Regina v Pana Sentence [2013] SBHC 88; HCSI-CRC 402 of 2008 (16 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 402 of 2008

Before: PALLARAS J

Hearing Dates: 10th June 2013
Sentence Delivered: 16th July 2013

Crown: Mr. R. Iomea
Defence: Mr. Ifuto'o

REGINA

V

WARREN RINA PANA

SENTENCE

1. By an Information dated 24 November 2008, Warren Rina Pana ("the accused") was charged with one count of indecent assault contrary to Section 141(1) of the Penal Code (Count 1) and one count of defilement contrary to Section 142(1) of the Penal Code (Count 2). Both offences were alleged to have occurred between 1st day of December 2007 and 4th day of January 2008.
   
2. At his trial in Gizo on 10th June 2013, the accused pleaded not guilty to both counts.
   
3. The prosecution sought to tender two records of interview conducted with the accused on 20th and 21st February 2008 at Gizo Police Station. The first interview related to the offences of indecent assault and defilement while the second related to an allegation of rape. It was said by the prosecution that the accused had made admissions to each charge in the records of interview.
   
4. In respect of the first interview, the prosecution sought to rely on an unsigned re-typed version of the interview. They were not able to say who did the re-typing nor when it was done. Neither the prosecution nor the police were able to produce a record of interview signed by the accused or indeed anyone else.
   
5. In respect of the second interview, the prosecution submitted that even although the accused had not been charged with rape, the interview was nevertheless relevant and admissible although they were unable to explain how this could be so. It should again be noted that the prosecution were unable to produce any interview signed by the accused and again sought to rely on an unsigned, re-typed interview without being able to nominate who typed it or when it was typed.
   
6. The trial began with the prosecution calling evidence on the voir dire as to the records of interview. The first witness (PW1) was Detective Sergeant Vincent Eria. He, together with a Sergeant Sogavaka and in the presence of PPF Advisor Tony William interviewed the accused.
   
7. In respect of the first interview, the only objection to the document made by the defence was on the basis that the accused had been pressured by the police to make the admissions contained in it. No objection was initially made that the contents of the document were inaccurate or that the document produced by the prosecution did not truly record what had been said during the interview or that it was not the original document and was unsigned.
   
8. In respect of the second interview the defence objected to its admissibility on the basis that the accused had been pressured by the police into making the admissions of rape. No objection was initially made to the admissibility of this interview on the basis that it was irrelevant to the charges faced by the accused, or that the contents of the document were inaccurate or that the document produced by the prosecution did not truly record what had been said during the interview or that it was not the original document and was unsigned.
   
9. Given that PW1 was testifying as to events which had occurred over 5 years previously, it is unsurprising that he continuously reverted to giving evidence in terms of what his "usual practice" was rather than what actually occurred on the day. While he produced his police notebook, it was virtually useless in providing accurate details of what had occurred with the accused and in fact on one significant point, contradicted the viva voce evidence given by him.
   
10. Needless to say, the attempt to rely on these documents and evidence given purportedly by memory of events which had occurred five years ago, did little credit to either the prosecution or PW1. It reflected poor preparation and a very limited understanding of the rules of evidence.
    
11. It had been agreed between the parties that the evidence taken on the voir dire would stand as the evidence in the trial, so at the conclusion of PW1's evidence it was convenient for the prosecution to call the complainant. No ruling on the voir dire had yet been made.
    
12. At the time of the offending, the Complainant was just 3 years and 7 months old. When she was called to give evidence at the trial she had, just two days earlier, had her 9th birthday. The prosecution sought to lead evidence from the Complainant which was said by the prosecutor to have been consistent in proofing with two statements said to have been made by the Complainant when she was 3 years of age. When it was put to the prosecutor that the statement, in terms of the vocabulary used and the sophistication of the language, was not consistent with having been made by a 3 year old, he said that he had proofed the Complainant and that the statements purporting to have been made by the 3 year old, were indeed her statements. He further assured the Court that the child was ready and able to testify.
    
13. When the Complainant was brought into Court it was obvious to all that she was neither able or ready and was in no condition to testify. She could be heard in great distress outside the Court and when she was brought into Court she was sobbing and trembling and clung tightly to the police woman accompanying her. It eventuated that not only was she unable to give evidence she was unable even to speak, barely acknowledging what was said to her by simply nodding or shaking her head. I was not satisfied that she was capable of giving evidence without suffering further trauma and there was a real question as to whether or not she understood the importance of telling the truth in Court.
    
14. As a result, the Complainant was excused from further attendance that day and invited to return the following day in the hope that she would be in a better emotional and psychological state.
    
