Regina v Bosamete - Sentence [2013] SBHC 37; HCSI-CRC 97 of 2009 (8 April 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

Criminal Case 97 of 2009

BETWEEN:

THE QUEEN

– V –

JEFFEREY PHILIP BOSAMETE

Coram: Pallaras J
Crown: Mr Nelson Dhita and Mr Josaia Naigulevu
Defence : Mr Wayne Ghemu and Ms Linda McSpedden

Hearing Dates: 25 – 27 March 2013
Verdict: 27 March 2013
Sentence: 8 April 2013

SENTENCING REMARKS

1. On 27 March 2013, I upheld a No Case to Answer submission and acquitted the Accused on two counts of rape. However, I found that he had a case to answer in relation to two counts of defilement, contrary to section 142 (1) of the Penal Code.
   
2. The Defence case then consisted of the Accused giving a short unsworn statement in which he basically reiterated that he was innocent of rape and that the sexual intercourse was completely consensual. I then convicted the Accused on the two counts of defilement.
   
3. The Complainant in this case was 12 years of age at the time of the offending against her. The Accused admitted that on two occasions in June 2008 he had sexual intercourse with the Complainant.
   
4. Section 142 (3) of the Penal Code provides that –
   

"It is no defence to a charge for an offence under this section to prove that the girl consented to the act."

5. During the Crown's case against the Accused for rape, the Complainant testified that there were two occasions in June 2008 when the Accused had sexual intercourse with her without her consent. She testified that she was on two occasions dragged into the bush by the Accused and raped.
   
6. On the first occasion, she saw the Accused holding a knife and was threatened by the Accused that if she did not come with him into the bush he would use the knife on her.
   
7. On the second occasion, two days later, even although she did not see the knife she was still fearful that he might use it on her based on the threat that the Accused had previously made.
   
8. In acquitting the Accused of the counts of rape I said that:
   

"I did not assess this young girl to untruthful, after all she was just 12 years of age when these events occurred and several years have passed since then. However after considering the content of her evidence and the Crown case as a whole, I have more than a little doubt about her reliability and do not believe that a conviction based on her evidence would be safe."

9. In finding her to be essentially a truthful witness but one whose evidence when taken as a whole and when considered in the light of other evidence in the Crown's case, made her a witness whose reliability suffered from her very young age at the time of the offences and the passage of several years since they occurred.
   
10. This is of course not to say that there were no elements of her testimony that I could accept. There were elements of her testimony which I did accept beyond reasonable doubt, one of which was her claim that she was threatened by the Accused with the use of a knife if she did not comply with his demands upon her or if she should tell others what he had done to her. I regard this as a significant feature of aggravation.
    
11. The Prosecutor in submissions said that the Crown opened on the basis that the Accused was 21 years of age at the time of his offending. The Defence submitted that the Accused did not know his age but estimated that in 2008 he was aged between 18 – 20 years of age. On any version, there was a significant age difference between the Accused and the Complainant who was then still a young child of 12 years of age who attended primary school at grade 4 level. I regard this too as a significant aggravating feature.
    
12. The Accused and the Complainant's father were first cousins and the Accused and the Complainant both regarded the Accused as the Complainant's uncle. This was an important relationship of trust and responsibility the breach of which I also regard as aggravating the offending.
    
13. As stated, the offences occurred in 2008 and there has been an unforgiveable delay of five years before this matter came to trial. It is apparent from the file that a great deal of this delay has resulted from the Accused, after being initially granted bail, avoiding the police in their efforts to locate him. While this makes their job much more difficult, I am not satisfied that sufficient effort was exerted by the police to locate him and bring him to trial. In the event I seriously suspect that this lengthy delay has seriously impacted upon the quality of the evidence called by the Crown.
    
14. I take into account that in the Accused's favour it can be said that he is person with no previous convictions. It is said, and I accept that his previous good character suggests that he has good prospects for rehabilitation.
    
15. He has made a very early offer to plead guilty to offences of defilement while maintaining his innocence of rape. At the conclusion of the Crown's case before me, I am told that he again offered to plead guilty to defilement which offer was refused by the Director of Public Prosecutions.
    
16. The Accused is to be given some credit for his admission to the offences of defilement although quantifying the benefit is problematic. There has been little if any utilitarian benefit derived as the Complainant and other witnesses still needed to attend Court to testify. However, it is put on his behalf and I accept that he was at least initially cooperative with the police in their investigations and has maintained throughout his willingness to plead guilty to the alternate charges.
    
17. It is said by the Defence that this also indicates a remorse by the Accused for his actions. I have some difficulty with this submission given that in his unsworn statement to me the Accused said that, in effect, the Complainant had lied in Court and that the two of them were in a boyfriend/girlfriend relationship throughout. I found this to be an extraordinary statement for a man to say about his niece and for a man of that age to say about a child of 12 years of age. I have serious doubts whether the Accused accepts that he has done anything wrong at all.
    
18. The maximum penalty provided for this offence is imprisonment for life. There can be no better indication of the legislature's regard for this offence as being one of the most serious of all criminal offences. The fact that section 142 (3) makes the question of consent irrelevant reinforces my view that the clear intention is that this is to be regarded as one of the most heinous crimes in the criminal calendar and that no excuse will be entertained. No doubt the framers of the section were well aware of the susceptibilities of young children whose will could so easily be bent to the will of an adult, either through persuasion, fear, coercion, violence or through the mere force of the relationship or the differences in age.
    
