Regina v Ofonau [2017] SBMC 52; Criminal Case 379 of 2011 (19 October 2017)

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

CRIMINAL JURISDICTION

Criminal Case No. 379 of 2011

REGINA

-V-

TIMOTHY OFONAU

Prosecution: Mr. J. P. Teula of the PPO (Honiara)
Defence: Mr. L. Waroka of PSO
Trial: October 12, 2017
Verdict: October 16, 2017
Submissions: October 18, 2017
Sentence: October 19, 2017

SENTENCE

1. Timothy Ofonau, (“accused”) was convicted after trial of one count of cruelty to children, contrary to section 233(1) of the Penal Code. The maximum penalty for this offence is 5 years imprisonment.
   

Facts of the case

2. The facts that were established during the trial are these. The defendant is the biological father of the child, Kokomana Maedia. He has been in a domestic relationship with the mother of Kokoma, Ms. Hanau Rorou, but their relationship was unstable due to family disagreements over their cohabitation because they were first cousins.
   
3. On the 5^th of July 2010, Hanau took Kokomana and his younger sibling to the garden. That time, Kokomana was 4 years old. It was a rainy day and a river before the garden was flooding.
   
4. The defendant appeared in the garden and asked Hanau if they would go in the bush. She refused to follow the defendant and out of anger, he lifted Kokomana and said “because you less, me tekem pikinini ya go mekem hem hungere gogo hem die” meaning because she refused, he now takes away the child so that the child would starve to death or words to that effect.
   
5. He took the child out from the garden despite he was crying for his mother.
   
6. Hanau followed him but could not able to reach them so she returned back to the garden.
   
7. The defendant carried him for a distance of about 300 or 400meters from the garden and left him alone exposed in the rain at an isolated place inside the bush.
   
8. Later on when Hanau arrived in the garden, she then overheard him crying from a distance in the bush. Therefore, she followed the direction where the voice came from. She found him crying and shivering in the cold rain. She took him home, bathed and fed him.
   
9. I have been provided with copies of the prosecution and defence written submission. Unfortunately, the prosecution’s submission fall short of explaining the nature and extent of the defendant’s culpability other than just merely outlining the aggravating and mitigating factors with a nomination of a custodial sentence of 3-4 years. It appears by looking at face of the prosecution’s submission that it was too hastily prepared or one that was done in a ‘rush manner’ without any proper thought about where the defendant’s culpability should be placed in terms of the seriousness of the offence under section 233(1) of the Penal Code. This inability of such assistance makes the role of the sentencing Court very difficult in ascertaining where the starting point should be, taking into account the role of the prosecution in assisting the Court in every criminal trial.
   
10. The circumstances and the facts that gave rise to the commission of this case is sadistic and unfortunate. When taking a closer look at the nature of the offending, it involves the defendant deliberately took the 4 year old child out of the garden when he was angry with his mother. This was also accompanied by the defendant uttering threatening or uncaring words to the child’s mother moments preceding the commission of the offence. He decided to take the child away even though he knew it was raining the material time. Also, the child was left alone in the bush and totally exposed in the rain - cold and shivering. The defendant did not remain with him but abandoned him, treating him as another mere object. He did so even though he knew the child was crying and was scared of the strange environment he unfortunately found himself in. This is an inhumane conduct and child abuse. He had abused that trust bestowed on him to care for his son and had total disregard for his safety and security when he left him alone inside the bush. No sane father can ever do this to his own child. This is an act of utter cruelty or stupidity effected on an innocent child. The defendant should know that his child is a gift from God and he should consider him lucky to have such a precious gift when some married couples are lacking and still longing for one.
    
11. In the case of R v Ludawane,^[1] Palmer CJ, made this remarks which I think is important to adopt it here regarding the need for parents to appreciate and treasure their children, and not to abuse that precious gift:
    

“The most important gift any parent can be given is a son or a daughter. "Children are an heritage from the Lord, and the fruit of the womb is his reward" (Psalm 127:3). The word "heritage" means a blessing and a gift. Children are not property to do as one pleases, rather you are required to bring them up in the "nurture and admonition of the Lord (Ephesians 6:4)". There are many parents who spend more time taking care of their flowers and gardens, but spend little time on the most valuable gift in their hands, their children. A master carver or painter will spend hours to perfect the image of his carving or painting, how much more should parents on building, mentoring and training their children, so that the right image is produced in their children, based on Christian values and principles, of godliness, righteousness, honesty, love, hard work and truth. There is no perfect parent in this world but God gives his Grace to parents to enable them discharge their parental duties.”^[2]

12. The message echoed in Ludawane’s case emphasizes the need for parents to display love and care towards their children and not to abuse them even during the course of discharging of their parental duties. The defendant should take home this message as an advice or future point of reference if a similar instance resurfaces again in the future.
    
13. Even though there is no injury inflicted on the child, I find in such cases like this that follows a trial, the level of the offending herein speaks for itself that the starting point should be 2 years imprisonment. I nominate it since it only involves the taking and leaving of the child inside the bush in the cold rain, and not one that involves any assault so as to inflict injury or any bodily harm on the child. However, the presence of the aggravating factors alluded to earlier does have the potential of elevating the sentence from the starting point.
    
14. The only mitigating factor I considered in his favor is he is a first time offender. Otherwise, for his personal circumstances, I take into account that he is currently a married man with children. Three of whom he had with Hanau Rorou and the rest with his current spouse. However, he has no credit for remorse since he denied the charge and was convicted after the trial.
    

