Regina v Lotau [2009] SBHC 58; HCSI-CRC 331 of 2008 (6 November 2009)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 331 of 2008

REGINA

V

SELWYN LOTAU

DATE OF HEARING: 4th November 2009
DATE OF SENTENCE: 6th November 2009

M. Coates and N. Kesaka for the Crown
A. Mane for the Defendant

Palmer CJ:-

The defendant, Selwyn Lotau ("the Defendant") has been charged with one count of defilement of a young girl under the age of 13 years contrary to section 142(1) of the Penal Code. This offence is a very serious offence and carries a maximum sentence of life imprisonment.

The facts briefly show that the Defendant committed the offence at their family home at Mbokona on 16 June 2008. He had been drinking kwaso that afternoon. The victim was at Kaibia visiting her cousin when she was sent for by the Defendant. He sent the victim’s younger brother to get her. Those present at the house at that time were the younger brother of the victim and three other children. These were the children of the Defendant’s sister. At some point in time that afternoon, the Defendant told the children to go to sleep. The victim went into her room. The other children however were told to go into the other room.

The Defendant then entered the victim’s room; she was lying on her mattress at that time. He offered her $150.00, she took off her clothes and he had sex with her. He then threatened her not to tell her mother about what had happened. She however told her mother about the incident on the following morning.

The Defendant was arrested on the next day 18 June 2008 and has been in custody since.

Mitigation

He pleaded guilty and wrote a letter apologising to the mother of the victim. While he had a long string of previous convictions and had been to prison on many occasions for offences these were for offences other than of a sexual nature. The last offence recorded was in 2003 and there had been a gap of about five years before this offence was committed. He cooperated with Police and has been in custody since June 19 2008.

Comparative Cases

I have been referred to a number of cases¹ of defilement. I do not propose to go through each case but point out common threads which the courts have taken into account to differentiate over sentences imposed.

The disparity² of age is a factor which the courts will take into account. If the age gap between the victim and the defendant is relatively small then that can have an effect on the length of sentence imposed.

The second factor which can also affect sentence is the issue of delay³. In a number of cases the court has reduced sentence due to this factor.

Another factor is the position of trust⁴ that the defendant is in. In such cases a defendant must expect a stiffer penalty to be imposed unless there are other extenuating circumstances to mitigate on sentence.

Decision

The offence of defilement, which is having sex with a young girl, carries a wide spectrum of guilt under the law. In R. v. Taylor and Others⁵, Lawton L.J. pointed out that at one end of the spectrum is the youth who is maybe 16, 17, or 18, who starts off in a virtuous friendship with the girl and ends up having sexual intercourse with her. At the other end of the spectrum, is the man in a supervisory capacity, such as a school master or social worker (and includes a guardian or a step-father), who sets out deliberately to seduce a girl that is in his care. Lawton L.J. points out that the penalties for those two types of case are very different. In the case of a man in a supervisory capacity, who abuses his position of trust for his sexual gratification, he expressed the view that the sentence must be near the maximum allowed by law. I find no reason to diverge from this sound reasoning.

This view was re-echoed in Sottie Apusa v. The State⁶ by Brunton AJ when he sought to lay down some guidelines for the courts in Papua New Guinea regarding similar type of sexual offences. The courts in this country have often referred to this judgement because again it is based on sound reasoning.

Brunton AJ described three situations. At the lower range included cases where the accused and the victim were of similar age; similar to the types of cases at one end of the spectrum described by Lawton L.J. At the opposite end, he described as the upper range, which included cases where aggravating features exist, including a relationship of trust. This is also similar to the opposite end of the spectrum described by Lawton L.J. In such cases a sentence near the maximum penalty would be warranted. Brunton AJ however inserted a third category of cases, in the middle range, which included cases where the offence is committed by a mature man but without any circumstances of aggravation.

From whatever perspective this case is viewed, it falls squarely within the other end of the spectrum described by Lawton L.J. of a man in a supervisory capacity, and within the upper range category of cases described by Brunton AJ.

Our law makes a distinction between two types of offences in this category; defilement of a girl between the ages of 13 to 15 which attracts a maximum penalty of five years and defilement of a girl below the age of 12 years which attracts a maximum penalty of life imprisonment. The law in this case makes clear that this offence is categorised as a much more serious offence the courts must take their cue from the law when assessing sentence.

The presence of aggravating circumstances, place this case well in the spectrum of offences in the upper range category. These include the following:

(i) Age disparity. The Defendant is a mature man; he was 41 years of age at the time of commission of offence. The victim was only twelve. By virtue of his mature age he is deemed to be responsible and accountable to the victim for his actions.

(ii) The position of trust occupied by the defendant. The victim was his step daughter and so he was in loco parentis to her. This is a unique relationship; it imposes the duty of care and control on him in the absence of the natural father, and is based on trust and confidence. The breach would not only harm her psychologically but was a form of betrayal by someone that she looks up to for protection, safety and security.

(iii) The offence was committed when the defendant was under the influence of alcohol, in this case through the consumption of a local brew called "kwaso". This alone would have been terrifying for such a young person. Many young persons are naturally afraid of drunken people and in this instance would have every reason to fear that if she did not comply with his instructions she could be harmed, a fortiori if she had seen him in such states before and if he had been violent or used violence in the home previously whether against the mother or the children. A drunken person can be very difficult to reason with and easily angered and abusive. Being under the influence of alcohol is an aggravating factor.

(iv) The use of money to corrupt her mind and obtain consent is an aggravating factor in this case. Prostitutes play their trade by offering their bodies in exchange for payment of money. Through the payment of money ($150.00) in this instance, the victim was indirectly being prostituted and used as a sex object for his self gratification. For a young person the payment of this sum of money could have been quite large, which she could use for herself.

(v) There was an element of threat which was applied to her after the incident to stop her from reporting the matter to her mother or anyone else.

(vi) While the Defendant has no previous convictions of a sexual nature he is not a first time offender. To the contrary, he is a person who is very familiar with the court system and the law. He has been through the court and the prison systems on many occasions. His first brush with the law was in 1980; he would have only been a very young person then. His first taste of jail was in 1987, when he was only about 20 years. Since then he has been in and out of prison on many occasions. He is not new to spending time in prison and it is of great concern that he continues to re-offend and though this is different it is a much more serious offence. I do note though that it seems he did make some attempt to reform because the last time he clashed with the law was five years ago in 2003.

(vii) In his statement to the Police he admitted to having had sex with the victim on numerous other occasions. This was not an isolated or one situation therefore, although he has only been charged for one offence.

In contrast I give him credit for his guilty plea, saving court time and expense and the victim from having to relive the experience by recounting them in court. He has cooperated well with the police and has apologised to the mother of the victim for the offence.

This law exists to protect young girls from such irresponsible behaviour and conduct by adults and that those who commit such offences must expect an immediate custodial sentence, the length of which will depend on the circumstances of each case. Balancing all these factors together, I am satisfied a sentence of five years is appropriate in this case.

He is convicted of the offence of defilement contrary to section 142(1) of the Penal Code and sentenced to imprisonment for five years; the period spent in custody to be taken into account.

Orders of the Court:

1. Convict Selwyn Lotau of the offence of defilement contrary to section 142(1) of the Penal Code.

2. Impose sentence of 5 years imprisonment.

3. Period spent in custody to be taken into account.

The Court.

End Note

1. Regina v. Desmond [2009] SBHC 3, HCSI-CRC 121; Regina v. Poloso [2006] SBHC 33, HCSI-CRC 346; R. v. Rubekolo [2006] SBHC 122, HCSI-CRC 463; Oscar v. R [2006] SBHC 148, HCSI-CRAC 494; Zale v. R. [2005] SBHC 54, HCSI-CRC 495; Konai v. R. [2005] SBHC 186; HCSI-CRC 123; Regina v. Tome [1991] SBHC 28, HCSI-CRC 24; R. v. Iroi [1991] SBHC 56, HCSI-CRC 17; R. v. Toada [1990] SBHC 23, HCSI-CRC 20; Mulele v. DPP [1986] SBHC 4; Berekame v. DPP [1986] SBHC 10.

2. R. v. Poloso (ibid); R. v. Rubekolo (ibid); Oscar v. R. (ibid); R. v. Iroi (ibid); R. v. Toada (ibid); and Berekame v. DPP (ibid).

3. R. v. Desmond (ibid) (delay of 2 years); Zale v. R. (ibid) (delay of 19 months); and R. v. Rubekolo (ibid) (delay of 4 years).

4. Mulele v. DPP (ibid)

5. (1977) 64 Cr. App. R. 183: Lawton L.J., Mackenna and Gibson JJ.

6. [1988-1889] PNGLR 170, 22 May 1989