Regina v Desmond [2009] SBHC 3; HCSI-CRC 121 of 2007 (5 March 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 121 of 2007

REGINA

V

ALWIN DANNY DESMOND

Faukona, J:

Date of Hearing: 16th & 19th February 2009
Date of Ruling: 5th March 2009

Mr.Ooates for the Prosecution
Ms. Manning for the Defence

SENTENCE

Faukona, J.

The accused Alwin Danny Desmond, originally from Bougainville, was charged for two counts. Defilement of a girl under the age of 13 years contrary to Section 142(1) of the Penal Codes, and Assault, contrary to section 244 of the Penal Code.

Both charges said to have arise out of an incident that occurred between 8:00pm and 9:00pm on 14th September 2006, at Tasahe and Forestry Valley in Honiara.

The facts:-

The offender is a step father of Ariana Tangimoana, the victim of the defilement charge. She was 12 years at the time of the offence. Between 8:00pm and 9:00pm, on the 14th September 2006, the victim Miss Ariana went to White River School Soccer Field with her auntie Betty. Her auntie Betty was to meet her boy friend.

After a short while the victim decided to walk home. On her way she met the second victim Allen Kinika (15 years old and victim of the assault charge), and briefly spoke to him.

The accused approach them and grabbed both of them. He told them to go to White River Police Station. In fact they did not go there and walked past it. The accused then asked the second victim if he had any relatives. The second victim told him that he had an uncle at Tasahe. The accused said they would go there. While walking towards Tasahe the accused asked Ariana if Allen was her boy friend.

They walked past Allen’s uncle’s house. As soon as Allen told the accused they walked past the house, the accused slapped him on his face. The accused was armed with a knife and heard mentioning, "if it was still tension he would have killed him". They went on to Allen’s uncle’s house.

At the house the accused reported that he saw both victims came out of the bush together. Again the accused repeated that if it was tension he would have killed them and showed his knife to Allen’s uncle. At that time Allen was crying. The accused spoke and appeared angry.

The accused and the first victim (Ariana) then walked back home. The accused told her that they would take the short cut route. They reached an area where there were no houses. The accused then asked the victim for sex. He told her to take her clothes off and lay on the ground. The victim was frightened and did what she was told. The accused spread her legs apart, laid on top of her and inserted his penis into her vagina. After having sex the accused told the victim not to tell any one or he would kill her. After dressed up both went home. On 11 October 2006 a complaint was lodged with Police.

Following a plea of guilty the accused admitted the facts as true and correct. What remains now is to consider an appropriate sentence to impose in the circumstance of the case. Noted that each case must depend on its own facts.

The maximum penalty prescribed by law for defilement of a girl under 13 years, namely 12 years is life imprisonment. And the maximum penalty for assault is one year imprisonment.

Aggravating features

1. Mr. Coates submits by referring to the case of Mulele v Director of Public Prosecution and Poni v Director of Public Prosecution[1] which formulated a sentencing policy for future guidelines. It stated that each case must depend on its owner facts but factors that should be considered were:-
   
   • (a) Disparity of age
     
   • (b) Abuse of a position of trust
     
   • (c) Subsequent pregnancy
     
   • (d) Character of the girl herself
     
2. Breach of Trust
   

The accused was a step father of the victim. He was entrusted with the care and well being of the victim. He abused this trust to the detriment of the victim for his own sexual gratification.

3. Age of the victim
   

The victim was 12 years and the accused was approximately 49 years at the time of the offence. When combined with the fact that the accused was the victim’s step father there is a significant power of imbalance. The accused used this power of imbalance when asking the victim for sex.

4. Threats

After the accused had sex with the victim he threatened to kill her if she told anyone. While the accused did this to keep his offending secret, it further adds to the fear of the victim.

Mitigating factors

1. The accused is a Bouganvillian. He came to Solomon Islands as a refuge on humanitarian grounds 17 years ago. Initially he was housed in Red Cross Care Centre before establishing himself in Honiara.
   
