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Regina v Ningalo - Sentence [2013] SBHC 44; HCSI-CRC 78 of 2008 (15 April 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

–v-

JOHN NINGALO

Date of Hearing: 5th and 11th April 2013.
Date of Judgment: 15th April 2013.

Mr. A. Kelesi for the Crown.
Mr. H. Kausimae for the prisoner.

SENTENCE

Apaniai, PJ:

1. The prisoner, John Ningalo, was charged with 4 counts of incest under section 163(1) of the Penal Code. He has pleaded guilty to all 4 counts and was accordingly convicted. He now appears for sentence.
   
2. The agreed facts are as follows. The prisoner is from Reef Islands in Temotu Province. In 2004, he came over to Honiara with the victim, Janet Sikaio, who is his daughter and settled at the Henderson area.
   
3. The first incident happened at Henderson area on an unknown date between 1st April and 31st August 2005. In the afternoon of that day, the prisoner had told the victim to go to a nearby garden close to their house. She initially refused to go but eventually did so after further persuasion by the prisoner. The prisoner then followed her to the garden. He told her to undress and there he had sex with her.
   
4. The second incident also happened at Henderson area on an unknown date between 1st August and 31st December 2005. At that time, the prisoner was clearing their garden. He called out to the victim to come to him in the garden. She did. He then told her to go to a nearby bush where he would poke coconut. The victim complied with his instructions. The prisoner then caught up with her and had sexual intercourse with her in that bush.
   
5. The third incident happened also at Henderson area on an unknown date between 1st October and 30th November 2005. The accused had again told the victim to go to their garden, which was close to their house. He then followed her to the garden. There he again had sex with the victim.
   
6. The fourth incident happened near the Telekom Recreational area in Honiara ("Telekom area") on an unknown date between 1st and 31st December 2005. The victim was at Bokonavera 4 in Honiara when the prisoner went and told her to accompany him to her auntie's house to KGVI. When they reached the Telekom area, the prisoner told the victim to walk to a rain tree between the Telekom area and the Commonwealth Youth Programme Building. She refused but the prisoner pushed her towards the tree and there he had sex with her. Those are the facts as agreed.
   
7. Under section 163(1) of the Penal Code, the maximum sentence for incest is 7 years imprisonment if the victim is of the age of 13 years or more. In this case, the victim was 16 years old at the time of the offence.
   
8. Incest is a very serious offence and therefore, as a general rule, a custodial sentence is inevitable. To deviate from that general rule, it must be shown that exceptional circumstances exist which would justify such deviation.
   
9. The seriousness of the offence of incest, or any other sexual offence for that matter, lies in the fact that it is an offence, which is committed out of a selfish desire for sexual gratification in total disregard for the rights and dignity of the victim. Such behavior amounts to nothing more than a betrayal of the child's expectations for parental protection. It also amounts to abuse of authority and it is a very serious breach of trust on the part of the father.
   
10. In Solomon Island's culture, the stigma of a child having been violated by her own father is one that can last for a considerable part of the child's life, if not her entire life. The child loses her self-esteem and the shame inhibits the child from enjoying the freedom of movement and association that she needs in order to enjoy life to the full. The emotional and psychological damage done to the child can also be of immense proportion.
    
11. These are aggravating factors that the court is entitled to take into account in determining the appropriate sentence in such cases as this.
    
12. Of course, in considering the appropriate sentence, the court must also take into account such mitigating factors as are available in favour of the prisoner and the range of sentences imposed for similar offences in the past.
    
13. In this case, the prisoner had pleaded guilty thereby saving the victim from the embarrassment of having to relate these shameful incidents in court. The guilty plea has also saved the costs of having to call witnesses. I am satisfied that in pleading guilty, the prisoner had shown remorse and I am sure the prisoner will live for a considerable length of time with the guilty conscience that he had sexually violated his own daughter. I have taken these mitigating factors into account.
    
14. The prisoner has admitted two previous convictions, the first being a conviction for assault causing actual bodily harm dated 28th May 1990 and the second being for malicious damage also dated 28th May 1990. He was fined $50.00 each for the two offences.
    
