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Regina v SK [2007] SBHC 141; HCSI-CRC 566 of 2005 (27 November 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 566 of 2005

Regina

v.

SK

(Palmer CJ.)

Date Hearing: 11th October 2007
Date of Sentence: 27th November 2007

N. Mirou for the Crown
Ms. G. Brown for the defendant

Palmer CJ.:

1. The defendant is a juvenile and for purposes of this sentence shall be referred to as "SK". He was only sixteen years old at time of commission of offence.
   
2. He pleaded guilty to a charge of murder of a six year old child, (hereinafter referred as "the deceased"). The offence was committed at Nasuragina village, Star Harbour, Makira Ulawa Province on 31st March 2005. He has been in custody since 1st April 2005.
   
3. There were concerns expressed as to his fitness to stand trial and so a psychiatric report was directed to be prepared. Due to the unavailability of any national qualified psychiatrist in the country, a report could not be obtained until much later this year from Dr. Stephen H. Allnut M.B.Ch., B., FRCPC, FRANZCP. In his report dated 7th August 2007, Dr. Allnut made the following conclusions:
   

"I did not believe that he suffers from Post Traumatic Stress Disorder. There is no evidence of ongoing symptoms of Psychosis. He does not manifest a cognitive deficit.

...There is evidence to suggest juvenile delinquent behaviour.

...His functioning in my view, is currently adequate."

The learned Psychiatrist concluded that SK did not manifest a psychiatric condition of a nature and severity that it would cause him to be unfit to stand trial.

In his risk analysis of the defendant he stated as follows:

"...Factors associated with increased risk of recidivisim that are present include:

there is evidence to support the view that your client suffers from a tendency to engage in sexually deviant behaviour, based on the reports by others that he has been involved in spying on them, that he has approached younger children and given that he has sexually assaulted a young child in the context of his offending-these reports if true suggest that your client has an underlying paraphilia involving voyeurism; the nature of the offence appears to have been callouse with little empathy for the victims beyond your client’s immediate need to personal sexual satisfaction, and while I cannot conclude a sadistic paraphilia; there is evidence that your client has been exposed to physical abuse in the past; he appears to have difficulties in forming intimate relationships, although consideration does need to be given to his age; there is evidence that his onset of offending has occurred at a relatively young age; the offence involved physical coercion and given the age of the victim psychological coercion; both victims were unrelated females although they were not strangers; there appears to have an escalation in his offending on that day with 2 victims and offending occurring despite high risk of detection-while this might be due to naivety and or bravado on the part of the offender, it might also be indicative of the strength of the underlying drive to engage in sexually deviant behaviour; he manifests limited understanding of the antecedents and triggers that predispose him to offending behaviour in the future; it is difficult to provide an opinion on his attitude the offences in the absence of more observation and interview of your client; he has never been involved in a committed intimate relationship; on face he appears to be on the periphery of his peer group which suggests difficulties managing interpersonal relationships."

4. The learned Psychiatrist describes SK as falling into a moderate to high-risk group for future sexual recidivism and that his risk profile could increase to a high risk group. He recommended the following treatment plan. (i) That SK be engaged in some form of psychological counseling, with a psychologist with experience in managing sex offenders; and (ii) that a consultation with a psychiatrist would be beneficial as he is experiencing some Adjustment Disorder difficulties which could develop into a Depressive Disorder.
   
5. I had also directed that a social welfare report be obtained regarding this case. Timothy Tabare ("Tabare") Social Welfare Officer from the Social Welfare Division has furnished this court with his report dated 7th September 2007.
   
6. His report canvassed the views of people in the little village of Nasuragena, in particular the chief and close relatives of SK and the deceased, regarding any objections or concerns they may have if SK were to be released back into the community.
   
7. In his report Tabare pointed out that most of the people in the village were related in one way or another. The Chief of the village, Joshua Pepere for instance is an uncle of SK and grandfather of the deceased. SK and the deceased were first cousins. SK’s mother and the deceased’s father are brother and sister.
   
8. Tabare also pointed out that compensation in the form of thirteen red money and $500.00 cash had been paid to the parents of the deceased to resolve the matter. The reconciliation was conducted in church as well and in the presence of a police officer, Reuben Wakitawa, a Provincial Member Hon. Alfred Mare, a Pastor from the SSEC Irastus Alfe and an Anglican Priest, Fr. Dudley Wapira.
   
