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R v Limana [2013] SBHC 189; HCSI-CRC 318 of 2011 (2 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS


PALLARAS J


Criminal Case Number 318 of 2011


R


v


PATTERSON TANGO LIMANA


Coram: PALLARAS J
Crown: Mr A. Aulunga
Defence: Ms S. Karani
Hearing Dates: November 18-20, 2013
Sentence Delivered: December 2, 2013


SENTENCE


  1. On 18th November 2013 the prisoner pleaded guilty to six counts of defilement contrary to Section 143(1)(a) of the Penal Code [Cap. 26] ("the Code").
  2. Each of the six counts were particularised as having being committed during the months of June and July 2010 at Suvania Village in Gizo, Western Province with the same girl ("the Complainant").
  3. At the time of the offending the Complainant was 14 years and 11 months of age.
  4. The prisoner is married to the elder sister of the Complainant.
  5. Both counsel have made oral and written submissions in relation to penalty to which I pay careful regard.
  6. It is agreed that at the time of the offences, the Complainant was a student attending primary school. It is agreed that initially she did not tell her parents of these events because she was frightened to do so. When on the 19th October 2010 the Complainant did inform her mother, she reported them to the police. On that same day, 19th October 2010, the prisoner was arrested and released on bail the following day.
  7. On the 20th October 2010, the Complainant was medically examined and found to be between 12-13 weeks pregnant. She later gave birth to a son. The prisoner is the father of that child.
  8. The Crown submits that there are several aggravating features to this offending.

They are –


  1. the difference in the ages of the Complainant and the prisoner – approximately 11 years;
  2. the young age of the Complainant;
  3. the abuse of trust as a relative of the Complainant;
  4. the offending continued over weeks;
  5. the child fell pregnant and gave birth to a son;
  6. the offending caused emotional stress between the Complainant and her family.
  1. The Crown also submits that the sentence must appropriately reflect aspects of both general and specific deterrence.
  2. For the prisoner, it is submitted that there are several features of mitigation. They are said to be –
    1. the sexual intercourse was consensual;
    2. the Complainant was almost 15 years of age;
    3. the prisoner has entered an early plea of guilty;
    4. there has been custom compensation paid of SID$300;
    5. the prisoner has good prospects of rehabilitation;
    6. the prisoner has shown contrition – in which regard a letter written by the prisoner was tendered to the Court.
  3. Dealing first, with what are said to be aggravating features, I find that each of the factors suggested to be features of aggravation are in fact features of aggravation. There was indeed a significant difference between their ages and combined with the prisoner's relationship as an older male relative, placed him in a position of considerable influence and relative power, authority and control over the young Complainant. It was a position, which he took full advantage of in his abusive conduct towards the Complainant.
  4. I find the fact that this was not an isolated event but a course of conduct, which continued over a period of weeks to be a significant aggravating feature. The prisoner has admitted have unlawful sexual intercourse with the Complainant on six separate occasions. He had ample opportunity to reflect upon what he was doing and to desist. He chose not to. Instead, he chose to continue his abuse of the Complainant time after time.
  5. The Complainant in falling pregnant to the prisoner and carrying the child full term and then giving birth to a son, has in many respects, been robbed of the remainder of her childhood. She now has been forced to adopt all of the responsibilities of motherhood at a very young age. She will now spend a considerable part of her future carrying all of the burden of the emotional, physical and financial support of her son without any contribution from the child's father. In my view, this is a heavy burden imposed upon the Complainant by the prisoner, which is over and above his sexual abuse of her. It is a significant feature of aggravation.
  6. There is no evidence before me that the relationship between the Complainant and her family has broken down irretrievably. Indeed counsel for the prisoner submits that as a result of the prisoner's compensation payment to the mother of the Complainant, that everyone has reconciled. While there was, no doubt, a considerable measure of stress within the Complainant and her family when these offences were discovered, I cannot find on the facts before me that this factor should be regarded as an aggravating feature of the offending itself.
  7. I now turn to what the defence submit are the mitigating factors in this case.
  8. It is submitted that the sexual intercourse was consensual and that this mitigates the offending. I find this an extraordinary submission for counsel to make. The most cursory reading of Section 143 of the Penal Code [Cap. 26] would inform the reader that it is no defence to any charge of defilement to prove that the girl consented.[1] As has recently been noted in the Solomon Islands Court of Appeal –

