Regina v Manekoto [2017] SBMC 51; Criminal Case 1020 of 2017 (18 October 2017)

IN THE CENTRAL DISTRICT MAGISTRATE’S COURT
OF SOLOMON ISLANDS
AT BUALA

CRIMINAL JURISDICTION

Criminal Case No. 1020 of 2017

REGINA

-V-

REDLEY MANEKOTO

Crown: Ms. E. Rizzu of the ODPP
Defence: Mr. L. Waroka of PSO
Plea date: October 13, 2017
Submissions: October 16, 2017
Sentence: October 18, 2017

SENTENCE

1. The accused, Redley Manekoto (“accused”), has pleaded guilty to 3 counts of incest by male, contrary to section 163(1)(c) and (2) of the Penal Code (Amendment) (Sexual Offences) Act 2016 and one count of intimidation, contrary to section 231(1) of the Penal Code. For the charge of incest, it carries a maximum penalty of 10 years imprisonment while the charge of intimidation carries a maximum penalty of 3 years imprisonment.
   
2. The accused and the complainant, Ms. Greta Gilamalale, are biological brother and sister. The accused is the elder brother of the complainant. The complainant was a person who has a knee infection that made her unable to walk properly and had to use a walking stick to move around.
   
3. The offending on all occasions involved the same complainant or victim, more or less carried out in a similar fashion here in Isabel.
   
4. The first occasion he had sexual intercourse with her was on an unknown date between the 1^st and 31^st of March 2017 at Sigholehe settlement. It appears that both of them had consented to that sexual intercourse.
   
5. The second occasion was also on an unknown date in that same month and year, and at the same settlement as well. On this occasion, it appeared that the accused had exerted forced on her to effect the sexual intercourse.
   
6. During an unknown date of that same month as well and also at the same settlement, the accused also threatened to kill her when he suspected her of having an affair with one of their cousin brothers.
   
7. The final occasion he had sexual intercourse her was on an unknown date between the 1^st and 30^th April 2017 at a location called Havi camp. Again, they both agreed to have sex. However, it appears that the accused threatened to kill her if she reported their incestuous relationship, or if she had any relationship with anyone immediately after they had sex the material time.
   
8. In any intimate or sexual relationship, there must be a prohibition in which a person should not go beyond and such is between very close family members, and sisters and brothers are examples of that. A close family member is within what normally referred to as ‘within a prohibited degree of consanguinity’ and therefore, the law criminalises any sexual relationship in that category. It is called an offence of incest either by male or female.
   
9. In the case of Hagataku v Reginam,^[1] Palmer J (now CJ), condemned such incestuous relationship in the following words:
   

“The offence of incest in our Penal Code which is derived from the English Law has its roots in the Bible. It is however not altogether foreign and something that was introduced into these islands only when the Christian Gospel was brought to these islands at the turn of this century. In most cultures, incestuous relationships are strictly forbidden in custom. As in the Bible, such relationships will bring a curse into that person’s house and family.

So although the defendant may not have been as enlightened as he should be about this offence he should have been aware of the way his society and community would show repugnance and detest at any such activity. It is this customary and religious context that perhaps makes such offences to be considered in a more stricter light than say the position is in a westernised society.”^[2]

10. Even in other jurisdictions have also condemned this particular and sickening offence. For example, in Papua New Guinea, Judge Kandakasi in the case of The State v. Tikiria Amos,^[3] also echoed the following sentiments regarding the commission of incest and how its negative impact is different to rape:
    

“...no doubt destroys the security of the home and leaves forever lifetime scares for the victim and a bad stigma for him or herself and his or her family and relations. Love gets replaced with hate and trust with distrust. Insecurity replaces security and fear replaces confidence in the family unit and the immediate community. Happiness, peace and joy are replaced with shame, ridicule and unhappiness in the family unit and in the wider community. If the victims get infected with sexually transmitted disease, his or her health is replaced with sickness and poor and unhealthy lives. If pregnancies occur, they results in unwanted pregnancies and unwanted children not properly welcomed into a proper and normal family setting. These in themselves are serious aggravating factors. If one or more of this exist apart from the threat of or use of force they place incest case might not be there."

11. These case authorities d the wealth of judicial expositions that incest is so wicked and it should not be allowed owed to thrive in family units let alone the sexual relationship outside the sanctity of the prohibited family relationship. The need for close family members not to have incestuous relationship amongst themselves is the very notion that makes human beings different to animals so to speak.
    
12. In the present case, if that is the influence of their cultural practices, I condemn it as this is repugnant to the general principle governing the relationship within a family. If that is influenced by their own lustful desires, then they need to put a full stop to it as this is a very shameful and a disgrace to their family.
    
