In The High Court of Tuvalu
At Funafuti

Criminal Appellate Jurisdiction

HC Crim. App. 1/11

Between:

Teatufiti Semi Vine
1st Appellant

And:

Tokanimanu Raobu
2nd Appellant

And:

V

Regina

M Agaifo for appellants
Attorney General for respondent

Hearing: 15 March 2011 
Judgment: 21 March 2011

Judgment

[1] Both appellants in this case, who are second cousins, were charged with having sexual intercourse with a collateral, contrary to section 158(1) of the Penal Code. That section provides:

"Any native who had sexual intercourse with a collateral either by blood or adoption up to and including a second-degree of cousinship shall be liable to imprisonment for five years."

[2] They admitted the offence and each was sentenced, on 18 February 2011, to one and a half years imprisonment. They both appeal against sentence on the grounds that it was manifestly excessive in the circumstances and that the learned Senior Magistrate erred in fact when he stated that he did not receive the judgment of the Tuvalu High Court case R v Koliano Alama and Talitonuga Peni (Crim case 3/94).

[3] The case referred to was one in which Donne CJ explained, in considerable and careful detail, the approach to sentencing in cases under section 158 (1). He convicted the female offender but discharged her and convicted the male offender and released him to the supervision and control of the welfare officer for two years stating that, if no bad report was received in those two years, he too would be discharged.

[4] I do not set out the lengthy judgment in detail. He acknowledged that the offence had caused indignation and anger on the island where it occurred but concluded that, "it became manifestly clear to me that the preponderance of anger emanated from the moral indignation of the proponents rather than as a result of rational thought and an attempt to understand the offence, what prompted it and also in respect of the parties involved in their own agony and perplexity. I am therefore prompted to emphasise that this court is not a court of morals. It is a court of law and I, to the best of my ability, embark upon my task of sentencing by applying the principles entrenched in our penal policy as I understand them."

[5] He suggested that the penal policy of Tuvalu is in line with the penal policies of all progressive countries with systems of law similar to Tuvalu. He explained:

"That policy is based on long study and experience by penalogists -- those professionals whose job it is to advise on the most effective way of dealing with offenders. The aim of the policy is not only to reduce crime but to endeavour to change the attitude of offenders and, by counselling and direction, make them good people with a useful purpose in life. It has been proven over the years that retribution, i.e. "the eye for eye, tooth for tooth" approach, in dealing with criminals does very little to reform a criminal and nor does it achieve a crime free community. It is now generally accepted that the State in dealing with an offender should be primarily concerned with his rehabilitation and reform with retribution being resorted to only after the questions of reform and rehabilitation have been weighed. That is the policy of Tuvalu. That is a policy which must be applied by the courts in sentencing."

[6] He then considered the gravity of the offence and continued:

"It is relevant to consider the background to the inclusion of the crime of incest as provided for in the Penal Code. It is included in Part XVI. … which is stated to be concerned with 'offences against morality'. This is a rather archaic description of the offence. The concept of morality in relation to crime being confined, as it is in the Code, to sexual offences only is, I consider, inconsistent with the Christian view of morality . All crimes are immoral. The main purpose of treating incest as a crime stems from the indisputable fact that is unhealthy for persons of close relationship to cohabit and produce progeny. Medical history has shown that there is a high probability that progeny from liaison between certain relationships can suffer from mental and physical incapacity and it is proper to suggest the common law prohibited sexual intercourse between persons of specified degrees of relationship not because it was immoral but because it was not in the public interest to allow liaisons which could result in children being born to suffer. That being the prime cause, the degrees of relationship covered in the crime were those considered to be in the 'at risk' class. Second cousins were not included and are not included in the offence in most Criminal Codes. I mention this because, in dealing with the offence as applying in Tuvalu and assessing its gravity in specific cases, consideration should be given to the probable consequence of the liason in question -- in this case the cohabitation of these two second cousins and the resulting birth of the child. Now, while there is no medical evidence before me to quote, I consider it is an undisputable fact that there is no conclusive medical record of any child produced by second cousin parents who has ever as a result been born mentally or physically or constitutionally defective. I believe there could be no medical evidence to justify a different conclusion. Consequently, I am in this case approaching the task of sentencing holding the view that the offence committed by these two young people is in the lesser degree of gravity."

[7] Counsel for the appellants submits that, as a High Court case, that is binding on the lower courts and the learned Senior Magistrate should have received it in his 1consideration of the sentence in the present case. I pause there to say that sentencing is so much a matter for the individual judicial officer in each case that, apart from specific guideline cases, a sentence in one case can never be binding on a subsequent court. It can only be persuasive.

[8] It appears that the conclusions of Donne CJ were brought to the court's attention. The magistrate, in his judgment, referred to it but then stated, "no copy of the judgment of the High Court was being tendered at the time. So, the court will not consider this case law." In view of the emphasis being placed by counsel for the appellant on that judgment, that was an unfortunate approach for the magistrate to take. Clearly a copy should have been provided to the court but, when considering sentence, particularly of possible imprisonment, a court should take time to consider any matter properly mentioned. Any such consideration should not be determined on procedural failures but on the need to be properly informed of all matters relevant to the determination of the proper penalty.

