R v Nganatunala [2022] SBHC 28; HCSI-CRC 26 of 2020 (24 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Nganatunala
Citation:
Date of decision:	24 June 2022
Parties:	Regina v Brenda Nganatunala
Date of hearing:	20 June 2022
Court file number(s):	26 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Ms Brenda Nganatunala is convicted of 1 count of infanticide contrary to section 206 of the Penal Code (cap 26) 2. The defendant is hereby sentenced to 8 months imprisonment 3. The imprisonment term is wholly suspended for 12 months on good behaviour. 4. Right of appeal
Representation:	Mrs. Dalcy B Oligari for the Crown Mr. Ben Alasia for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] S 206, S 24 (2) [cap 26,
Cases cited:	Regina v Naidi [2019] SBCA 5, R v Salome Irobako CRC 24 of 1991,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 26 of 2020

REGINA

V

BRENDA NGANATUNALA

Date of Hearing: 20 June 2022
Date of Decision: 24 June 2022

Mrs. Dalcy B Oligari for the Crown
Mr. Ben Alasia for the Defendant

SENTENCE

Bird PJ:

1. The defendant Ms. Brenda Nganatunala is hereby charged with 1 count of infanticide contrary to section 206 of the Penal Code (cap 26). The defendant had initially pleaded not guilty to the charge. On the 9^th June 2022, the defendant was re-arraigned on the charge and she pleaded guilty therewith. She was thereby convicted accordingly and she now appears before me for sentence.
2. The charge of infanticide is a very serious offence and it carries a maximum sentence of life imprisonment. The courts nonetheless are empowered under section 24 (2) of the Penal Code (cap 26) to impose a shorter sentence than the maximum sentence upon the peculiar circumstances of each case.
3. I now set out the facts of your case. You are 29 years old and you are from Karumulan Village, Russell Islands, Central Islands Province. You were 25 years old at the time of offending and you were not married. You completed your Form 5 education at White River in 2017 and having being unable to enrol for SINU in 2018, you returned home. You fell pregnant and did not tell anyone about your pregnancy. Even the nurse at Pepesal Clinic stated that you never visited the clinic for pre-natal checks until the offending.

On the 23^rd March 2018, you delivered a male child at the village. The deceased infant was under the age of twelve months at the material time. On that date between 4.00am to 5.00am, you cried very loudly behind your kitchen house and not after a neighbor heard the sound of a crying baby from the same direction behind the kitchen. It was then that you gave birth to the baby boy. From that location, you took the baby and threw it at a koilo tree. The baby only cried once and stopped. You drowned the baby in the sea and put a big rock on top of the body. You then went and hid the body at a different location.
After giving birth to the baby, you went and sat inside a shallow part of sea on the beach. The sea around you was full of blood. You told your sister that you have given birth to a snake and you did not know where that snake had gone to. You then swan further out to sea with only your head out of the sea. You were pulled out from the sea and taken to Pipisi Clinic for medical examination. You told the nurse that you aborted the baby. The medical examination showed that it was a full term baby.
A search was conducted for the body of the baby. It was found buried under a huge rock on the seaside. The deceased sustained injuries to his head, mouth, hand and a broken leg. You killed the baby due to a disturbed mind as you have not fully recovered from the effect of giving birth to the child. The matter was reported to the police and you were charged.

4. After having stated the facts in your case, I will now discuss the aggravating features and balance them with the mitigating features therein. It is submitted on behalf of the crown that there are several aggravating features in your offending. Firstly is the fact that your action had deprived the child of the right to life. You had no regard to human life, a right which is provided for and protected under our national Constitution. The child’s right to life was highlighted by the Court of Appeal in the case of Regina v Naidi [2019] SBCA 5. This court had also noted and will take into account the comments of Muria ACJ in the case of R v Salome Irobako- Criminal Case No. 24 of 1991.
5. It is further submitted that your action was deliberate. From the facts, you threw the baby against a koilo tree and drowned him in the sea before burying the body. Your deliberate act to kill the child can also be shown on how you have concealed your pregnancy even up until you gave birth to and killed the innocent child.
6. On your behalf, it was submitted by your lawyer that you have pleaded guilty to the offending. Even though, your guilty plea had come later during the proceeding, I will still give you credit for that plea. Your change of plea shows you are remorseful and that you have owned up to your offending and you are willing to face the consequences of your action. You have no previous conviction and I will note your previous good character. It is also noted that you were 25 years at the time of offending and you are now 29 years old. I will also take into account your future ambition in trying to rehabilitate yourself and to continue with your education for your own future betterment. You are not able to enrol this semester because of the effect of this case. I have also noted that you have spent a period of 34 days on remand.
7. Apart from the above circumstances, I am concerned about the delay in the timely prosecution of your case. The offence was committed on the 23^rd March 2018. This matter was committed to this court on the 15^th January 2020. The information against you was filed by the office of the DPP on the 12^th April 2021, some 15 months after committal. The court views that as an unreasonable delay which is caused by the office of the DPP. That delay will be taken into account in this sentence.
8. Having noted the views of the Court of Appeal and this court on sentencing of like offenders, I wish to state that this type of offending in increasing in our country. A clear message needs to be send out to offenders and would-be offenders that the courts do not condone and will not tolerate these types of offences. On the facts of your case, I put your starting point at 20 months imprisonment. For the aggravating features, I increase your sentence by 12 months. For the mitigating features and especially your guilty plea, I will reduce the sentence by 12 months. For the delay in the timely prosecution of this matter, I will further reduce sentence by 12 months. Total sentence to serve is one of 8 months imprisonment wholly suspended for 12 months.

Orders of the court

1. The defendant Ms Brenda Nganatunala is convicted of 1 count of infanticide contrary to section 206 of the Penal Code (cap 26)
2. The defendant is hereby sentenced to 8 months imprisonment
3. The imprisonment term is wholly suspended for 12 months on good behaviour.
4. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge