R v Tora [2022] SBHC 13; HCSI-CRC 548 of 2021 (7 April 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tora
Citation:
Date of decision:	7 April 2022
Parties:	Regina v Muriel Tora
Date of hearing:	1April 2022
Court file number(s):	548 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Muriel Tora is convicted of 1 count of infanticide contrary to section 206 of the Penal Code (cap 26). 2. The defendant is hereby sentenced to 12 months imprisonment. 3. The term of imprisonment is wholly suspended for 12 months on good behaviour. 4. The defendant is to be released at the rising of the court. 5. Right of appeal
Representation:	Miss. Francisca Angilio Luza for the Crown Mr. Donation. Houa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] s206, s 24 (2)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 548 of 2021

REGINA

V

MURIEL TORA

Date of Hearing: 1 April 2022
Date of Decision: 7 April 2022

Miss. Francisca Angilio for the Crown
Mr. Donation. Houa for the Defendant

SENTENCE

Bird PJ:

1. The defendant Ms Muriel Tora is hereby indicted with one count of infanticide contrary to section 206 of the Penal Code (cap 26). She was arraigned on the information on the 8^th December 2021 and she pleaded guilty as charged. She was thereby convicted accordingly. She now appears before me for sentence.
2. The offence of infanticide is very serious and carries a maximum sentence of life imprisonment. Notwithstanding the maximum sentence, the courts are empowered under section 24 (2) of the Penal Code to impose a shorter sentence according to the peculiar and specific circumstances of each offending.
3. I now set out the facts in your case. You are from Central Bauro, Makira Province. I am told that you were a victim of a sexual assault that had resulted in your pregnancy. You came to Honiara in about March 2021 and stayed with your elder brother’s family to do your foundation studies at the University of the South Pacific Centre in Honiara.

On the 4^th May 2021, at about 5.45am, your sister-in-law Jemimah woke up to go to the toilet. She found blood stains at the door steps of their house and on the floor of the toilet. When she asked you, you told her you had heavy menstruation. Later that day, Jemimah saw you carrying the child towards Matariu stream and she ran after you. When she approached you, she told you to bring back the child and she will look after it but you refused and kept on walking. Jemimah left you and ran back to the house to tell her husband.
When you returned to the house your aunt Joana approached you and questioned you about the child. You told Joana that the child was already dead and that you threw the child in the Matariu stream. Joana and her son Francis Simon went to the stream and found the child wrapped in plastic bags. Francis confirmed that when he found the child, it was already dead. You admitted that you delivered the baby alive inside a bucket in the toilet at Jericho 2 area between the hours of 5am and 6am on the 4^th May 2021. The baby cried at the time of birth.
I am further told that you delivered the baby by yourself without any assistance from your family members or medical help. You then put the breathing child into a plastic bag, took the child to Matariu stream and threw it into the stream.

4. After having stated the facts of your case and in order for me to impose an appropriate sentence against you, I have to discuss and weigh the aggravating features to the mitigating features. It was submitted by the prosecution that there is a number of aggravating features in your case including a human life being taken away at an early stage, a deliberate act by yourself, concealment of your pregnancy, failure to seek medical assistance and undignified disposal of the body. Having noted those aggravating features, I have also noted the submission of your lawyer that those factors should not be treated as aggravating because you were also a victim of sexual assault that resulted in your pregnancy.
5. I must tell you that the offence that you have committed is very serious. Recognising your mental status at the time of birth of your child, you are not charged with the offence of murder. The child has the right to live but circumstances did not allow it to. That makes your offending weigh heavy against you. I am however minded to note that because of the mental stress that you have been suffering from, I am of the view that your actions were not deliberate. I have had the opportunity to read your reference from the Family Support Centre and record of counselling and noted that you went through a very tough time during your 9 months of pregnancy. On that note, I will not take the concealment of your pregnancy as an aggravating feature as well as the failure to seek medical assistance.
6. On your behalf, it was submitted that you were 22 years old at the time of offending. It can be said that you were a youthful offender. You were a foundation year student at the University of the South Pacific at that time. You are no longer at school because of this case.
7. You do not have any previous conviction. You are a first offender. I can ascertain from your counselling report that you were a person of good character before this offending. I have also noted that your pregnancy was an unwanted one because it was a result of an alleged rape incident against you. On that note, I would like to encourage you to come out and talk against such selfish, ignorant and careless attitude of our male counterparts. Talk and share with your family members, church representatives or the police. You are not at fault that you have been sexually assaulted so talk out against such actions.
8. It is submitted by your lawyer that you have pleaded guilty to the offence at first opportunity. I give you credit for your early guilty plea. Your early guilty plea shows you are remorseful and that you are sorry for what you did and willing to face the consequences of your actions. That position is also confirmed in your counselling report. Your early guilty plea have save the court’s time and resources in conducting a trial into the matter.
9. As alluded to above, your pregnancy was a result of an alleged rape incident. The court notes the stress, trauma and anxiety that you have gone through as a result. You were confused, was fearful and was unable to think rationally. You have co-operated well with the police during investigation and that has contributed to the quick disposal of your case. I am also minded to note that you have spent a total of 17 days in pre-trial custody and that time shall be taken into account in your sentencing.
10. I am told that you were a foundation year student at the University of the South Pacific in 2021. You are no longer at school because of this offending. You intend to continue your education upon completion of this case.
11. In sentencing you I am referred to by both counsel for the prosecution and yours on a number of similar cases previously dealt with by this court. The range of sentences imposed by the court in those cases are in the tenure of a suspended sentence to that of a 2 ½ years imprisonment.
12. In your case and after taking into account the agreed facts, I put your starting point at 24 months imprisonment. For the aggravating features, I will increase the sentence by 6 months. For the mitigating features discussed, I reduce the sentence by 18 months. Total sentence imposed is one of 12 months imprisonment. For your youthfulness and for your educational ambitions, I will suspend that sentence for 12 months. The defendant is to be released at the rising of the court.

Orders of the court

1. The defendant Muriel Tora is convicted of 1 count of infanticide contrary to section 206 of the Penal Code (cap 26).
2. The defendant is hereby sentenced to 12 months imprisonment.
3. The term of imprisonment is wholly suspended for 12 months on good behaviour.
4. The defendant is to be released at the rising of the court.
5. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge