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R v Famaea [2024] SBHC 156; HCSI-CRC 311 of 2024 (18 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 311 of 2024

REX

V

PHILIP FAMAEA

Date of Hearing: 14 October 2024, 16 October 2024
Date of Sentence: 18 October 2024

Mr. S.K Tovosia for the Crown
Mr. O. Limeniala for the Defence

SENTENCE

Faukona DCJ:

1. The accused Philip Famaea was charged for murder contrary to section 200 of the Penal Code.
2. The facts are that on 20^th May 2024, while alone with his elder daughter, 6 years old, and his deceased daughter 9 months old, he brutally assaulted his daughter Joyce Bubuko who was 9 months old at that time, causing her immediate death. After the incident the accused fled the village but was apprehended later.
3. On 14^th October 2024, upon arraignment the accused entered a plea of guilty at first instance.
4. The charge of murder carries a mandatory penalty of life imprisonment. There is no provision in law that provides for any optional sentence.
5. Therefore, upon entering a plea of guilty to the charge of murder, I convict the accused (Mr. Philip Famaea) accordingly and sentence him for life imprisonment.

Submissions as to minimum term to be served.

6. As recent as 13^th October 2017, the Court of Appeal in the case of Ludawane v Regina^[1], which stated that it as mandatory that in convictions for murder, the Court is obliged to state what is its view should be the minimum period of sentence to be served before the prisoner be considered eligible for parole.
7. Section 5 1 (a) of the Correctional Services (Parole) (Amendment) Regulation 2020, also state subject to sub regulation (3) and (4), a convicted prisoner who is serving a life sentence may only apply to the Board for parole if the prisoner has served the minimum term of imprisonment set by the court on sentencing the prisoner.
8. The case of Ludawane provide guidance and set three sentencing regimes. They are: -
   1. Normal starting point of 12 years, where the killing was the result of quarrel or loss of temper, when the element of premeditation, planning etc were absent, and it happened in a spur of a moment.
   2. The second being higher starting point of 15/16 years. This category according to Ludawane case is regarded as serious category. This will apply to cases where the offender’s culpability was exceptionally high, or the victim was in a particularly vulnerable position. Such cases will be characterized by a feature which makes the crime especially serious. There are eleven features, one in my opinion will fulfil as a serious category is feature (7) where the victim was a child or was otherwise vulnerable.
   3. Third one is the worst scenario and in my respectable view not appropriate in this case
9. In deciding a starting point, the Counsel for defence is more supportive or in favour of the normal starting point of 12 years. His reasons are that the case of R v Sai^[2], the High Court had imposed a term of 15 years imprisonment to be served alongside with life imprisonment.
10. Other reason relies on is that in Sai’s Case the autopsy report reflected multiple wounds or 6 wounds in the external examination. Those include stab wounds, five small cut wounds and four slash wounds, and they are serious wounds sustained by the deceased.
11. On internal examinations the report recorded 3 ribs were cut, more cut from the posterior or back. There were other wounds on lungs, stab wound to the heart and wound from the back that enters the abdomen.
12. The level of culpability reflected by the autopsy report was serious however, the defence submits that the circumstances and level of culpability of the current case falls below that of Sai’s Case. And that supports his argument that the starting point should be lesser then 15 years or more so 12 years.
13. The argument by the prosecution based on different threshold than the case of Ludawane. This being;
    1. The relationship of the accused to the deceased, she was the daughter of the accused.
    2. As a father he had the duty to provide security, yet he grossly violated it.
    3. The child is an innocent person not knowing what was going on.
    4. The offence was committed in the presence of another sibling, a six-year-old child.
    5. The offending was done to a child who succumbed to her injuries as the result of the assault and consequently died immediately.
14. As I noted from the defence submissions that higher stating point apply to cases where the victim is particularly in a vulnerable position. In this case a child of 9 months according to paragraph (f) of the characterized features which make the crime the offending exceptionally high, is a vulnerable child.
15. After considering the opposing views of both Counsels, I decided that 15 years minimum term imprisonment decided in Sai’s case is a very lenient approach. It is not necessary for me to abide with that; however, I am only bound by the decision of the Court of Appeal.
16. Therefore, the starting point I concluded after considering the arguments is 16 years.

Aggravating Factors.

17. The aggravating factors as uttered by the prosecution is that the offence was committed on a 9 months old child. She was a helpless little baby who was murdered by her own father.
18. One slap at the chest of a child is as good as multi wounds suffered by an adult.
19. The accused is duty bound to take care and to protect his daughter from any harm. She is a vulnerable child in every legal description. The accused grossly violated his duty and did the opposite by taking the life of his own child.
20. The reason he gave for his brutal action was that she was not her child. That reason cannot be accepted. In fact, it was a lay excuse.
21. The killing was done in the presence of an older child of 6 years. She actually witnessed what her father did to her younger sister. She should not observe such an atrocious crime being committed. The level of trauma that, will haunt her for the rest of her life is eminent and unfathomed, seeing her sister being murdered by her own father.
22. Before the incident, the accused had previously expressed his intention to harm the child. This demonstrated a clear pre-meditated motive. The accused informed 3 of his close relatives of his evil plan which consequentially materialized.
23. The nature of offending was particularly brutal, including physical violence against a vulnerable and defenseless child. Having considered the aggravating factors which make the offence serious I consider and exercise discretion by increasing it 21 years altogether.

Mitigating factors.

24. What also can be said on behalf of the accused. The Counsel for defence has listed a number of mitigating elements.
25. The age of the accused as compared to the age of child is not a mitigating factor but aggravating feature, and cannot assist the accused in the current case.
26. All other personal factors as cooperation with Police, first time offender, bread winner, unemployment is not relevant in a charge of murder. Even including no weapon was used. A child of 9 months does not require weapon to exit her life away.
27. However, I consider that the accused has pleaded guilty to the charge of murder when he was arraigned. His pleas of guilty was entered at first opportunity. In doing so he acknowledges and accepts any subsequent consequences that the law may impose.
28. He now expresses remorse for what he had done. That can be understood on the basis that he only realized that the arm of law is now catching up on him.

Conclusion.

29. In conclusion this is the first case I have encounter where an accused person had brutally murdered his own child. Having realized the punitive arm of law is about to release its hammer, he entered a plea of guilty. That comes as a no surprise to me.
30. I consider a plea of guilty does not worth it. What had been done is more than just admission, it is barbaric in all. However, I give credit to the accused by pleading guilty which cut short what could have been a long tedious trial. With that I impose 3 years to be deducted from 21 years makes it 18 years a final minimum term to be served before he can be eligible for parole.
31. Whilst serving life time imprisonment 18 years is a minimum term to be served before, he could be eligible for parole.

Orders.

1. The accused is sentenced to Life imprisonment for the charge of murder.
2. A minimum term to serve is 18 years before he is eligible for parole.

The Court.
Hon. Mr. Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] [2017] SBCA 23; SICOA-CRAC 37 of 2016 (13 October 2017
^[2] [2020] SBHC 45, HCSI-CRC of 2017 (17 July 2020).