R v JL [2019] SBHC 106; HCSI-CRC 351 of 2015 (1 February 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v JL
Citation:
Date of decision:	1 February 2019
Parties:	Regina v JL
Date of hearing:	28 November 2018
Court file number(s):	351 of 2015
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer CJ
On appeal from:
Order:	1. Enter conviction for the three counts of defilement and impose sentences of 7 years each. 2. Order that each sentence of 7 years is to run concurrent to each other; the total sentence to be served therefore is 7 years. 3. Order that the period spent in custody is to be deducted from your sentence.
Representation:	Mr. Bradley Dalipanda for the Crown Mr. Ben Alasia for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, s136, s141 (1),s 142 (1) [cap 26]
Cases cited:	Regina v Pana [2013] SBCA 19, R v Griffiths [1989] HCA 39; [1989] 167 CLR 372, R v William, Regina v Clements [1993] 68 A, Bade v Regina [1988/1989] SILR 121, Augustine Laui v Director of Public Prosecution

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 351 of 2015

REGINA

V

JL

Date of Hearing: 28 November 2018
Date of Sentence: 1 February 2019

Mr. Bradley Dalipanda for the Crown
Mr. Ben Alasia for the Defendant

Palmer CJ.

1. You were initially charged with three counts of rape, contrary to section 136 of the Penal Code, and one count of indecent assault, contrary to section 141(1) of the Penal Code, to which you had entered not guilty pleas. Following plea bargaining between counsels, on or about 6 November 2018, the charges were amended to three counts of defilement. A nolle prosequi was filed on the earlier charges and an amended information filed containing the new charges of defilement.
2. You were re-arraigned and you entered guilty pleas to those three counts of defilement of a little girl below the age of 13 years, contrary to section 142(1) of the Penal Code [cap. 26]. The offence carries a maximum sentence of life imprisonment.
3. This maximum sentence of life imprisonment is a reflection of the seriousness with which this type of offence is regarded by Parliament and reflective of the communities concerns and aversion to this type of crime and the need to protect children from the predatory activity of some adults.
4. The starting point for this offence in the circumstances of this case with a feature of aggravation is ten years as set out in the case of Pana v. Regina^[1]:
   • “Whilst we do not interfere with the final sentence, we feel the proper reason for a higher starting point is the fact the offence was committed against a child.”
5. The summary of agreed facts showed that the first offence occurred when the child was only 8 years old. You were already a mature adult of forty plus years. These were repeated over a period of time on two other occasions, when the child was eleven years and twelve years old. The matter came to the light only when the child complained of a painful vagina, a couple of days after the sexual intercourse and it could no longer be hidden. When the mother enquired of her daughter about this, she told her mother of what had taken place. The matter was then reported to police and you were arrested and have been remanded in custody since about July or so of 2015.
6. I will give you credit for a guilty plea, for saving the victim the embarrassment and trauma of having to relive the incidents during trial and for saving court time and expense. I take into account as well that this is consistent with remorse, being sorry and willing to accept responsibility for your crime and shows a willingness to change and be a more responsible member of society on your release.
7. I will give you credit for having no previous convictions, that this is your first time to appear in court and for cooperating with the police during investigations.
8. I note that you have been in custody for a long time, more than three years, waiting for your trial, I will take that into account and give due credit for it.
9. On the other hand, the circumstances of the offending should not be pushed aside lightly, when there are a number of aggravating features present in your case.
10. I note the following aggravating features. The first is the breach of trust as a distant relative and a neighbor. The child lived with her parents’ right next door to your home and so you were familiar with the victim and ought to have demonstrated more care and responsibility for her, in looking after her instead of having to take advantage of her vulnerability and to abuse her for your sexual pleasure. You took advantage of your position to lure her to your home on those three occasions and convinced her to have sexual intercourse with you. You knew this was wrong by virtue of her very young age as a child and that she was incapable of fully comprehending and appreciating what was happening, yet you persisted to violate and damage her childhood for your own self-gratification. The emotional and psychological harm caused on such a young victim cannot be fully measured or comprehended.