19. There is a malaise in this beautiful country that threatens to destroy it. It is a threat to the future because it is a threat to the children of this country and they are its future. It is a malaise that will do far more long term harm than malaria and dengue could ever do to this community. The malaise resides in the deep recesses of the minds of too many men who glory in the attitude that children are on this earth for their sexual gratification.
    
20. This country is not alone in this affliction but it has an advantage over larger nations with populations numbering in the millions. The advantage is that the community is organised into smaller, manageable, teachable units than are the metropolises elsewhere. There are leaders in those units, men and women of standing, who can influence and teach their wantok.
    
21. I plead with the chiefs and elders of every tribe, in every village, of every island in this island nation to take the lead in the protection of the young and overpowered.
    
22. To stand up for the women who are beaten and abused and to raise your voices of authority loud and clear when it happens to bring the offender to account.
    
23. To be the protector of the small children within your community and to stand between them and those who perversely think that it is their right to abuse them. To be the voice that shouts that this will not be tolerated any longer in your tribe or your village or in your Province. Not simply because it is against the criminal law of this country, or because it contravenes human rights that are protected by the civilised world community as rights attached to the very condition of being human, but simply because it is the right thing to do.
    
24. Teach your young men these things and be the community which stamps out any attitude that suggests that this perverse abuse can ever be acceptable in the future, even if it may have been overlooked in the past.
    
25. The legislators in providing the laws can do their part and the Courts, in applying the laws, can do theirs. But the most effective instrument of change is at the community, tribal and village level. It is through the strength, power and influence of those men and women of moral strength and goodwill who stand in those positions of authority to lead the change. I urge them all, as a matter of national urgency, to do so.
    
26. While regard is to be had for sentences passed in other cases of defilement, it is important to note when those sentences were passed and whether they still do justice to the long established guiding principles of sentencing. I take those principles to be retribution, deterrence, prevention and rehabilitation. Some of the cases presented to me as guidance patently fail to in any way satisfy those principles today.
    
27. It is common ground that where, as in this case, the law simply provides a maximum sentence, the Courts are rightly given a very wide discretion to determine the appropriate penalty in a given case. This enables a Court to look at the particular circumstances pertaining to the case under consideration and to assess the appropriate disposition while considering but not being bound by sentences passed in other cases.
    
28. In some of the authorities presented to me for consideration, sentences passed were measured in months and included sentences of suspended sentences. These authorities may have represented appropriate sentences based upon all of the evidential material before the Court at the time and for the time when sentence was passed. However, I am not persuaded that for a crime which is regarded so seriously as the defilement of a young child as to have provision for a sentence of life imprisonment, that a suspended sentence or a sentence measured in months could ever be appropriate, except for the most rare of cases.
    
29. This is not a rare case. It is a distressingly familiar scenario of an adult male using and abusing a young child for his own selfish perverse pleasure. This is an offence for which deterrence both general and personal must be uppermost in the sentencing process. A suspended sentence or a sentence measured in months in my view fails both of those objectives in large measure.
    
30. It also fails to adequately reflect the community's revulsion at these offences and their natural yearning to see that the youngest members of their community, those who cannot protect themselves, are protected by the application of strong and just laws against those who prey upon their children.
    
31. In coming to an appropriate sentence in this case, I have regard to the Accused's offer of an early plea, repeated during his trial at the close of the Crown case and his previous good character. He is still a relatively young man (although his precise age is undetermined) with claimed prospects of rehabilitation. As stated earlier, based on his attitude to his offending, I find this submission to be problematic. I am also told that his family has payed traditional compensation to the family of the Complainant.
    
32. In my judgment, a sentence that appropriately reflects the seriousness of the offending and the general principles of sentencing outlined above is a sentence of 5 years imprisonment for each count of defilement.
    
33. It has been suggested to me that the sentences should be made concurrent because of the short time gap between the two offences. I cannot agree with this submission. The first offence occurred on the 26 June 2008 and the second offence occurred on the 29 June 2008. They were quite patently separate offences with the second being committed on the third day after the commission of the first offence. The Accused had ample time to reflect on his actions, to reconsider what he planned to do and to desist. He did not do so. Instead, with the opportunity of at least two days to cool off and come to his senses, he decided to abuse the young girl again. Except for a consideration of the totality principle which I discuss below, I can see no justification for imposing anything other than consecutive sentences.
    
34. That results in a total sentence of 10 years imprisonment. I have regard to the principle of totality and consider that it is appropriate to apply it to better reflect a just sentence. In so doing I reduce the total sentence to one of 8 years by ordering that the first 2 years of the sentence for Count 2 be served concurrently with the sentence being served for Count 1.
    
35. Having regard to the matters put on behalf of the Accused and in particular, his willingness to plead guilty to the offences of defilement, I further reduce the total sentence by 1 year.
    
36. As a result, I make the following orders.
    

ORDERS:

1. The Accused is acquitted of the two counts of rape charged in the Information.
2. The Accused is convicted of two counts of defilement.
3. In respect of the First Count of defilement, the Accused is sentenced to 5 years imprisonment.
4. In respect of the Second Count of defilement, the Accused is sentenced to 5 years imprisonment.
5. The first 2 years of the sentence for Count 2 are to be served concurrently with the sentence for Count 1, making a total of 8 years imprisonment.
6. The resulting total sentence of 8 years is to be further reduced by one year.
7. As a result of the foregoing Orders, the Accused is sentenced to serve a total period of 7 years imprisonment.
8. Time spent in custody is to be taken into account.

THE COURT