13. The accused as an adult male and being the elder of the two should be blamed for this. He should rebuke and refute any advances made by the complainant who is his younger sister, for having sex. He as the elder of their family should know better that it is immoral and at the same time very stupid to have such relationship especially when it involves a real brother and sister. I am at loss to understand why he failed to exercise common sense and think properly the material time but allowed his mind to be contaminated with the immoral thoughts especially against his own blood or sister in other words.
    
14. In the present case, I consider the following as the aggravating factors:
    
    • (a) Breach of trust. The accused is the real brother of the complainant. He was entrusted by their family to provide love, support and protection towards the complainant and should not have this incestuous relationship with her. He therefore abused that trust relationship;
      
    • (b) The accused took complete advantage of the complainant’s disability and preyed on her condition on all occasions in order to have sex;
      
    • (c) On one occasion, the sexual intercourse was accompanied with threats exerted by the accused;
      
    • (d) The sexual intercourse was repetitive against the same complainant; and
      
    • (e) The intimidating offence was unnecessary and uncalled for in the circumstances of the case.
      
15. In mitigation, I consider and take into account the following in his favour:
    
    • (a) The accused pleaded guilty to the charges thereby saving the Court’s time and resources;
      
    • (b) He was remorseful for his actions. This also demonstrates his genuine contrition as reflected from his guilty pleas;
      
    • (c) He is a first time offender with no prior convictions; and
      
    • (d) He is married with 3 children who including his wife are all dependent on him. Two of his children are currently attending school and it is uncertain whether or not they will attend school in future in light of this case. His mother also depended on him as a person who normally helped her to repair her house.
      
16. His lawyer asked for a concurrent sentence of 2 years imprisonment for all the charges.
    
17. I am mindful of the position of the Court in Hagataku’s case^[4] that the offences of incest between father and daughter are generally considered more serious in gravity than offences in incest between brother and sister. So therefore, the Court must ensure the sentence to be imposed in the current case must allude to that consideration and of course, this will also depend on the aggravating factors.
    
18. The sentence imposed in our jurisdiction for the repealed Act as advocated in the case of Director of Public Prosecutions v Maesala^[5] where it involves an incestuous relationship between a brother and sister, is 2 years imprisonment. However, this old legislation has been repealed with the maximum penalty for this offence now increased from 7 to 10 years imprisonment. In my view, our Parliament has made a remarkable step in recognizing the need to protect the victims of sexual offences from being abused or molested by their own close family members and also, the stern need to discourage this offending in our societies and the country as a whole. Therefore, there must be a corresponding duty expected from the Courts to increase the penalties for this offending when it comes to sentencing, otherwise, the previous maximum penalty could have remained.
    
19. The sentence I that will impose will not only reflect his mitigating and personal circumstances, but must able to send a strong message that this offending must be discouraged in our societies. I have noted the accused has very important family responsibilities and the likely consequences that they will have on his family if he is imprisoned. In my view, his family responsibilities and the effect the sentence may have on them are matters for him who offends and not the Court. This proposition was well explained and settled in the case of Gegeo v R^[6] which I am bound to follow.
    

Sentencing Orders

20. Upon hearing the submissions from the prosecution and the defence, I hereby sentence, Redley Manekoto, as follows:
    
    • (a) Count 1 – incest by male contrary to section 163(1)(c) and (2) of the Penal Code (Amendment) (Sexual Offences) Act 2016 – 3 ½ years imprisonment;
      
    • (b) Count 2 - incest by male contrary to section 163(1)(c) and (2) of the Penal Code (Amendment) (Sexual Offences) Act 2016 – 3 ½ years imprisonment;
      
    • (c) Count 3 - incest by male contrary to section 163(1)(c) and (2) of the Penal Code (Amendment) (Sexual Offences) Act 2016 – 4 years imprisonment because he never step back and learnt from his previous two offending. I regard this incident as aggravated by the previous offences culminating in the term of sentence imposed herein; and
      
    • (d) Intimidation contrary to section 231 (1) of the Penal Code – 6 months imprisonment.
      
21. All sentence will run concurrent meaning, he will serve 4 years imprisonment.
    
22. Any presentence detention period is to be deducted.
    
23. 14 days right of appeal applies to any aggrieved party.
    

.........................................................................................................
THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] [1993] SBHC 61, HCSI-CRC 8 of 1993
^[2] At page 1 of the sentence
^[3] (19/09/05) N2614
^[4] [1993] SBHC 61, HCSI-CRC 8 of 1993
^[5] [1989] SBHC 9; [1988-1989] SILR 145
^[6] [1991] SBHC 8; HC-CRC 002 of 1991