Regina v Poloso [2006] SBHC 33; HC-CRC 346 of 2005 (3 August 2006)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 346-05

REGINA

V.

AARON BEN POLOSO

High Court of Solomon Islands
(Palmer CJ.)

Date of Hearing: 27th July 2006
Date of Sentence: 3rd August 2006

For the Crown: Mr. Talasasa (DPP)
For the Accused: Mr. Anders (Public Solicitor’s Office)

Palmer CJ: The defendant, Aaron Ben Poloso ("the Defendant") is charged with defilement contrary to section 142(1) of the Penal Code. This is a serious offence under our laws and carries a maximum of life imprisonment. This law prohibits any person from having sex with any girl under the age of thirteen years. There is a very good reason for the existence of this law as it seeks to protect our young children from being spoiled at a tender age by adults when they are still incapable or immature in making appropriate decisions regarding the use of their bodies.

The victim was only nine years old at the time of commission of the offence and is a close relative (niece) of the Defendant. They lived together in the same house. The Defendant was about 19-20 years old at the time of commission of the offence. He puts his birth date as 1986.

On 10 April 2005, at about 7 – 8 o’clock in the morning, he gave the victim some money and told her to go to Hamarakeni Primary School, some distance from their house to buy a roll of tobacco for him. When she returned, the Defendant met her near a bridge. When she handed the roll of tobacco to him, he grabbed her, pulled her into a betel nut plantation nearby and had sex with her. The victim was never a willing party to the incident, though whether she had consented to it or not was immaterial.

Each case has to be dealt with on its own facts, but the Court of Appeal in Mulele v. Director of Public Prosecutions and Poini v. Director of Public Prosecutions ("Mulele and Poini") [1985-1986] SILR 145 did point out some matters which may be taken into account. These include disparity of age, abuse of a position of trust, a subsequent pregnancy and the character of the girl herself.

Sentences which have been imposed by the courts in the country vary greatly from suspended sentences in some instances to custodial sentences of up to five years for the more serious cases. Cases falling within the lower range include the situation where the age gap or disparity in age between the defendant and victim was less, where the victim had some part to play in the sexual encounter and where they were boyfriend and girlfriends. In Regina v. Craig A’aron HCSI-CRC 14-98, 4 November 1999 per Kabui J. where the victim was 11 years 10 months, the defendant only a little bit older and the offender not in a position of trust, the learned Judge imposed a sentence of 9 months suspended for one year. In Berekame v. DPP [1985/1986] SILR the High Court had imposed a sentence of 18 months but was reduced on appeal to 9 months. The Court of Appeal felt the High Court had not taken into sufficient account the circumstances of the case which included:

(a) the delay between the commission of the offence and the hearing of the matter,

(b) plea of guilty to the charge,

(c) the appellant’s previous good character,

(d) the appellant’s good work record,

(e) the appellant’s sexual inexperience, and

(f) that they were friends prior to the offence.

The court also made reference to the relevance of custom in mitigation that it could play a part in assisting the court reach a proper sentence to be passed.

In Regina v. Rasini & Others HCSI-CRC 25-90 11 April 1990 per Ward CJ, the court imposed varying sentences ranging from 6 months – 9 months and all of the sentences partially suspended, resulting in sentences of 3 – 5 months only having to be served. The court took into account the character of the girl as the initiator and that she played a part in the lead up to the offences. In Mulele and Poini (ibid) the sentences imposed were 4 years and 2½ years respectively. The age gap in Mulele was 40 years and 13 years. The victim was a step daughter having been raised by the defendant and his wife when she was 5 years old. It involved an abuse of trust position. The girl herself became pregnant and gave birth to a child. In R. v. Ligiau and Dori [1985/1986] SILR 214, it involved the rape of a 12 year old girl and attempted rape of a 10 year 4 months old girl. The first accused was given a sentence of six years for rape and the second accused five years for attempted rape. The court gave credit for the guilty pleas, contrition and delay. In Regina v. Derrick Waeho HCSI-CRC 34-96, 4 June 1997, there was a six years delay in prosecution. The offender was about the same age, 12 years old as the victim. A conditional discharge was imposed by the court.