15. On the second day of trial, Mr. Ifuto'o asked that the accused be re-arraigned. When the charges were put to him again, the accused pleaded guilty to both counts. No further evidence was called.
    
16. The facts of the offences were agreed between the parties as follows.
    
17. The Complainant was born on 8th June 2008 and at the time of the offences was 3 years and 7 months old. The accused was then 33 years of age. He was the brother of the Complainant's father.
    
18. On an unknown date between 1st December 2007 and 4th January 2008 the Complainant was in a room of a house where the accused was residing at Savanga village, Kohingo Island, Western Province. The accused undressed the Complainant and touched her vagina with his fingers. He then undressed himself and had sexual intercourse with the Complainant by forcing his penis into her vagina and ejaculating.
    
19. Some days after the offences were committed, whilst her mother was bathing her, the Complainant complained of pain and soreness to her vagina. Her mother asked her why it was sore and the Complainant replied "Rina".
    
20. As the Complainant continued to have pain in her vagina, she was taken to Koqupoana Aid Post where she was examined by a nurse. After examining her, the nurse referred the Complainant to Helena Goldie Hospital to be seen by doctors.
    
21. On 20th January 2008, the Complainant was seen by Dr. Andrew Soma. In his report dated 27th January 2008, Dr. Soma reported his finding which included a yellowish discharge from the vagina, a small abrasion on the right external vaginal wall and the absence of a hymen. His findings led him to conclude that there was evidence of vaginal penetration and that the Complainant had contracted gonococcal infection, which is the bacterium that causes gonorrhoea.
    
22. On the following day, 21st January 2008, the accused was examined by Dr. Michael Buin at Gizo hospital. He found that the accused had active gonorrhoea infection.
    
23. In reply to a question from the Court, the defence announced that it did not admit that the accused had given the disease to the Complainant. In my judgement, it was potentially a significant feature of aggravation if the accused had transferred his disease to the Complainant. It was even worse if he did so knowingly. A trial of the issue was set for Tuesday, 16th July 2013.
    
24. The evidence showed that the only complaint made by the Complainant of having soreness in her vagina came some days after the assault on her by the accused. Given the relative physical development of the accused and the Complainant it is hardly surprising that the child had general soreness and an abrasion at the right external vaginal wall.
    
25. Since the prosecution relied on the transmission of the disease by the accused to the child as an aggravating feature, it was upon the prosecution to prove this fact beyond reasonable doubt. Facts may of course be proved in a number of ways including direct evidence and circumstantial evidence. In this case the direct evidence (by reason of the admissions of the accused) is that he had sexual intercourse with the Complainant. When he was seen by the doctor on 21st January 2008 his gonorrhoea infection was active. The Complainant had, on the day before, also been found to be infected with gonorrhoea.
    
26. Is it reasonable to infer that the Complainant who only complained of soreness and was seen to have vaginal discharge after the accused had sexual intercourse with her, had by reason of that sexual intercourse contracted the disease? Or is it simply coincidental that both the Complainant and the accused had the same sexually transmitted disease at the same time. Given the tender age of the Complainant of 3 years and 7 months, on the evidence before me there is no other reasonable explanation to explain her infection. I find that the only reasonable explanation on the evidence is that the accused afflicted by gonorrhoea at the time he had sexual intercourse with the Complainant, transferred the disease to her. I find this as a fact beyond reasonable doubt.
    
27. While I strongly suspect that the accused well knew that he had the disease at the time of his offending and find it very hard to accept the accused's claim that he did not know that he had gonorrhoea at the time of the offence, there is insufficient evidence for me to conclude beyond reasonable doubt that he had intercourse with the Complainant knowing that he was so afflicted. The Crown have failed to prove this aspect of aggravation of the offence. Indeed, they did not even attempt to do so and I am not prepared to draw this inference against the accused beyond reasonable doubt.
    
28. A crime of this dimension is difficult to comprehend. To assail a completely helpless infant in such an offensive way is a complete affront to the dignity and humanity of the child. The community is rightly repelled by such sickening, self-indulgent conduct particularly where there is a total disregard to the safety, the health and the well-being of such a small child. This is an invasion of such dimension that after seeing the child in Court, one can only hope that someday she will recover sufficiently to lead a life without fear and trepidation. It will however be a very long road for her and her family. The impression she left on all who witnessed her demeanour will remain forever and I have no doubt that the sight of her distress played no small part in the accused changing his plea to guilty on the second day of the trial. While it was an extremely late plea, it was at least a merciful one.
    
