Regina v Taru [2012] SBHC 36; HCSI-CRC 142 of 2011 (1 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

REGINA

-v-

URIEL TARU

Date of hearing: 27th April 2012.
Date of Judgment: 1st May 2012.

Ms Fineanganofo and Mr. Naigulevu for the Crown.
Mr. Cade for the accused.

SENTENCE

1. You have been convicted of 2 counts of defilement of the complainant, Ms Margaret Isabela, who, at the time of the offence, was 14 years old. Under section 143(1)(a) of the Penal Code, the maximum sentence for the offence is 5 years imprisonment.
   
2. This case has a number of aggravating features. From the evidence, it is clear that the relationship between you and the complainant was initiated by you. You knew at that time that the complainant was a young girl while you were a married man. Yet you chose to lure the complainant into a relationship with the aim of having sex with her.
   
3. The manner in which you gave your evidence showed that you did not regret what you did but you have taken pride in it. Children must be protected from sex predators. There was a very huge age gap between you and the victim at the time of the offence. You were 54 while the victim was 14. The age gap was 40 years. It was a case of child abuse.
   
4. I note that you have committed the offence twice. Solomon Island custom obliges persons who commit sexual intercourse with girls or women to pay compensation to the girl's or the woman's family. There is no evidence that you have done that.
   
5. I also note that you have a string of convictions from 1979 to 1988, two of them for rape, one for using abusive language, one for house breaking, one for larceny and one for arson. You certainly do not have a clean record and therefore I cannot give you credit to such extent as I would have given to a person of previous good character. However, the age of your convictions is a mitigating factor which I have taken into account in regards to the length of your sentence.
   
6. It has been argued that you are a person in the position of trust towards the victim. However, there is no evidence that you are related to the victim. I therefore reject that argument.
   
7. As for your mitigation, I have taken into account your guilty plea. Furthermore, there is no evidence that the victim suffered any injuries to her body.
   
8. I have also considered sentences imposed for defilement offences by this court. In R v Rasini[1], the accuseds were sentenced to imprisonment terms ranging from 4 months to 9 months. The victim was 12 years old at the time of the offences.
   
9. In R v Kaboma[2], terms of imprisonment have been imposed on 4 accuseds in relation to defilement charges. The 4 accuseds were Allen Kaboma, Leslie Maesimae, Basil Malinga and Alfred Hepepaina. Allen Kaboma was charged with 3 counts of defilement of three girls, one under 13, another under 15 and the third also under 15. Leslie Maesimae was charged with defilement of a girl under 15 years. Basil Malinga was charged with the defilement of a girl under 13 years and Alfred Hepepaina was charged with 2 cases of defilement, one of a girl under 13 years and the other of a girl under 15 years. All have pleaded guilty to the charges against them. Their sentences ranged from 6 months to 2 years. The victims were under the ages of 13 and 15.
   
10. In Zale v Regina[3], the accused was convicted of 3 counts of defilement of a girl who had just turned 13 at the time. He was sentenced to 9 months on each count by the Magistrates Court but, on appeal to the High Court, each sentence was reduced to 3 months.
    
11. In R v Rubekolo[4], the accused had pleaded guilty to defilement of a girl of 12 years old. He was given a suspended sentence of 4 months.
    
12. In R v Usa[5], the accused was given a suspended sentence of 12 months imprisonment.
    
13. In considering the appropriate sentence to impose in this case, I have had regard to these range of sentences as well as the aggravating features of this case. I have also considered your past criminal record and have taken into account the fact that there was a period of 23 years during which you have behaved well. It is a well established principle that a court should not be guided merely by previous convictions and if the offence for which punishment is to be awarded does not indicate a deliberate return to crime and there are circumstances which do not show that the offence was planned before hand, less weight should be given to previous convictions. More weight should be given to previous convictions for offences of the same character as that for which the offender is to be punished than to convictions for offences of a different character[6].
    
14. However, your past record also showed that you have been convicted twice for rape which is a sexual offence. Defilement is also a sexual offence. In my view, this case indicates a deliberate return to criminal sexual behavior for which you have had previous clashes with the law. These two offences were not committed on the spur of the moment. They were planned. It follows therefore that full credit cannot be given for your 23 years of good behavior.
    
15. In all the circumstances of this case, it is my view that the appropriate sentence in this case is 2 years imprisonment for each count. I therefore sentence you to 2 years imprisonment for each count.
    
16. I have considered whether the sentences should be concurrent or a consecutive. The general principle is that offences committed concurrently ought to receive concurrent sentences. Offences are concurrent when they form part of a single transaction. It has been said that offences may be treated as part of a single transaction when they are proximate in time or where they are proximate in the type of offences and where they involve the same victim[7]. However, each case must depend on its own circumstances.
    
17. As to whether the offences are proximate in time, I note that the offences were committed in June and September 2010. There was a period of about 2 months in between the commission of the offences. I do not think it can be said that the offences were proximate in time. However, I also note that the offences were similar and involved the same victim. For this reason, I am satisfied that the sentences should be made concurrent.
    
18. I therefore order that the sentences be served concurrently commencing on the date you have been taken into custody.
    

THE COURT

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^[1] [1991] SBHC 127; HC-CRC 025 of 1990.
^[2] [1992] SBHC 69; HCSI-CRC 12 of 1992.
^[3] [2005] SBHC 54; HCSI-CRC 495 of 2004.
^[4] [2006] SBHC 122; HCSI-CRC 463 of 2004.
^[5] [2009] SBHC 8; HCSI-CRC 183 of 2007
^[6] Grayson v The King (1920) 22WALR 37.
^[7] Sentencing and Criminal Justice, Andrew Ashworth, 4^th Ed, pp. 243 – 245.