2. The accused is married to Jemima Tangimoana, the mother of the victim. They have two children, four and eight years old respectively. He also has two children from his previous marriage who were ten and fifteen years old. The two elder children are at school. The youngest child is at Kindergarten. The accused pays for all school fees.
   
3. In addition the accused’s mother-in-law who had a stroke and father-in-law lives with him along with his three other in-laws.
   
4. The accused works by driving a bus and is the sole breadwinner for his family and number of extended wantoks that reside with him.
   
5. After incident the accused and his wife continued to live together.
   
6. Delay
   

The accused was arrested on 13th October 2006. He spent two months in custody until 10th December 2006 before he was granted bail. He waited over two years for the matter to come to trial. He continued remain in Solomon Islands to face the charges and sentence. He did not return to his country to avoid his responsibilities and obligations to the Court.

7. The accused has no previous convictions. He did not offend since the incident. It is an isolated incident and has accepted it as a mistake and he regrets for that.
   
8. He pleads guilty and has diligently come to court and met his obligations and take responsibility for his actions.
   

Defilement of a girl of 12 years of age is a serious offence. This is reflected by S. 142(1) by providing a maximum penalty of life imprisonment. Such a high maximum penalty serves the purpose of protecting girls under 13 years from adults, until such time they can make their own decisions regarding the use of their bodies – Regina v Poloso[2]. See also R v Wilson Iroi[3].

Age difference in this case is quite big, as such attracts high penalty to reflect the seriousness of the offence. The accused was approximately 49 and the victim was 12.

The facts reveal a much regrettable ordeal. By suggesting following a short cut road was the beginning of a hidden evil ego. Whether it was truly a short cut road or not, was purely an excuse to carry out his desire. Knowing that there were no buildings around and no one was expected to access to the road at the time of the night. The accused then asked the victim for sex and he did have it. The circumstances seemed not to favour the victim to void such desire or to call for assistance. There is no suggestion she was a willing party, but with fear she submitted herself for the benefit of the accused and detrimental to herself. The accused did use the power of imbalance to induce the victim for sex.

The action by the accused was extraneous, one not expected from a step father who was entrusted to provide security, care and wellbeing. He has breached that trust and betraying his own step daughter for his own sexual gratification. See R v Poloso[4] and also Fiuadi v R[5].

Because of threat of being killed the victim did not report the matter to Police immediately, but she did almost a month later. What the accused did, not only brought disrepute to his family but disgrace and shame to himself and family. Often it brings mistrust and instability within the family. However I noted that after the incident his wife continued to reside with him. It reflects as one off incident which the accused has worked it out with his family and renewed their relationship. Since then he did not offend.

The accused is from Bougainville, and as a foreigner he is expected to adhere to the laws of the host country and respect his family and his in-laws. What he did had risked his own life. The biological father of the victim and his relatives would have reacted ferociously to such behaviour. There is nothing to suggest anything of that sort occurred.

In the midst of those the accused would have left for fear of his own life, and avoid his obligation and responsibility to the court. He chose not to, and has been diligently coming to court and met his obligations. He was courageous and remains to face the full force of law. At first instance he enters a plea of guilty and demonstrates remorse. I must offer him full credit he deserves. It saved the victim the trauma of giving evidence and placed under very intensive cross examinations – See R v John Mark Tau and 16 Others.[6]

The accused has no previous convictions. His past criminal record is clean. He deserves credit for that as well.

As a head of the family he accepts his responsibility as a sole breadwinner. He earns and supports his family as a bus driver. He pays for his children’s school fees and care for his parents-in-law and other in laws. Social obligations are commitments, which, as a head of the family cannot escape, but to endure to ensure substance of the family and children’s future. These social hardships are bound to be experienced by his own spouse, children and other members of his family. Those are matters which the accused should have taken into consideration, though about, before embarking on his unlawful activity see R v Nelson Funifaka[7].

I noted that there are some delays. The accused was charged on 7th March 2007. A preliminary inquiry was conducted on 30th March 2007. The first Information was filed on21st May 2007. The case was set for mention in the High Court on 16th February, 2009, and a hearing on 23rd February 2009. Since the case was reported and eventually prosecuted in the High Court, it took a period of 28th months. I must say it’s quite a delay. As such it increases the anxiety of the accused who has it hanging over him for that time, Patterson Runikera v DPP[8] and sure enough must have some effect on the sentence to be imposed R v Fred Gwali and Another[9].