"Defilement does not need evidence of lack of consent. It has long been the law that a child under sixteen years cannot consent and so the fact of the sexual intercourse and the child's age is sufficient to found a conviction. As the offence of defilement always and necessarily involves lack of consent, it is difficult to understand why the courts in this jurisdiction continue to pass sentences for defilement below, and often substantially below, the sentence they would pass if the charge had been rape."[2]


  1. It is submitted that because the Complainant was almost 15 years of age that this was a mitigating factor. The law plainly provides that if the child is under 15 years of age when the sexual intercourse is committed then the offence is complete. The child in this case was under 15 years of age. While it is one thing to say that the extremely young age of the Complainant may aggravate the offence, it is quite another to say that if the Complainant is not extremely young then this fact mitigates the offence. I cannot accept the defence submission on this issue.
  2. It is submitted that the prisoner has entered an early plea of guilty. This submission is particularly mystifying. The offences occurred in 2010. Counsel agree that the first and only plea of guilty entered by the prisoner was entered in November 2013, shortly before his trial was due to begin. I cannot understand how any counsel could honestly submit that in those circumstances the prisoner should be given the benefit of an early plea. The plea was not an early plea. It was a very late plea. In fact, it can properly be described as a plea made at the last minute in the doorway of the courtroom. To suggest otherwise is not only misleading, but improper.
  3. Despite this submission by counsel, it is to be recognised that a guilty plea, whenever it is made, has the effect of removing the necessity for the Complainant having to relive and recount these incidents in public. For that, the prisoner should and will be given credit.
  4. It is submitted that the prisoner has demonstrated his remorse by his payment of SID$300 to the mother of the Complainant. I note however that since the birth of his child he has offered no support of any kind to the Complainant to assist in the raising of the child. He is also said to have shown his contrition in the letter handed to the Court by counsel. It is to his credit that the prisoner has gone some way in an attempt to reconcile the various families and people affected by his offending. Hopefully that demonstrates a recognition that he has caused pain and hurt to others by his selfishness. If so, that is to his credit.
  5. However, whatever mitigation that conduct might offer, it has to be balanced by the sentiments expressed in the letter written by the prisoner and tendered on his behalf and also in the submissions put to me by his counsel. In his letter to the Court, the prisoner says-

I am sorry for what I have done to (name omitted) because she is my sister in law. I coveted her but she should have reported that to her sister, my wife, so that I would be frightened not to ask her.


