Mou v R [2022] SBHC 126; HCSI-CRC 510 of 2016 (27 May 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Mou v R
Citation:
Date of decision:	27 May 2022
Parties:	Catharine Mou v Regina
Date of hearing:	27 May 2022
Court file number(s):	510 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Accused is sentenced to 10 months’ imprisonment. 2. That sentence is now deemed to have been served. 3. The Accused is at liberty on the rising of the Court.
Representation:	R Olutimayin for the Crown D Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 206
Cases cited:	Regina v Irobako [1992] SBHC 30, R v Naidi [2019] SBCA 5

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 510 of 2016

CATHARINE MOU

V

REGINA

Date of Hearing: 27 May 2022
Date of Sentence delivered: 27 May 2022

R Olutimayin for the Crown
D Kwalai for the Defendant

Lawry; PJ

Sentence

Introduction

1. Catharine Mou, you have pleaded guilty to one count of infanticide contrary to section 206 of the Penal Code. The plea was entered before the former Deputy Chief Justice. He entered a conviction but did not impose sentence as you were pregnant. He ordered that sentencing be deferred until 6 months after the birth of your child. You now appear for sentence.

Facts

2. The facts of your offending are set out in the Judgment dated 3 April 2017. On 25 December 2015 you were at Louna Village in Western Province. You asked Ms Pitua to accompany you. You went to the seaside where you gave birth to a baby boy. Ms Pitua saw you with the baby, picked it up and wrapped it in a lavalava. You took the child from her and threw him against sharp rocks causing his death. At the time you were 18 years old. You were arrested on 30 August 2016 and remained on remand in custody until your release on bail on 31 March 2017.
3. You have since married and had two more children. There has been a delay in sentencing of more than 5 years since your release on bail. You have no other criminal offending, before or since 25 December 2015. There has been no expert psychiatric evidence put before the Court.

Aggravating features

4. The seriousness of the offending is reflected in the maximum penalty which is life imprisonment. In Regina v Irobako [1992] SBHC 30, Muria ACJ said: “The offence of infanticide is a very serious offence. The seriousness of the offence lies in the fact that an innocent child has been deprived of the right to life and to reflect that seriousness, the law puts the maximum punishment for the offence to imprisonment for life.”
5. Although you had given birth only a short time earlier your action of taking your son and throwing him on sharp rocks must be viewed as an aggravating feature.

Mitigating features

6. You were initially charged with murder but pleaded guilty to the offence as soon as the charge was reduced to infanticide, taking responsibility for your actions.
7. You were young at the time, only 18 and I accept you were frightened about what would happen when your family discovered that you had given birth.
8. You have had no other convictions either before or since.
9. Your counsel says you are remorseful.
10. There has been a serious delay in your case. Although you were interviewed by the police on 15 February 2016 you were not arrested until 30 August that year. Of greater concern is the delay between when you entered your plea and now appear for sentence. That is more than 5 years.
11. Your counsel also submits that you have strong family support. I accept that you have shown with the passage of time that there is no need for personal deterrence although there must be a general deterrence to reflect the seriousness of taking such a young life.

Authorities

12. Counsel have referred to a number of authorities but rather than traverse those, the guidance given by the Court of Appeal in R v Naidi [2019] SBCA 5 is of greatest assistance. In Naidi the Court was dealing with a 15 year old mother convicted of infanticide which required the Court to sentence in accordance with the Juvenile Offenders Act. However, the Court reviewed the authorities and said: “Had she been an adult when the offending occurred, a sentence of twelve months’ imprisonment would have been an appropriate starting point. There should then have been a small increase for the circumstance of aggravation (say, one month) and allowances for the delays (say, two months) and the guilty plea (say, another three months). It would have been open to the sentencing judge to suspend the imprisonment partially on account of the rehabilitation she had undergone by the time of sentence.”

Discussion

13. In this case a starting point of 12 months’ imprisonment is appropriate. There needs to be an increase to reflect the aggravating feature being the manner in which you caused the death of your child. An increase of 6 months is appropriate.
14. A reduction of 4 months is appropriate to acknowledge the early guilty plea. A further two months is allowed to reflect your youth at the time, your otherwise good character, remorse and the fact that you have turned your life around.
15. A further reduction is appropriate to reflect the delay in bringing this matter to a conclusion especially after your guilty plea. You have had the prospect of this sentence hanging over your head for far too long. A further 2 months’ reduction is therefore allowed. That leaves a total sentence of 10 months’ imprisonment. A sentence of 10 months’ imprisonment would send a message to the community that the Courts view the taking of a life most seriously. Allowing for remission a sentence of 10 months’ imprisonment would require you to serve a little less than 7 months. You have already spent 7 months on remand in custody at a time when you were pregnant.
16. In these circumstances you have now served your sentence.

Orders of the Court

1. The Accused is sentenced to 10 months’ imprisonment.
2. That sentence is now deemed to have been served.
3. The Accused is at liberty on the rising of the Court.

By the Court
Justice Lawry Puisne Judge