Lotau v Regina [2008] SBHC 82; HCSI-CRC 416 of 2008 (16 December 2008)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.416of 2008

IN THE MATTER OF: an application for bail

BETWEEN:

SELWYN LOTAU
Applicant

AND:

REGINA
Respondent

Date of Hearing: 12 December 2008
Date of Judgment: 16 December 2008

Ms. G. Brown for Applicant
Ms. N. T. Kesaka for Crown

DECISION ON BAIL

Cameron PJ.

1. The applicant Selwyn Lotau, a 39 year old male, is charged with raping his 12 year old step-daughter on 16 June 2008. She was in grade 4 at St. John's Primary School in Honiara at the time of the alleged rape. The applicant has been in custody since 18 June, and now applies for bail pending trial.

2. The alleged facts are that on the afternoon of 16 June 2008 the applicant was at home having been entrusted with the care of 6 children including the victim, while his wife (the mother of the victim) was out working. Between 3 pm and 5 pm, the applicant ordered all the children to go to sleep, 5 in the bedroom of he and his wife, and the victim in her own bedroom. He said to the 5 children in the other room that he would hit them if they did not go to sleep. While the victim lay on her bed as ordered, the applicant came into her room, told the victim not to shout, ignored her demand that he leave her room, whipped her across the face with a broom causing pain and fear in the victim, tore off her clothes, commanded her not to shout, committed oral sex on her, made unsuccessful attempts to penetrate her with his penis, told her not to talk when she complained that it was very painful, finally succeeded in penetrating her, had sex while sucking one of her breasts, ejaculated inside her, got off her and threatened to kill her if she told her mother, slapped her mouth, continued to threaten her, put his clothes back on and went out of the room. The victim had been a virgin.

3. It is alleged the victim was left in a lot of pain and was bleeding from her vagina. She and her brother reported it to their mother, the applicant's wife the next day.

4. As a result the victim's mother wanted to take her child to work with her. The applicant refused, demanding the victim remain at home. The victim did not feel safe being left at home, so her mother reported the matter to police that day. The applicant was arrested and taken into custody on 18 June, the following day.

5. In a record of interview with the police he admitted having sex with the victim, but claimed that the sex was her consent. He said he has had sex with the victim more than once.

6. The victim was medically examined on 22 June or 22 July 2008 (it is difficult to decipher the date), and in the opinion of the doctor, penetration had recently taken place as indicated by bruising on the cervix.

7. Not surprisingly, since the applicant's arrest, the marriage has broken down. The victim continues to live with her mother, and I am advised both reside in Honiara.

8. It is proposed that the applicant, if granted bail, will live with his cousin brother Police Sergeant Muia in Honiara.

9. The applicant has a history of criminal offending, though not for sexual crims. He has 13 previous convictions, mostly for burglary, housebreaking and larceny, committed from 1980 to 2005. He has received terms of imprisonment for 11 of his convictions. There is no history of breach of bail.

10. It is clear from his convictions that the applicant is a person of bad character. If granted bail, I consider there is a real risk that he will track down his wife and stepdaughter for the purpose of attempting to intimidate them into silence about the alleged incident. If the facts as alleged are true, then he is a very dominant and over-bearing individual who may well attempt to assert that dominance once again and for his own ends. He knows that if convicted on the appalling facts as alleged, he faces a lengthy term of imprisonment, so there would be a strong incentive to manipulate his family in this way. No conditions would lessen that risk sufficiently for me to grant bail.

11. There is a further reason for declining bail. The applicant's defence to the charge is that his stepdaughter consented to the sex. Inevitably this defence would require a consideration of whether in law a 12 year old is capable of providing informed consent. However, even if the Crown was unable to establish lack of consent at trial, by admitting to having had sex with a child who is 12 years old the ingredients of the offence of defilement are satisfied – see section 142 of the Penal Code. Thus assuming the record of interviewing is admitted into evidence at trial, then if the charge of rape is not proved the Court would be obliged to enter a conviction for defilement. A prison term would almost inevitably follow. To release the applicant on bail would be to ignore the reality that the applicant faces a prison term in any event.

12. For the reasons given, I decline to grant bail.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge