Regina v Wanago [2012] SBHC 128; HCSI-CRC 348 of 2012 (19 October 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI J)

Criminal Jurisdiction

REGINA

-v-

STEVEN WANAGO

Date of Hearing: 15th October 2012
Date of Judgment: 19th October 2012

Mrs. M. Suifa'asia for the Crown.
Mr. C. Rarumae for the accused.

SENTENCE

Apaniai, PJ:

1. Mr. Steven Wanago, you were charged with 2 counts of incest under section 163(1) of the Penal Code and you have pleaded guilty to both counts and were accordingly convicted. You are here today to receive your sentence for those 2 offences.
   
2. The facts of these offences are that you have committed these offences on your daughter twice. The first was in broad daylight in March last year when you and your daughter went to harvest potato in your family garden and the second was at night in July this year when your wife was not around. You have taken advantage of the absence of your wife to commit this heinous act on your own daughter.
   
3. As you very well knew at the time you committed these offences, the victim was your very own daughter and she was 14 and 15 years old respectively. You were then 38 and 39 years old and the age gap between you and her was 24 years.
   
4. The law says that a person guilty of incest of a girl of 13 years and above is liable to a maximum of 7 years imprisonment[1]. That means I can sentence you to imprisonment to terms not exceeding 7 years each for these 2 offences.
   
5. In order for me to arrive at an appropriate sentence in your case, I must consider not only the aggravating features of your case but also the mitigating factors presented on your behalf by your lawyer and the sentences imposed in the past for similar offences.
   
6. In this case, the aggravating features are that you are the father of the victim. You are the one who brought her into this world and you have the responsibility to care for her and provide her with the security and the fatherly affection that she needs. You have shown her a different type of affection, one that she did not like and one which the law does not allow.
   
7. She had looked to you as her father, protector and provider and had expected you to be that kind of person to her. You have dashed her expectations and now she has no one else to look to. You have destroyed the trust that she had in you and I am sure the relationship between you and her will never be the same again despite whatever reconciliation processes you both may have gone through.
   
8. To every child, a father holds a very unique and distinctive position in his or her life, a position that will never be replaced by any other man. Others may look after the child and care for the child such as his or her uncles or other relatives but the bond and the relationship between the child and those other persons can never replace the kind of bond and affectionate feelings that exist between the child and his or her real father.
   
9. In this case, your daughter will grow up with the knowledge and shame that you, her father, had defiled her. Others will also know that you have defiled her and that will be a long lasting embarrassment to her. In other words, what you have done to her will affect her for life and this is a very serious matter in the eyes of the law. A custodial sentence is therefore inevitable in this case.
   
10. Under the law[2], the maximum punishment for incest is 7 years imprisonment but if the victim is below 13 years of age then the maximum penalty is life imprisonment.
    
11. This penalty is a reflection of how serious Parliament regards this type of offence. In considering the sentence to be imposed for the offence, the court must give effect to Parliament's intentions.
    
12. However, in determining what sentence to impose, I must not only take into account the aggravating features of the case but also the mitigating factors in your favour.
    
13. In this case, the first mitigating factor is that you have pleaded guilty to the offences. By doing so, you have spared the costs of a full trial. In addition, you have also spared your daughter from having to testify in court about what had taken place between you and her. I give you credit for the guilty plea.
    
14. Secondly, you have no previous convictions. I accept that a first offender, you are entitled to some leniency.
    
15. Thirdly, I accept that you have co-operated with the police during their investigations.
    
16. Fourth, I have also taken into account the fact that you have a large family and that the children needed your support in terms of school fees and other expenses.
    
17. Fifth, there is no evidence before me of any physical injuries being caused to your daughter as a result of these sexual incidents. I will therefore give you the benefit of the doubt and hold that she suffered no physical injuries.
    
18. A number of incest cases have been referred to me by counsel in this case. I am grateful for their assistance. The sentences passed in those cases are also useful as a guide when determining the appropriate sentence in this case.
    
19. In Roko v R[3], the accused pleaded guilty to, and was convicted of, 4 counts of incest on his 16-year-old daughter. The accused was sentenced on appeal to 2 years for count 1 and 3 years each for counts 2 to 4 to be served concurrently.
    
20. In R v Atkin[4], the accused pleaded guilty to a number of counts of incest and was sentenced to 2 years for count 1 and 2 years each on the remaining counts to be served concurrently.
    
21. In Kyio v R[5], the accused was convicted of incest on a plea of guilty and sentenced to 2 years with 1 year suspended.
    
22. In Toke v R[6], the accused was convicted after trial and sentenced to 5 years for having sex with his 15-year-old daughter.
    
23. In R v Hagataku[7], the accused was convicted on his own plea of guilty of incest and sentenced to 3 years.
    
24. In Nanai v R[8], the accused was convicted on his own plea of guilty of incest and sentenced to 2 years.
    
25. In Fuilorentino v R[9], the accused was convicted of 14 counts of incest on a plea of guilty and, on appeal, was sentenced to 3 ½ years concurrent.
    
26. More recently in Regina v Melake[10], the accused was convicted of three counts of incest after a plea of guilty and sentenced to 2 years for each count to be served concurrently.
    
27. Another recent case was Regina v Qinity[11] where the accused was convicted of one count of incest after a plea of guilty and sentenced to 2 years imprisonment.
    
28. The range of the sentences imposed in these cases range from 2 years to 5 years. These sentences were imposed in the light of the circumstances of each case and the age of the victims. In the present case, the victim was 14 years old when the first offence was committed upon her and was 15 years old at the time of the second offence.
    
29. However, whatever sentence is imposed in this case, the element of deterrence must also be considered seriously in the light of the prevalence of this type of offence in this country.
    
30. It seems to me that it is now time that the court takes a hard look at these past sentences and see whether they are having any deterrent effect at all. It seems to me that they are not and it is time that sentences for this type of offence are raised to a higher level.
    
31. Therefore, having regard to the aggravating features of this case, the mitigating factors presented on your behalf, the range of sentences imposed for similar offences in the past in this jurisdiction and the need to place more emphasis on deterrence in the light of the prevalence of the offence in this country, it is my view that a sentence of 4 years for each count is appropriate in this case.
    
32. I therefore sentence you to 4 years imprisonment for each of the 2 counts against you.
    
33. I have also considered whether these 4 years should be concurrent or consecutive. Having regard to the crushing effect that such a long sentence will have on you, I order that the sentences be served concurrently. This means that you will spend 4 years in prison.
    
34. This sentence will take effect from the time you were taken into custody.
    

THE COURT

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^[1] See section 163(1) of the Penal Code.
^[2] Section 163 of the Penal Code.
^[3] [1990] SBHC 99
^[4] CRC 18 of 1994
^[5] CRAC 259 of 2004
^[6] CRAC 50 of 1998
^[7] [1993] SBHC 61
^[8] [2005] SBHC 74
^[9] CRAC 87 of 2008
^[10] [2010] SBHC 34.
^[11] [2010] SBHC 26.