29. The aggravating features of this case are numerous.
    
30. The first is the very young age of the Complainant, not yet 4 years old at the time of the offence.
    
31. Next is the age disparity between the accused who was in his early 30's at the time and Complainant.
    
32. Next is the relationship between the two with the accused occupying an important position of trust and responsibility as the uncle to his brother's daughter.
    
33. Next is the physical harm that these offences have had on the Complainant. The impact that being infected with gonorrhoea can have on the Complainant is overwhelming. While this disease can be monitored and treated in modern societies, in the lifestyle of the Complainant one is disturbed by the possibility that without treatment it is well known that this is a disease that can lead to infertility in women and painful inflammation throughout the body and joints including the valves of the heart.
    
34. Next was the visible emotional and psychological impact that these offences have had on the complainant.
    
35. In the accused's favour it can be said that he is a man with no previous convictions and is still at 38 years of age, a relatively young man. He is married with two young children, both of whom were alive at the time he offended against his brother's child. I am told that his children now live with his father in law, the accused's wife having died in 2012. He is unemployed and has limited education. He also entered a late plea of guilty to the charges and avoided the necessity of the Complainant having to return to Court to testify.
    
36. While these matters personal to the accused are significant, it is well established that in cases such as this, personal matters may carry less impact than they might otherwise do[1].
    
37. The penalty provided upon conviction for indecent assault is a maximum of 5 years imprisonment. The prosecution accept that the indecent assault consisted of the accused undressing the Complainant and touching her vagina.
    
38. The penalty provided upon conviction for defilement is a maximum of life imprisonment. This is of course provided to deal with the most serious of cases of this type. It also demonstrates that the legislature have regarded this offence as being so serious as to merit the availability of the most severe punishment available under Solomon Islands law.
    
39. I have been referred to Soni V Reginam [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013) as being relevant to sentencing in defilement cases. Those were appeals against sentence in respect of convictions for rape wherein the Court of Appeal expressed the view, inter alia, that there was no evidence as to the level of sexual violence, in particular rape, in Solomon Islands.
    
40. In their "Second Interim Report – Sexual Offences June 2013" the Solomon Islands Law Reform Commission ("LRC") made a number of recommendations to government for the creation of new sexual offences and increases in penalties for other sexual offences so as to "make the Penal Code more responsive to the modern needs of the Solomon Islands"[2].
    
41. In a wide ranging study across Solomon Islands, the LRC found what it described as
    

"an alarming level of sexual violence".[3]

Of the 2,615 women aged 25 to 49 years surveyed, 55% of the women had experienced sexual violence from their partner including forced sexual intercourse (53%), having sexual intercourse out of fear (43%) and having to perform a sexually degrading or humiliating act (28%). 18% of women interviewed reported experiencing non-partner sexual violence.[4]

42. The study also collected information about child sexual abuse. 37% of women reported that they had been sexually abused when they were under the age of 15 years. 53% of these women reported that the child sexual abuse had occurred three or more times with the perpetrators being boyfriends (36%), strangers (24%), family members (19%), male friend of family (16%) and acquaintances(15%).[5]
    
43. For 17% of women their first sexual experience was somewhat coerced and for 20% their first sexual experience was forced.[6]
    
44. A study on mental health issues for young people in the Solomon Islands revealed that reports of 'longlaen' were common in Honiara. 'Longlaen' is the gang rape of young women and almost always involves drugs or alcohol.[7]
    
45. As shocking and as disturbing as these figures are, they are yet only the tip of the iceberg. As the LRC found, most sexual offences committed against women are not even reported to the police and fewer still are prosecuted in our courts. Despite these reports, the majority of sentences passed for rape between 2003 and 2010 were said to be –
    

"at the bottom end of the scale (three years)".[8]
The LRC reports that -

"compared to other countries in the region such as Vanuatu, Papua New Guinea and Fiji sentences for sexual offences in Solomon Islands are low."[9]

46. When the harsh reality of these results are combined with what the Court of Appeal said in Soni that "local knowledge is often used by judges concerning matters for determination",[10] there can be now no room for doubt where that knowledge can be found. The very high levels of sexual violence and the historically low levels of punishment (particularly for rape) in Solomon Islands are patently clear for all to see.
    
47. While the Court of Appeal in hearing the matters of Soni, Supa and Chachia were dealing with three cases of rape and not defilement, their Lordships' remarks in relation to sentencing are apposite in the current case.
    
48. In the judgment of the Court, in discussing the starting point of sentences imposed upon conviction, their Lordships said –
    

"The presence, however, of more than one of those features of aggravation may suggest that a departure from the starting point is appropriate. As indicated in Billam, where any one or more of these aggravating features are present, "the sentence should be substantially higher than the figure suggested as the starting point."