Having considered and balancing the aggravating and mitigating factors, what would be the most appropriate sentence to impose? Having unlawful sexual intercourse with a girl under age of 13 is deplorable. Something that the community at large condemn. There is need for deterrent sentence both general and specific. The circumstances in this case require custodial sentence to demonstrate the seriousness of the offence and to reaffirm to the community that criminal law frowns upon the abuse of young girl in Solomon Islands. Let it be a message to the offender and the community that such offending will not be tolerated.

The question whether I should impose a suspended sentence or part thereof. It has to be noted that the purpose of imprisonment is to deter defendant from re-offending and rehabilitation. A suspended sentence or part thereof almost serve the same purpose, but mostly geared towards rehabilitation without confinement. S. 44 (2) of the Penal Code states that suspended sentence shall not apply where the offence involved the use or the illegal possession of a weapon. In this case, the facts reveal that the accused was in possession of a knife on the night in question. Therefore suspended sentence or part thereof is not appropriate.

Sentencing tariff

Both Counsels refer to a number of cases as a guideline.

1. Mulele v DPP and Poini v DPP[10]

(a) Mulele

The appellant who was 40 years was charged for defilement of 13 years old girl. The victim was his step daughter who had lived with him since she was 5 years. As a result of the act the step daughter became pregnant. He was sentence for 4 years imprisonment.

(b) Poini

The appellant was aged 26 years. He was convicted of two counts of defilement. The girl was 12½ years old. He was sentenced to 2½ years imprisonment.

2. R v Poloso[11]

Accused was aged between 19 and 20 years. The victim was aged 9 years. In that case the accused pulled the victim in the bush and had sex with her. The victim was not a willing party and consent is irrelevant. The victim also suffered significant physical injuries from the offence. He was sentenced to 3½ years imprisonment.

3. Berekame v DPP[12]

The accused was sentenced by the High Court for 18 months imprisonment, but was reduced by the Court of Appeal to 9 months. The appellant was 21 years of age and the complainant was just 11 years old. The Court of Appeal felt that the High Court had not taken sufficient account of the circumstances of the case included, among other things, delay, guilty plea, previous good character, his good work record.

I agree with Ms Manning that Poloso’s case is more aggravated. The evidence was that of rape. The age of the complainant was 9 and is a serious aggravating feature and makes it distinguishable from this case. The rest of the facts both aggravating and mitigating can be identified in Mulele, Poini and Berekame cases. However no two cases have similar set of facts and this case must be decided on its own facts.

In Mulele’s case there are striking equal features except in this case the complainant was not pregnant. And in Poini the defilement charges were two. In Berekame the age difference was quite low; there are other facts which also relevant. However, Berekame’s case may not provide an appropriate guideline because the Counsel for the accused has suggested an appropriate sentence of one or two years. A sentence which is over and above the sentence in Berekame case.

Having considered all the aggravating and mitigating features and the guideline set by the courts in those cases, I consider the most appropriate sentence is 2 years for defilement, one month for assault. Both sentences to run concurrent. 2 months the accused spent in custody be discounted.

JUSTICE REX FAUKONA
PUISNE JUDGE

Dated this 5th day of March 2009
At the High Court
Honiara

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^[1] [1985-1986] SILR 145
^[2] [2006] SBHC 33; HC-CRC 346 of 2005 (3 August 2006)
^[3] (unrep. CRC No. 18 of 1994.
^[4] Ibid N2
^[5] (1988-89) SILR 150
^[6] (Unrep CRC No. 58 of 1993)
^[7] (Unrep. Criminal Case No. 33 of 1996)
^[8] (Unrep. Criminal Appeal No. 14 of 1987)
^[9] (Unrep. Criminal Case NO. 21 of 1997)
^[10] (1985-1986) SILR 145.
^[11] (2006) SBHC 33.
^[12] Criminal Appeal NO 2 of 1986