Delay

15. It is now about 7 years and 3 months since the commission of this offence to the time of this sentence. The record shows that he was charged by the Buala Police on the 17^th of July 2010. Again, this is also more than 7 years it took to have this matter finalized. For most of the past appearances, the defendant has been faithfully attending his matter. He had to travel from the other part of the Isabel Island to Buala town for his Court hearings. Not until this circuit, his matter finally disposed. This is very unfortunate and the delay herein should nevertheless be avoided had this case been proactively dealt with several years ago. I have perused the record and noted that the delay herein was caused substantially by the long delay of the Court for not conducting the circuit to Buala from July 2012 to September 2015. The accused upon realizing the Court circuits to Buala was reactivated, he then started to appear for his matter in October 2016. Thereafter, he faithfully attended to his Court hearings up until today.
    
16. The issue of delay has bearing on the sentence on offenders. This had been recognised and addressed by the Courts in a number of cases. One such overly cited case is the case of Patterson Runikera v Director of Public Prosecutions^[3] where then Ward CJ stated:

“Delay generally affects the sentence in three ways. It increases the anxiety of the accused man who has it "hanging over him" for that time. This will obviously only apply from the time of discovery of the offence – any delay before that is entirely in the hands of the offender. The second factor relates to the plea because any person must realise that, the greater the delay, the more chance the prosecution will be unable to prove their case. Thus, a plea of guilty entered with that knowledge becomes a strong mitigating factor. Finally, it gives the offender a chance, denied to many accused, of showing that he really does intend to reform and stop offending.”^[4]

17. Also in R. v. Todd,^[5] Street CJ, also explained the issue of delay and its implication on the sentence as follows:

"... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence: at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." ^[6]

18. In R v M W H,^[7] Callaway JA made the following remarks regarding delay and how it affects the offender during sentencing as follows:
    

The prisoner's age at the time of sentencing may mean that he is less likely to re-offence. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to reoffend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.”^[8]

19. These cases authorities advocated that where there is delay, the sentencing Court should be conscious of the additional pressures the offender will inevitably come to face in the imposition of the sentence. Also, the need for the Court to factor in this consideration when sentencing an offender.
    
20. For delay of 5 years or more for conduct not attributed to the offender, the case authorities have demonstrated and favored huge reduction of the sentence imposed. Even though there is no strict formula to this, it appears that the reduction is up to 2 years from the head sentence or even a suspended sentence following a trial. For example, in Kyio v R^[9], 2 years was reduced from the 5 years head sentence imposed on the offender for delay of 5 years to have his matter finalized for an incest charge. Also, in R v Oge^[10], Kabui J, (as he was then) imposed a sentence of 2 years for a rape trial but fully suspended for the delay of 5 years the charge has been hanging over the offender with no fault on his part. Another recent example is the case of R v Maelisu’u^[11] where the Court reduced half of 6 years imprisonment term to the offender for the charge of motor vehicle manslaughter whose matter had taken 7 years and 6 months to have it finalized. The delay therein was caused solely by failure of the Auki police to execute the warrant of arrest against the defendant and also, the failure of the Auki Magistrate’s Court for forwarding the committal brief combined with the failure of the prosecution to expedite the case in a timely manner.
    
21. In the present case, the defendant after the commission of the offence in 2010 has been fully rehabilitated and did not commit any further or new offence until today. Over the years, he had spent his time reforming his character by becoming a devoted Anglican Church member at his Nomino community. Furthermore, he and the mother of the child had already resolved this case and respectively took turn in looking after the child - Kokoma and his other siblings as well. The defendant has already moved on with his new life and remarried to his current wife. He also had children from this relationship. These significant changes occurred over the period this matter was delayed derailed by conducts not substantially attributed to the fault of the defendant.
    
22. I find the delay of about 7 years and 3 months herein is clearly unreasonable, excessive and inordinate. The delay is clearly undue to have his matter tried within a reasonable time as required under section 10(1) of the Constitution of Solomon Islands. This kind of delay could have been avoided at the first place had this matter been dealt with in 2011 or 2012.
    
23. The defendant must be given full benefit of this delay and the sentence to be imposed on him must reflect the delay this matter has taken to have it finalized.
    

Decision on sentence

24. To fairly reflect his culpability, the aggravating and mitigation factors, and the delay occasioned herein, I therefore sentence him to 2 years imprisonment but fully suspended for 2 years effective from 19^th of October 2017 on the condition that he will not commit any further offence during the operational period. The reasons to suspend his sentence are these. I feel it is not right for the defendant to be held in suspense for the past 7 years and later on, the Court then penalizes him with imprisonment and thus, depriving him from what he had gained and achieved in life over the past years in light of the excessive delay. Also, this offence^[12] is not a felony and thus, the excessive delay occasioned herein has substantially outweighs the need for condign punishment or even imprisonment.
    
25. Consequent to the imposition of the suspended sentence, if within that period of 2 years he commits another offence punishable by imprisonment, he will be called up by the Court to serve the suspended sentence or any other penalty that the Court may wish to impose on him.
    
26. 14 days right of appeal applies to any aggrieved party.
    
27. Order accordingly.
    

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

Augustine Aulanga – Principal Magistrate

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^[1] [2010] SBHC 128; HCSI-CRC 233 of 2008
^[2] At page 2 of the sentence
^[3] (Unrep. Criminal Appeal Case No. 14 of 1987)
^[4] At page 2 of the decision
^[5] [1982] 2 NSWLR 517 (CCA)
^[6] At pages 519-520
^[7] [2001] VSCA196 (1 November 2001)
^[8] At page 18 of the decision
^[9] [2004] SBHC 72
^[10] [2004] SBHC 72; HC-CRC 396 of 1999
^[11] HCSI-CRC No. 75 of 2010
^[12] Section 233 (1) of the Penal Code states: “(1) If any person who has attained the age of fifteen years and has the custody, charge or care of any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanour, and shall be liable to imprisonment for five years.” (underlined mine)