  1. His expressed attitude that somehow the Complainant was to blame because she did not report him to his wife is astonishing. Nothing more clearly demonstrates the perverse and distorted thinking that so pervades men who seem to believe that they are free to use and abuse children for their own sexual gratification whenever they chose to do so. It reflects an absolute failure to recognise his own culpability, his own responsibility and the harm that his selfishness has caused and so long as that attitude prevails in this community, it represents a constant threat to the safety of young girls throughout Solomon Islands.
  2. When the letter was first produced to the Court, I felt that there may have been an issue in the translation that produced such a damning exposition. However, such doubts were removed when defence counsel addressed the Court in a way that confirmed precisely what was in the translation of the letter and, alarmingly, went even further. For counsel then submitted that had the prisoner not been "seduced" by the young girl then this would never have happened. I state here very clearly, that there was absolutely no evidence produced, either in the Agreed Facts or otherwise, to suggest that the Complainant had "seduced" the prisoner. Such an extraordinary comment by counsel served to raise further doubts as to the prisoner's claimed "repentance" and "remorse" and did very little to advance the prisoner's cause.
  3. It was said that the prisoner is a married man with three children and that he has good prospects of rehabilitation. It is said that he was, prior to these offences, a man with no previous convictions. I am told that he has not re-offended since these offences were committed. He has assisted in community and church work within his community and assists his mother to tend their garden. I accept these submissions and agree that these matters personal to the prisoner are to his credit and suggest that rehabilitation is possible.
  4. However, it is well settled in this jurisdiction that in sexual offences, matters of mitigation personal to the offender have less effect on the sentence than in most other serious crime.[3]
  5. When addressing sentencing principles, Defence counsel submitted that specific deterrence should play no part in the assessment of a proper sentence. The reason for this was said to be because the prisoner had not committed any offences prior to these crimes and had good prospects of rehabilitation. With respect to counsel, I cannot agree. This is not a case where one offence was committed. It is not even a case where two offences were committed. The prisoner committed the offence of defilement on six separate occasions over a period of weeks. In doing so, he has clearly demonstrated a willingness to commit consecutive serious crimes. Each time he did so he was aware that it was an offence yet he continued to repeat his conduct. Specific deterrence is most relevant in cases where an offender repeats his criminal conduct because he has demonstrated that hitherto he has not been deferred from committing such acts. This is a case where the principle of specific deterrence is relevant.
  6. Defence counsel also submitted that any sentences should be ordered to be served concurrently. The reason for this was said to be because the offences were committed against the same Complainant. Again, with respect to counsel, this totally misses the point. These crimes were individual, separate crimes committed over a period of weeks. They did not all occur at the same time or as part of the one criminal transaction. The prisoner spread these offences over a period of two months and had several opportunities to reflect and desist. He chose not to. In my judgment, these offences are properly punishable by consecutive sentences, subject of course to principles of totality.
  7. It is said that a society is judged by the way in which it treats its weakest members. Amongst the weakest members of any society are its young children. The Legislature has sought to create a child protection regime in which offences against children are regarded as serious offences and are punished appropriately. There is still a considerable amount of work to be done in respect of this legislation and one hopes that it will not be too long in coming.
  8. The Court of Appeal has recently and, with respect, properly stated that earlier sentences passed in this Court for the offence of defilement have been lenient and inappropriate.[4]It is a matter of concern that this has occurred and that the interests and protection of children in this country hitherto may not have been fully recognised by this Court. The attitude expressed by the Court of Appeal is a welcome clarion call that must be heeded by all.
  9. Having carefully considered all of the material presented to me by counsel in this case and, in particular, after having assessed the features of mitigation and aggravation of the offences identified in the case, I judge that an appropriate sentence for each of Counts 1, 2 and 3 is a term of imprisonment for 3½ years. I regard the commission of Counts 4, 5 and 6 as aggravated by the earlier offences and impose a sentence of 4 years imprisonment for each of those counts.
  10. To properly reflect the principle of totality, I make the following orders.
  11. I order that the sentences imposed for Counts 1, 2 and 3 be served concurrently with each other resulting in a total sentence for these three counts of 3½ years imprisonment.
  12. I order that the sentences for Counts 4 and 5 be served concurrently with each other resulting in a total sentence for these two counts of 4 years.
  13. The sentences imposed for Counts 4 and 5 are to be served cumulatively upon the sentences imposed for Counts 1, 2 and 3 resulting in a total sentence for Counts 1-5 inclusive of 7½ years imprisonment.
  14. The sentence for Count 6 is to be served cumulatively upon the sentences imposed for Counts 1-5 resulting in a total sentence for all six counts of 11½ years.
  15. I order that the total sentence be reduced by six months to reflect the late plea of guilty.
  16. The resulting sentences therefore are –

ORDERS


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

[1] Penal Code [Cap. 26], Section 143 (3).
[2] R v Pana, CRAC No.13 of 2013 at [16]
[3] R v Ligiau & Dori [1986] SBHC 15; [1985-1986] SILR 214.
[4] 5 See R v Pana, op.cit at [10] and R v Bosamete, CRAC No. 586 of 2013 at [48].

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