Courts in other jurisdictions have approached such offences in similar fashion. In Sottie Apusa, The State v [1988-89] PNGLR 170 (22nd May, 1989) per Brunton AJ, a case from Papua New Guinea, the court laid down some useful guidelines, which are equally relevant here. The facts relate to the offence of sexual intercourse with a girl below the age of 16 years. The offender was the step-father of the 15 year old victim. A total of six offences were committed over a period of four months. He entered a plea of guilty and was sentenced to a total of three years and two months. The court provided guidelines as follows:

"The following guidelines may be taken as appropriate to sentencing for the offence of unlawful carnal knowledge of a girl under 16 years contrary to s 216(a) of the Criminal Code (Ch No 262) for which the maximum prescribed penalty is five years imprisonment:

(1) & a lower range from dischaischarge up to 20 months, for cases where the accused and the victim are of similar age, where the accused is a young offender and the victim between 14 and 16 years and where the offender is disabled, or physically or mentally handicapped and the victim a consenting party;

(2) ـ&#1 middlmiddle rang range from 20 months to 40 months, for cases where the accused is a mature man and there are no circumstances of aggravation;

(30; an upper range from 40om n0 mont months to the maximum of five years, for cases where there are circumstances of aggravation, such as, cases where there is a relationship of trust and dependency between the accused and the victim, for example, teacher and pupil, medical carer and patient, and step-father/uncle relationships."

The learned Judge pointed out as follows:

"The middle of the sentencing range should be reserved for those cases in which mature men offend, without any circumstances of aggravation, and the upper part of the sentencing range should be for those cases in which there are aggravating circumstances. Where there is a relationship of trust or dependency between the accused and the victim there are circumstances of aggravation. The relationship of teacher and pupil is an example....

There are other relationships of trust which in my view constitute circumstances of aggravation in these cases. For example, within the medical profession, the relationship between doctor, paramedic, nurse and patient. It is within this broad category of trust and dependency that offences committed by "step-fathers" or "uncles" should fall, for the relationship between a step-father or "uncle" and a young girl may be one of complete confidence and love -- and to break that bond sexually may not only subject the victim to psychological damage, but is a betrayal, a form of personal treason."

In The State v. Thomas Pipon [1988-1989] PNGLR 179 26 May 1989, per Brunton AJ, another case from Papua New Guinea, the offender was 18 years old and the victim a child of 18 months. The accused had been asked to look after the child when the parents went out. As a result of the offence the child was discovered to have been infected with gonorrhoea. A sentence of 7 years with hard labour was imposed by the court. In his learned discussions on the subject, Brunton AJ sought to suggest a parity with rape cases for five years in a contested case, where the accused was mature and there were no other mitigating or aggravating circumstances.

The position in Solomon Islands for rape cases is also similar having been stated in R. v. Ligiau and Dori (ibid) that for a contested case without any aggravating or mitigating features, a figure of five years should be taken as the starting point. In my respectful view, a similar analogy can be adopted for defilement cases. Where aggravating features exist, for instance, two or more men acting together, or someone has broken into a place where the victim was living, or by a person in a position of responsibility, or where the victim is abducted, then the starting point will be much higher. It must be borne in mind that offences of rape and defilement under section 142(1) entail unlawful sexual intercourse which carry maximum terms of life imprisonment and so reflect the seriousness which Parliament attaches to them.

In his book "Principles of Sentencing" by D.A. Thomas[1], the range of 3-5 years given as the normal sentencing bracket for this type of offence is also a useful guideline for courts in Solomon Islands, although longer sentences can be upheld.

Aggravating factors in this case:

(i) The age of the victim is an aggravating feature in this case. The sentence to be imposed must reflect the seriousness and revulsion with which the public holds against this type of offence and the need to protect young children. The victim was only 9 years old and the offender about 19-20 years old. Where the disparity in age is small the seriousness of the offence is correspondingly reduced; the bigger the gap, the longer the period of incarceration to reflect the seriousness of the offence.

