Regina v Gole [2013] SBHC 183; HCSI-CRC 339 of 2011 (28 November 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 339 of 2011

R

v

JAMES GOLE

Coram: PALLARAS J
Crown: Ms L. Fineanganofo
Defence: Mr S. Valenitabua
Hearing Dates: November 4 & 5, 2013
Sentence Delivered: 28 November 2013

SENTENCE

1. On 4th November 2013 the prisoner pleaded guilty to one count of incest contrary to section 163 of the Penal Code [Cap. 26] ("the Code").
   
2. In a document headed Summary of Facts, signed by counsel for the prosecution and the defence, the following events are set out.
   
3. On an unknown date in January 2011, the prisoner entered the room where his 15 year-old daughter ("the Complainant") was sleeping. The Complainant awoke to find the prisoner on top of her. She then felt pain as he began to have sexual intercourse with her. She was unable to say or do anything as she was in a state of shock at what her father was doing to her. Her father then left the room.
   
4. The Complainant was unable to tell anyone about what had occurred as she feared her father and was ashamed to tell her mother.
   
5. In June of 2011 the Complainant was asked by her aunty if she was pregnant. She replied that she was. When asked by whom, she replied that her father had made her pregnant.
   
6. The matter was reported to the police on 14th June, 2011, and the prisoner was arrested on 17th June and admitted the offence to police.
   
7. I have received and carefully considered written sentencing submissions from both counsel.
8. It is said in mitigation that the accused has pleaded guilty to the offence, that there has been a delay of 30 months between his arrest and the matter being dealt with in this Court, that he is a man of previous good character and that he regrets his actions.
   
9. In entering a plea of guilty to incest, the accused has shown that he accepts responsibility for what he has done. His plea frees the Complainant from the stress of giving evidence and he is to be given credit for this.
   
10. The accused was originally charged with one count of rape, to which charge he pleaded not guilty in the Court below. In August 2011, the Director of Public Prosecutions filed an Information containing one count of rape and one count of incest.
    
11. In December 2011, an amended Information was filed by the Director of Public Prosecutions which contained one count of incest only. While the decision as to the appropriate charge is within the sole discretion of the Director of Public Prosecutions, it is very difficult to understand the decision not to proceed with the count of rape given the facts, which are agreed between the parties. No explanation has been offered to the Court in relation to this change of mind by the prosecution.
    
12. In any event, it has not been suggested that the prisoner had offered to plead guilty to incest when confronted with the amended Information and in fact the trial of the matter was due to begin on the very day that he pleaded guilty in this Court to the count of incest.
    
13. While it is regrettable that any delay occurs in resolving such a serious matter as this, some delay is inevitable in a criminal justice system that is chronically under-resourced, and I do not consider that in this case the delay can be said to be unreasonable.
    
14. So while it is true that the prisoner has pleaded guilty, it was a plea entered at the very last minute. However, he is still to be given some credit for the fact that the Complainant has been spared the anguish of having to publicly relate those events in Court.
    
15. It is said that the prisoner is a man with no previous convictions, was educated to grade six level but then completed six years Bible study, is married with seven children and worked as a farmer. He was living with his family when he committed this offence and has paid compensation to his wife's uncles. When the incident was discovered, his wife and children left his house and went to live with relatives. After the payment of compensation they returned to the family home.
    
16. The prisoner has also been active in the Anglican Church and local school committees.
    
17. These matters put in mitigation and also those personal to the prisoner are to his credit. However, it is well established that matters personal to an accused are of less influence on the sentence imposed in crimes of this nature than they might otherwise be.[1]
    
18. The crime of incest is rightly regarded as a crime of considerable seriousness. The Penal Code [Cap. 26] however sends an ambiguous message by providing for those who commit incest, a maximum penalty of life imprisonment if the child is twelve years of age or under, but if the child is thirteen years of age or over, the maximum penalty is seven years imprisonment.
    
19. Such a discrepancy is difficult to understand when the undoubted aim of the law is to protect young children from abuses by their grandfather, father, brother or son. While it is only sensible to assume that the younger the child the more the law must protect her interests, the suggestion that any young girl becomes less vulnerable or less in need of the protection of the criminal law on the day that she turns thirteen is a difficult one to understand or accept.
    
20. The impact upon the daughter of a man who commits incest against her may be equally or even more traumatic than the impact upon the daughter of a man who commits rape against her. Yet the significantly different penalties in the two cases may, on one view, fail to recognise this reality.
    
21. The crime of incest, apart from its physical aspects, carries with it an enormous breach of trust. A young girl's faith and trust in her father is completely shattered and her world is effectively turned upside down. It can be no exaggeration to say that her life will never again be the same and, as in this case, particularly so when a child results from the offence. Emotionally the impact is considerable. The victim has described how, since the incident, she has changed from the happy person she once was.
    
22. In this case, the victim became pregnant. She carried the child to full term and gave birth to a son. She became a mother at 16 years of age and was effectively robbed of her remaining childhood and the chance of any further education.
    
23. The emotional impact that this crime and its consequences had on the victim are clearly evident from her Victim Impact Statement. She describes the shame and the sadness that she feels over what has happened and her distress at not being able to complete her schooling. She no longer speaks with her father and has removed herself from her father's family out of fear of how they will treat her and her son. She is supported by her mother and her mother's relatives. In my judgement, this is a significant feature of aggravation of the offence having a life- long impact on the future of the victim and a potential impact on the life of her child.
    
24. At the time of the offence, the victim was 15 years and 11 months of age. The prisoner was, on the prosecution's case, in his forties - while on the defence case, in his late thirties. On either version there was a very significant age difference between the prisoner and his daughter. This is a further feature of aggravation.
    
25. I have carefully considered all of the material, including the authorities referred to, presented by the parties. I am of course most conscious that the prisoner is convicted of incest, not rape, and is to be dealt with according to the law, as it is, relating to that offence.
    
26. The offence of incest, regrettably, comes before this Court frequently. There is without question a responsibility upon every member of the community to remove or protect against the circumstances that permit this offence to continue. Men who have been given the blessing of fatherhood can no longer abuse and destroy that privilege and the notion that they are free to have sex with their own children must be expunged from the male psyche. Their children are not to be regarded as the possessions of the father for him to do with as he pleases, for if he does not stand up for the dignity and human rights of his child, then who is there to do so?
    
27. Taking into account the matters of aggravation and mitigation referred to, it is my judgment that an appropriate sentence is one of 5 ½ years imprisonment. I have allowed a deduction of 6 months for the late plea of guilty in coming to this sentence.
    

ORDERS

1. The prisoner is convicted of one count of incest contrary to section 163 of the Penal Code [Cap. 26].
   
2. The prisoner is sentenced to imprisonment for 5 years and 6 months.
   
3. Time spent in custody as a result of this offence is to be taken into account.
   

........................................................
THE COURT

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^[1] R v Ligiau and Dori [1985-1986] SILR 214