Regina v Okisi [2008] SBHC 79; HCSI-CRC 72 of 2007 (12 December 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 72 of 2007

REGINA

V

KENDLEY OKISI

High Court of Solomon Islands
(Palmer CJ.)

Date of Hearing: 5th, 15th - 19th - 23rd September, 16th October, 24th October, 31st October 2008

Date of Judgement: 27th November 2008
Date of Sentence: 12th December 2008

R. Christensen on behalf of the Director of Public Prosecutions
R. Tovosia for the Defendant

Palmer CJ.

1. You have been convicted of a total of five counts of indecent assault[1]. The maximum sentence for this type of offence is five years. The law classifies this type of offence as a serious offence reflected in the maximum sentence which the court can impose.
   

2. Those offences were committed over a period of time on separate occasions stretching from 1st February 2005 to 16th June 2006[2]. This is quite a long time, over a period of some 16 months, to continue with this type of offence. You had initially been charged with a more serious offence of defilement which carried a maximum sentence of life imprisonment but acquitted and convicted of a less serious offence.

3. You did not desist or stop despite the refusal and protests of the victim. This is an aggravating factor to your offending.
   
4. The victim to this case is a very young girl under the age of 13 years. This is to be contrasted to the disparity in age between you and her. You were 41 years old at time of commission of those offences. The age difference is huge. This is an aggravating feature. As an older man, it is presumed that you will be more mature and responsible in your actions towards this child. Your actions did not reflect your age and maturity.
   
5. You were also in a position of trust, as her step-father. You married the mother in 1998. The victim[3] would have been five years old when this happened and you had been responsible for her growth, development and well being since. You took advantage of that position of trust and abused it to your personal gratification.
   
6. I note in your favour no actual violence was involved in the commission of the offences but they were accompanied by threats. You frightened her into submission. You did not desist in spite of her protests and refusals.
   
7. It is not correct to say that you have demonstrated remorse for you had entered a not guilty plea, denied commission of the offences and put forward alibi evidence. I note however that you are now sorry for what you have done.
   
8. Credit is given for the fact that you are a first offender; you have not been in trouble with the law previously.
   
9. A number of comparative sentences have been referred to for my consideration. These included the following cases.
   

9.1. In Regina v. Tahinao[4] a custom "doctor" was sentenced to 12 months for indecent assault. He had also been charged with rape and the overall sentence had been 6 years. The aggravating feature in that case was the position of trust reposed in the defendant.

9.2. In a similar case, Tebounapa v. Regina[5], the Court of Appeal upheld a sentence of 6 years for rape. The sentence of 12 months for indecent assault was accepted as within the range for that type of sentence.

9.3. In Regina v. Hiolohaona[6], Ward CJ. acquitted the defendant of rape but convicted him of indecent assault and sentenced him to imprisonment for 4 years. The aggravating factor in that case was the use of determined and sustained violence to overpower the victim.

10. Your case is distinguishable from those cases. This was a serious case of indecent assault which occurred over a long period of time. You had time to think through what you were doing and to come to a realisation that it was wrong and to stop. Even when the victim protested or refused your advances you did not stop. You were in a clear position of trust and responsibility and you breached that. An immediate sentence of imprisonment is inevitable in this case.
    
11. I take into account the element of deterrence which is important in this type of cases that those who abuse their trust in this type of situations must expect an immediate custodial sentence.
    
12. I accept your apology that you are now sorry for what you had done. Ms. Christensen is correct that there has been no remorse shown other than an apology after conviction.
    
13. An appropriate sentence, taking into account all your mitigating factors, including the fact that you are a first offender, that some form of reconciliation had been down with your wife and the victim and some form of compensation paid, that after the commission of those offences you continued to reside with your wife, that the victim is no longer residing in your family home and that you have indicated that you intend to return to your wife, is one of 3 years.
    
14. I impose sentence of 3 years on each count. I have considered whether to make them consecutive but realise that to do so will have a crushing effect on you. I will make them concurrent therefore. The period spent in custody is to be taken into account.
    

ORDERS OF THE COURT:

Impose sentence as follows:

Count 4: impose sentence of three years;

Count 7: impose sentence of three years;

Count 9: impose sentence of three years;

Count 10: impose sentence of three years; and

Count 11: impose sentence of three years.

Direct that all the sentences to run concurrent to each other.

The period spent in custody to be taken into account.

The Court

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^[1] Counts 4, 7, 9, 10, and 11.

^[2] Count 4: 1^st February 2005; Count 7: 25^th December 2005; Count 9: 4^th March 2006; Count 10: 13^th April 2006;
Count 11: 16^th June 2006.
^[3] DOB: 14^th July 1993.
^[4] [2006] SBHC 58; HCSI-CRC 369 of 2004 (13 February 2006)
^[5] [1999] SBCA 5; CASI-CRAC No. 2 of 1999 (4 June 1999)
^[6] [1991] SBHC 58; HCSI-CRC 11/91