Where the sentencing judge feels constrained to depart from established guidelines he or she is entitled to do so if the circumstance of the case warrant such a departure. In that instance, it is simply necessary for the sentencing judge to give reasons for the departure from those guidelines."[11]

49. In submissions from both counsel, it is put that there is no starting point established for sentencing persons convicted of defilement in Solomon islands. It is agreed that the maximum penalty provided under section 142 of the Penal Code is imprisonment for life. This penalty is of course provided for those cases, which can be said to be of the worst of this type. Having regard to the numerous aggravating features of this case identified above, I find it difficult to resist the conclusion that this case is precisely that, one of the worst of its type.
    
50. I also respectfully agree with the view expressed in Milberry[12] that a sexual offence against a child is more serious than the same offence perpetrated against an adult and attracts a higher starting point.
    
51. The Court of Appeal, in a decision that predates and therefore takes no account of several significant Solomon Island studies[13] and widespread public concern relating to them, has recently decided that there was no need to increase the starting point for sentencing those who have been convicted of rape with a feature of aggravation. The starting point is to be 8 years imprisonment.[14] In their judgement their Lordships said
    

"As indicated in Billam, where any one or more of these aggravating features are present, 'the sentence should be substantially higher than the figure suggested as the starting point'"[15]

52. Following the principle enunciated in Milberry, in my judgement the starting point for sentencing those who have been convicted of the crime of defilement with a feature of aggravation should be imprisonment for 10 years. The feature of aggravation which I take into account in this regard is the significant age difference between the accused who was in his thirties and the complainant who was three years of age.
    
53. In my judgment, this is precisely the sort of case as mentioned in Billam, where the circumstances of the case warrant a departure from the starting point. The circumstances I refer to here are the extremely young age of the Complainant (as opposed to the age difference between the Complainant and the accused), the betrayal of trust by the accused in his position as uncle to the Complainant, the physical harm done to the Complainant by the accused and the emotional impact that this experience has had on the Complainant. These additional and very serious factors add substantially to the appropriate sentence for these offences and I consider that an additional four years imprisonment would be appropriate.
    
54. I have set out above the matters raised in mitigation on the accused's behalf. I take all of those matters into account but give most weight to his plea of guilty. While there was some little utilitarian value in the plea, given that it was made on the second day of the trial with most of the witnesses at court, I take the plea to demonstrate some remorse by the accused for what he has done to his niece. I have no doubt that he, like all others in court, was moved by the pitiable sight presented by the Complainant when she was called to testify. His plea was extremely late but demonstrated a merciful attitude for which he is to be given credit.
    
55. As a result of these findings, in relation to Count 1, the accused is sentenced to 2 years imprisonment. In relation to Count 2, the accused is sentenced to imprisonment for 14 years. I order that the sentence for Count 1 be served concurrently with the sentence being served for Count 2 making a total sentence of 14 years. I further order that this sentence be reduced by 2 ½ years to reflect the late plea of guilty by the accused, making a total of 11 ½ years imprisonment.
    

ORDERS:

1. The accused is convicted of one count of indecent assault (Count 1) contrary to section 141(1) of the Penal Code.

2. The accused is convicted of one count of defilement (Count 2) contrary to section 142(2) of the Penal Code.

3. In respect of Count 1, the accused is sentenced to imprisonment for 2 years.

4. In respect of Count 2, the accused is sentenced to imprisonment for 14 years.

5. The sentences for Count 1 and Count 2 are to be served concurrently.

6. The total sentence of 14 years is to be reduced by 2 ½ years making a total sentence of 11 ½ years.

THE COURT

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^[1] R v Ligiau and Dori [1985-1986] SILR 214
^[2] at para.1.4
^[3] Ibid, para.2.3
^[4] Ibid, paras. 2.3-2.4
^[5] Ibid, para.2.5
^[6] Ibid, para.2.6
^[7] Ibid, para.2.9
^[8] Ibid, para.2.13
^[9] Ibid, para.2.15
^[10] Soni V Reginam [2013] SBCA 6 at para.38; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013)
^[11] At paragraphs 12 and 13.
^[12] [2002] EWCA Crim 2891 (9 December 2002), 31.
^[13] (i)Review of the Penal Code and the Criminal Procedure Code, SECOND INTERIM REPORT, SEXUAL OFFENCES, JUNE 2013; (ii) Solomon Islands Family Health and Safety Study, Ministry of Women, Youth and Children; and (iii) Solomon Islands CEDAW Combined Initial, second and Third Periodic Report 2012.
^[14] Soni, Supa & Chachia v R SICOA CAC 27, 28, 35 of 2012 at p.6
^[15] Ibid., p.6