9. Tabare stated that if released SK will be taken custody of by his grandparents who had previous custody of him from birth.
   
10. The only reservations expressed in the report related to the mental retardedness complained of and concerns of some past epilepsy seizures. The last seizure however which SK could recall was in 2004.
    
11. Murder carries a mandatory life sentence for adults. In this instance, being a juvenile a life sentence is the maximum.
    
12. Credit must be given for a guilty plea. This has saved everyone court time and expense, and consistent with remorse and contrition. The report of Dr. Allnutt also showed that SK was sorry and ashamed about what had happened.
    
13. He is given credit as a first offender, he has no previous convictions.
    
14. I bear in mind the views, concerns and opinions of Dr. Allnutt in my decision for sentence.
    
15. In Regina v. K[1], this court imposed a sentence of 8 years for murder in which K had shot and killed a member of the Melanesian Brothers at the direction of the leader of a militant group. He had been in custody for some 3 or so years and was released into the custody of a guardian to serve the rest of his term in the community.
    
16. In comparison, the circumstances of this offence can be distinguished from Regina v. K.. Whilst the seriousness of what happened in the killing of a very young child cannot be denied, the personal circumstances of SK play a significant role in the commission of the offence. A normal person in his right mind would not have committed such an offence. The defendant is the first cousin of the deceased. Their mother and father are brother and sister. In Melanesian culture, an older relative has obligation to look after a child. To that extent, the defendant was obliged to look after the deceased. Tragically there was no such sense of obligation in this instance.
    

Instead the explanation provided to Dr. Allnutt was that SK told him about hearing voices which he felt compelled or controlled by to kill the deceased. Whilst the desire for sexual gratification may have been the motive, the way and manner in which it was carried out was perverse. He sexually assaulted the deceased after it seems he had killed her.

17. Whilst punishment for the offence must be imposed, the elements of protection and rehabilitation must play a prominent part in this defendant’s case. There must be a balancing exercise between protection and rehabilitation. While the public need to be protected there is good prospect of rehabilitation with the right type of treatment, supervision and counseling.
    

Leaving him to spend the rest of his time in jail may have the downside that he becomes so institutionalized that when he does get released eventually he may never be able to re-adjust to society and may become more a liability to his family than anything else.

18. On the other hand, if released now he must be supervised and his progress monitored regularly. I am satisfied there are persons in his village/community that have expressed willingness and commitment to take him back into their care and look after him. I am satisfied that as a result of what has happened the whole village is now alerted to him as a person with some disability and that he will need that extra attention and supervision to help him re-integrate into their community. I am satisfied there is no negative feed back from the community in which he resides of having him returned to their care to complete his sentence.
    
19. As to the length of sentence to be imposed, I am satisfied a sentence of seven years is appropriate in this case. I will order however that he be released conditionally to serve the rest of his sentence in the custody of his grandparents or some close relative in his village. The conditions of release shall include the following:
    
    1. That an undertaking is filed by his grandparents or a close relative that they will be responsible for his care, upbringing and supervision in the village.
       
    2. That he be seen by a member of the Anglican Priesthood who can assist him through counseling, prayers and deliverance sessions as is considered appropriate.
       
    3. That he keeps the peace and be of good behaviour
       
    4. That a social welfare officer visit him every four months thereafter until the full term of imprisonment has been completed and file a report with the court regarding his progress.
       

ORDERS OF THE COURT:

1. Enter conviction for murder.
   
2. Impose a sentence of seven years.
   
3. The period spent in custody to be taken into account.
   
4. That he is to be released on the following conditions:
   
   • (i) an undertaking is filed by his grandparents or a close relative for his care, upbringing and supervision.
     
   • (ii) That he is seen by a member of the Anglican Priesthood as soon as possible whilst in prison in Rove to assist him with counseling and prayers as is considered appropriate before his release.
     
   • (iii) That he keeps the peace and be of good behaviour for the rest of the term of his sentence served in the community.
     
5. That a social welfare officer visits him every four months until the full term of imprisonment has been completed and file a report with the court regarding his progress.
   

The Court

^[1] CRC 419-05, unreported (6^th December 2006).