11. The second aggravating feature is the age disparity between you and the victim, you were in your 40’s and she was only 8 when the first offence was committed. As an adult you should have known better and not harm and damage her childhood. It is difficult to measure the full impact or effect of such crime upon her very young and tender mind.
12. The third aggravating feature is the element of planning or deliberateness in the way they were committed. It was not something done on the spur of the moment, or that you were suddenly overcome by temptation. You had opportunity to think about it, knew she was vulnerable and open to your advances when she did not resist you and you took advantage of that to commit sexual intercourse with her on three separate occasions.
13. The fourth aggravating feature is that this was not a one off incident, but was repeated on three separate occasions. You knew it was wrong not only in law, but also in custom and according to Christian principles and had opportunity to stop and to desist from continuing with what you were doing but you did not. You ought to have known it was wrong to have sex with an underage girl, a child and that the law in this country seeks to protect them as vulnerable persons who are unable to protect themselves.
14. I accept submissions of your lawyer that the starting point in this type of case, where the victim is of tender age, to be ten years. This factor alone would make the other aggravating features to be more serious and also as correctly submitted by your lawyer warrants an additional four years to be added. This raises the total sentence up to 14 years. I give credit for your mitigating factors and give a one third discount for a guilty plea, your remorse, and for previous good behavior. This reduces the sentence by 4 years. I further take into account the delay in the hearing of your case and deduct 3 years, which reduces the sentence further to one of 7 years.
15. I am satisfied this period of 7 years adequately reflects the principles of retribution, deterrence, prevention and rehabilitation for each count. This brings me to the next question whether these should be made concurrent or consecutive to each other.
16. In considering that question a court is required to look at the totality of the sentence to be imposed and to ensure that an appropriate sentence is imposed for the criminality of the offender. This principle is widely accepted in other jurisdictions, for instance in Australia, in R v. Griffiths^[2], the High Court of Australia said:
    • “It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effects of the sentence on the offender ... This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently.”
17. See also in R v. Williams^[3] where the court observed that when cumulative sentences are being imposed even in relation to offences committed years apart, it is necessary to consider whether the total term which a prisoner may serve under the sentences is excessive and whether it will have an extremely onerous effect on the offender. In Regina v. Clements^[4] the court observed that the question must always be whether the total is appropriate.
18. The totality principle has been applied in this jurisdiction in Stanley Bade v. Regina^[5], and in Augustine Laui v. Director of Public Prosecutions^[6], per Ward CJ. Both cases reiterate the point that the court in each case should stand back and consider what is appropriate and just in the circumstances. If the total is both excessive and will have an extremely onerous effect on the offender then the sentences should be made to run concurrently.
19. In noting the circumstances of this case, while the offences committed were separate and therefore the appropriate order should be that they be served consecutively, which will come to a total of 21 years or only some be served consecutively, 14 years, having carefully considered the circumstances of this case and the offender, in particular the very long period of remand of 3 years waiting for his trial and noting the inherent benefits of his guilty plea in this instance, it is my considered view that the total sentence, whether 21 or 14 years will be excessive and have a crushing effect on the prisoner. Accordingly, I am satisfied the sentences of 7 years imprisonment for the three separate counts are to be made to run concurrent to each other. He will therefore only have to serve a total of 7 years.
20. Finally I further direct that the period spent in custody is to be deducted from the total sentence imposed, and you have a right of appeal if aggrieved by this sentence.

Orders of the Court:

1. Enter conviction for the three counts of defilement and impose sentences of 7 years each.
2. Order that each sentence of 7 years is to run concurrent to each other; the total sentence to be served therefore is 7 years.
3. Order that the period spent in custody is to be deducted from your sentence.

The Court.

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^[1] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013).
^[2] [1989] HCA 39; [1989] 167 CLR 372; 87 ALR 392, per Gaudron and McHugh JJat 393.
^[3] (CA(Qld), no. 362 of 1995, 28 November 1995 unreported, BC9502136)
^[4] [1993] QCA 245; [1993] 68 A Crim R 167 at 174 Pincus JA
^[5] [1988/1989] SILR 121 at 125
^[6] HCSI-CRAC N11-87 (unreported)