(ii) The position of trust the defendant has to the victim. In our Melanesian culture, an uncle is someone looked up to and expected to act as a protector; someone who can be trusted to look after and care for her. The defendant was living in the same house as the victim and so makes that relationship of greater significance and importance. Through lust and selfishness this defendant has not only violated that trust and betrayed his own niece, who in custom can be regarded as his daughter, but has also violated what our customs would regard as tribal taboos.

(iii) This act has not only violated this child’s self esteem and innocence but caused physical injury which would have traumatized her further. Fortunately for her, the injury was discovered early and not as severe as to be life threatening.

(iv) The facts indicate that the child played no part in the commission of the offence. She was never a willing party to the offence. Despite her resistance the defendant persisted with the commission of the offence. The circumstances were tantamount to an offence of rape.

(v) The effect of this type of offence is likely to remain with the victim for some time.

Mitigating factors

The aggravating factors on the other hand must be balanced with the following mitigating factors.

(i) The age of the defendant, being 19-20 years. He is still very young, has no previous convictions, a first offender and sexually inexperienced it seems. This is to be distinguished from the commission of a similar offence say by a more mature and sexually experienced man, in his forties or fifties.

(ii) His early guilty plea made right at the beginning which reflects and is consistent with contrition and remorse over what has happened. This has also saved the victim from the additional trauma of having to come to court and re-live the incident.

(iii) This was a one off situation and not repeated. He did not fully realise the extent of his offence until after. He now realises that and is determined not to re-offend. This is reflected in his cooperation with police over the matter.

(iv) His personal circumstances show that he assists other members of his family, five brothers in the payment of school fees. He is a copra cutter at their family plantation.

(v) Compensation plays a part in the settlement of disputes and in reconciliation processes. That has happened in this case and enables the offender to be accepted back into the community after his release from prison. I take this into account as well as being consistent with remorse and contrition and an acceptance on his part of his actions as being wrongful and a violation of the community and family’s harmonious and peaceful co-existence.

(vi) Also the tribal and community stigmas and stereotyping may remain with him for sometime.

Decision

The Doctor’s Report[2] shows that the victim has recovered from her physical injury. Her innocence and virginity however has been violated through one callous act. The effect of this will never be fully known until later; only time will tell. The trauma and mental scars are bound to continue for a long time. The purpose of this offence is to protect children, young girls from the indiscretions of adults. Persons in positions of trust, dependency relationships or positions of authority must realise it is wrong to take advantage of such positions and betray our young children and will be incarcerated for lengthy periods of time.

Our Constitution[3] upholds respect and enhancement of our human dignity. Section 142(1) of the Code seeks to protect the human dignity of our children. The Preamble to our Constitution also refers to the "worthy customs of our ancestors" and in Schedule 3 to the Constitution at section 3(1) customary law is recognised as part of the law of Solomon Islands. The violation of a child is as wrong in any "customary law" of any society in Solomon Islands; a fortiori, by a close kin; in this case an uncle. The seriousness of such offence as recognised by the Constitution, the Penal Code and customary law though must always be balanced with the mitigating factors raised by this defendant.

In considering the appropriate sentence to be imposed, I take into account the importance of not imposing a crushing sentence upon the Defendant as a young first offender who has pleaded guilty as against the need for punishment, retribution and deterrence. In so doing and giving credit to his mitigating points, I convict him of this offence and sentence him to 3½ years imprisonment. The period spent in custody is to be taken into account.

Orders of the Court:

1. Convict Aaron Ben Poloso of the offence of defilement contrary to section 142(1) of the Penal Code.
2. Impose sentence of 3½ years imprisonment.
3. The period spent in custody is to be taken into account.
   

The Court.

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^[1] 2^nd edition (1979) at page 124-125
^[2] Report of Dr. Rex Maukera dated 18 April 2005
^[3] Paragraph (c) of the Preamble to the Constitution