the international conventions, your daughter was still a child at the time of your offending. You abused your own daughter for your own selfish sexual desire.
10. I have heard and taken into account what your lawyer had submitted on your behalf. You have pleaded guilty to the offending which not only shows remorse on your part but that you have also shown that you have come to terms with your shameful and disgraceful conduct. You would have now realised that your conduct was both legally and morally wrong.
11. You have no criminal reputation. You are a first offender. You have lived a good life for the most part of your life until this offending.
12. I have noted that this offending occurred on the 5^th August 2015. This matter was not reported to the police until the 7^th May 2016, the day when your daughter gave birth to your child. You were arrested by the police on the 31^st May 2016 and you have remained in custody since then.
13. You were committed by the Magistrate Court to this court on the 30^th November 2017. The information against you was filed by the Director of Public Prosecutions on the 17^th June 2019, about one year and seven months after your committal. This amounts to undue delay by the Director. I can say that the late filing of information against you by the Director, would amount to a breach of your rights under section 5 (2) of the constitution.
14. I have noted with approval, the comments of the then Chief Justice, Justice Ward in the case of Patterson Runikera in CRAC 14/87. On page 2 of his judgment he was very critical of the delay of five years, describing it as scandalous and likely to cause injustice.
15. After having noted those comments, I can say that there has been a substantial delay in the prosecution of your case. On the whole there is a delay of about five years. From those five years, you have spent more than three years in pre-trial custody.
16. In this sentence, I have taken into account the case authorities referred to by the crown and your lawyer. For this type of offending, the sentencing range would be between five years to three years. The facts of your case, would measure your case at a higher level of sentencing.
17. On the aggravating features alone, I could have sentenced you to four years imprisonment. But for the mitigating factors and more especially, the length of the delay in the prosecution of your case, I reduce that sentence to that of three and ½ years imprisonment.
18. I direct that the time spent in pre-trial custody be deducted from the total sentence.
19. From the above facts and taking into account the time spent in pre-trial custody, this defendant would have already served his total sentence in full. I further direct that he be released at the rising of this court.

Orders of the court

THE COURT
Justice Maelyn Bird
Puisne Judge