15. Counsel for the prisoner had asked that these previous convictions be disregarded due to the fact that they were committed 14 years ago and the prisoner had lived a crime free life for those 14 years.
    
16. I accept that submission. It is settled law that the court should not be guided merely by previous convictions and, if the offence for which punishment is to be awarded does not indicate a deliberate return to crime and there are circumstances, which do not show that the offence was planned beforehand, less weight is to be given to previous convictions. More weight should be given to previous convictions for offences of the same character as that for which the offender is to be punished than to convictions for offences of a different character[1].
    
17. The present charges are not of the same character as those in respect of which the prisoner had been previously convicted. I will therefore treat the prisoner as a person with no previous convictions.
    
18. Apart from these mitigating factors, I have also taken into account the length of time that has lapsed since the time of commission of these offences until now, which is approximately 7 years.
    
19. In my view, where there has been a lengthy delay in bringing a case to finality, whatever the reasons may be, fairness to the prisoner requires that weight should be given to the fact that he has been left in a state of uncertain suspense as to what will happen to him when he comes up for sentence in due course. Furthermore, weight should also be given to the fact that sentencing for a stale crime, long after the commission of the offence, calls for a good measure of understanding and flexibility of approach. This is particularly so where the delay is not that of the prisoner's own making.
    
20. In this case, there is no indication as to why the case has taken so long to finalise. I will therefore give the prisoner the benefit of the doubt and regard the delay as being on the part of the Crown.
    
21. As for previous sentences for incest cases, I have taken into account the sentences passed in the following cases.
    
22. In Roko v R[2], the prisoner pleaded guilty to, and was convicted of, 4 counts of incest on his 16 year old daughter. The prisoner was sentenced on appeal to 2 years for count 1 and 3 years each for counts 2 to 4 to be served concurrently. In R v Atkin[3], the prisoner pleaded guilty to a number of counts of incest and was sentenced to 2 years for count 1 and 2 years each on the remaining counts to be served concurrently. In Kyio v R[4], the prisoner was convicted of incest on a plea of guilty and sentenced to 2 years with 1 year suspended. In Toke v R[5], the prisoner was convicted after trial and sentenced to 5 years for having sex with his 15 year old daughter. In R v Hagataku[6], the prisoner was convicted on his own plea of guilty of incest and sentenced to 3 years. In Nanai v R[7], the prisoner was convicted on his own plea of guilty of incest and sentenced to 2 years. In Fuilorentino v R[8], the prisoner was convicted of 14 counts of incest on a plea of guilty and, on appeal, was sentenced to 3 ½ years concurrent. In R v Buto[9], the prisoner, who was a police officer, was convicted on his own plea of guilty of various offences committed on his daughter (10 years old), including incest, and for the offence of incest, he was sentenced to 6 years imprisonment despite the fact that he was a first offender. In R v Wanago[10], the accused had pleaded guilty to 2 counts of incest upon his 15 year old daughter and was sentenced to 4 years on each count to be served concurrently.
    
23. Having regard to the aggravating and mitigating features of this case, especially as regards the delay, and having further regard to the range of sentences imposed in respect of similar cases in the past, it is my view that the appropriate sentence in this case should also be 4 years for each of the 4 counts.
    
24. As to whether the sentences should be consecutive or concurrent, I consider that the sentences should be concurrent. The offences were committed on the same victim over a period of approximately 6 months. Hence, while the offences were separate, the proximity in the time of commission of the offences justifies concurrency in the sentences.
    
25. The orders of the court are:-
    

(1) The prisoner is sentenced to 4 years imprisonment for each of the 4 counts.
(2) The sentences shall be served concurrently.
(3) The period already spent by the accused in custody shall be taken into account in calculating the 4 year imprisonment term.

THE COURT

________________________
James Apaniai
Puisne Judge

^[1] Grayson v The King (1920) 22 WALR 37.
^[2] [1990] SBHC 99
^[3] CRC 18 of 1994
^[4] CRAC 259 of 2004
^[5] CRAC 50 of 1998
^[6] [1993] SBHC 61
^[7] [2005] SBHC 74
^[8] CRAC 87 of 2008
^[9] CRC No. 61 of 2009.
^[10] CRC 348 of 2012.