[9] I have considered the judgement of Donne CJ and must, with the greatest respect to my distinguished predecessor, reach a different conclusion. There can be no doubt, as he states, that the description of incest as an offence against morality is outdated and inaccurate but the nature of the offence and the degrees of relationship which are covered in our law arise principally from the size of the population, the limited numbers in the outer islands and the customary approach to the problems which could arise as a result of those circumstances.

[10] The measure of that has been reflected in the legislation by the width of the prohibited degrees and the maximum penalty provided. The court should sentence against that background. The length and nature of that sentence within that overall five-year maximum must be determined on the consideration of the gravity of the offence and the circumstances of the offenders.

[11] As to the former, clearly the remoteness of relationship within the prohibited degrees is an important factor and, in the present case, as in the case heard by Donne CJ, the relationship between these two people put the case in the lowest degree of gravity. As to the second, it is an important aggravating factor that this relationship continued for more than a year and resulted in the birth of a child.

[12] Those are the factors upon which the court must make its determination. There is no room for the personal opinions of the judge in respect of the necessity for such an offence to be included in the Penal Code or of any overriding Christian ethics. The laws of Tuvalu have long been and still are founded firmly in Christian principles as the preamble to the present, and earlier, Constitutions clearly state and the legislation undoubtedly reflects that. It is not necessary or proper for the court to re-emphasise that in such a way as to ignore or modify the legislation under which the court is working.

[13] It is also incorrect to be influenced directly by public opinion. If such opinion requires a change in the law that is a matter for the legislature. In the present case, the learned magistrate referred to the maximum penalty and continued, "Because the offence in which the accused are charged, the public attract a lot of interest as they do not encourage [this] to happen. They urged the court to impose tough sentence. Therefore, the starting point of sentence must start at two years imprisonment". (My emphasis) That was an irrelevant consideration. The subjective views of people close to the offender or affected by the offence or even of the public as a whole may be taken into account but the 'toughness' of the sentence is entirely a matter for the magistrate's objective consideration of the case he is hearing.

[14] In the present case the learned magistrate gave a careful and reasoned basis for the assessment of what he considered to be the appropriate sentence. In that, he properly looked at matters of aggravation and mitigation many of which applied equally to both offenders. The court papers, at no point, state the present age of the offenders although it is possible to ascertain that the male accused was approximately 24 years old at the time of the offending. Age is always an important consideration and I have no doubt that court was informed .

[15] The principal difference between them appears, from the sentencing judgment, to have been that the male accused was married and there were two children of the marriage. The sexual relationship between the appellants started before he was separated from his wife. The magistrate also concluded that, "he must be more knowledgeable than the second accused on what to do".

[16] I consider there are two aspects of the sentence that this court needs to examine. I accept the magistrate's conclusion that an immediate sentence of imprisonment was appropriate in such a case. 

[17] The first aspect is the magistrate's assessment of the starting point apparently as a result of the public's demand for a tough sentence. As I have stated, the relationship between these appellants and their consequent culpability was the most remote within the range covered by section 158(1). I consider the proper starting point for the least grave offence under section 158(1) within the range of five years, should have been one year. I accept the magistrate's conclusion of the effect of the various aggravating and mitigating factors he mentions would reduce that starting point by approximately 25%. However, it is notable that he does not include, in the aggravating factors, the fact a child resulted from the illicit relationship. That, when included in the other factors contributing to the magistrate's 25% reduction, must result, instead, in an overall 20% increase from the starting point. 

[18] The second point that causes me concern is that, although the magistrate clearly considered the male offender to be more culpable than the female, that was not reflected in the sentence. Where the personal circumstances and culpability of co-accused vary, such variation may properly be reflected in the sentence and I do so. For that and the additional distress caused by the separation from her child, I allow, in her case, a further 30% reduction bringing it back to an overall 10% reduction from the starting point.

[19] Counsel for the appellants in a well presented submission pointed out that the facilities for female prisoners are inadequate and will prevent her being able to take care of her baby. That will have to be undertaken by her mother during the period of incarceration. No sentencing court can be blind to the distress that must cause. It is unfortunate that there are no facilities to allow a female prisoner to continue to look after her very young child and some very small allowance for that may, in an appropriate case, be taken into consideration. However the conditions in which the offender will be held and the effect on the offender's family are matters for the offender when committing an offence rather than the court when determining the appropriate penalty.

[20] The appeal is allowed. The sentences passed are quashed and the following sentences substituted:
Teatufiti Vine, 15 months imprisonment 
Tokanimanu Raobu, 11 months imprisonment.

Dated 21st day of March 2011

Hon. Gordon Ward
CHIEF JUSTICE