R v Fiuga [2019] SBHC 75; HCSI-CRC 91 of 2019 (17 October 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Fiuga
Citation:
Date of decision:	17 October 2019
Parties:	Regina v Andrew Loaki Fiuga
Date of hearing:	26 and 27 September 2019
Court file number(s):	91 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina J
On appeal from:
Order:	For the need of rehabilitation, the sentence is reduced by suspending 2 years, The total sentence to be served is 7 years,
Representation:	Mrs. R Olutimayin with Mr. J Auga for the Crown Mr. R S Manebosa for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual) Act 2016
Cases cited:	Pana v Regina [2013] SBCA 19, R v Mewa [2019] SBHC 33, Millberry v R [2002] EWCA

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 91 of 2019

REGINA

V

ANDREW LOAKI FIUGA
Accused

Date of the Hearing: 26, 27 September 2019
Date of Judgment: 17 October 2019

Mrs. Olutimayin R / Mr. J Auga for the Crown
Mr. R Manebosa for the Defence

SENTENCE

Maina PJ
Introduction

The Defendant Andrew Loaki Fiuga pleaded guilty and convicted on one count of sex with a girl under 15 years of age.
The offence under section 139 (1) (a) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 provide for maximum penalty of life imprisonment. Consent is not a Defence for this offence.

Facts

On the 27^th of December 2017 the villagers in Ogou village were busy at a soccer tournament hosted by the community to celebrate the festive seasons. While people were watching the game at the football field, Complainant and 2 other girls went to the sea shore nearby for fishing.
When they were fishing the Defendant approached them and told them he wanted to play with them and wanted to help Bianca to fish. The Defendant asked Complainant Bianca Ika if she knew him but she told him that she did not know him.
The Defendant told the other 2 girls to go away and they did, while he stayed alone with the Complainant Bianca Ika. Not long after, the 2 girls saw the man drowning her in the sea. The girls then came back to the spot or area where the Defendant was drowning the victim. It was just in time and they saw the Defendant was carrying Complainant Bianca. The Defendant tied Bianca’s mouth with his yellow shirt. Complainant Bianca tried to cry and resist but she could not because the Defendant was very a big man. At the time or moment Complainant Bianca’s trousers was not on her and there was blood coming out from her body.
When the girls saw what was happening to the Complainant they shouted out for assistance or help. John Harley and Janeth Mex were in the kitchen about 25 meters away heard the scream of a child in distress and they ran to the where the scream came from. It was about a distance of 10 meters away when Harley and Janeth saw Defendant was on top of the victim, trying to have sex with her. As Harley ran towards them, the Defendant saw him and ran towards to the sea. Harley lifted Bianca but she was covered with sand and blood. She was naked, unconscious, her hair was filled with sand, blood all over her thighs and private part.
Harley gave or handed over victim Bianca to Janeth and he ran after the Defendant who was trying to swim across to the open sea. Harley swam after him and shouted out for help and he managed to grab the Defendant in the sea and brought him out from the sea. The Defendant was kept by villagers until the police arrived at the village and visited the scene. The Defendant was also assaulted by the villagers.
The victim was taken to Atoifi and air lifted to Honiara for medical attention on the same day. The National Hospital medical report reveals that there were:

1. A tear on the posterior vaginal wall – tearing through the perineum, stopping ½ cm from the anus. It measured 15cm in length, 6cm wide and 2cm deep upwards in the vaginal canal.
2. Also, a tear on the right lateral vaginal wall (5cm long, 3cm wide and 1cm deep), stopping at the level of the cervix.
3. A penetrating would that went through the posterior fornix and avulsed the cervix, off the vaginal wall on the posterior fornix. The wound measured 5cm across the 2cm wide, vertically. The penetrating wound measured 10-12cm up into the Pouch of Douglas- it went up right into the abdomen. It went up right into the abdomen. Only the lower end of this wound was sutured.
4. All these lacerations were sutured with novosyn 2/0 stitch.
5. A laparotomy was then done to explore the wound which extended into the abdomen (meaning the abdomen was cut open to have a good look inside).

The sentence

The Defendant had sexual intercourse with Bianca Silas Ika, a child who at material time was between 8 and 15 years of age, to wit 8 years of age.
The severity in the criminality of the offence is accepted by the facts that sex with a child on this age is an abuse of right of the child and the long-term detrimental effects on the victims. I would stress again in the case that it all depends on the circumstances of each case, the offence, offender and the presence of aggravating and or mitigating features as they will form or be considered on its own merits to arrive at an appropriate sentence.
This offence under section 139 (1) (a) is notably with defilement under section 142 (1) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. It may now be called “defilement” or “rape” and whatever the circumstances would be the court is obliged consider the matters as ages of the victims, the likelihood that the accused is in a position of trust and the nature of that trust and the long-term detrimental effects on the victims that must be assessed for the appropriate sentence.
The child is below the age of consent and from the defilement cases as with Pana v Regina^[1], R v Mewa^[2] and others that came before the court in this jurisdiction the range of starting point is from 5 to 11 years
With the Pana v Regina case the court of Appeal stated that:

• “The English Court of Appeal in Millberry v R [2002] EWCA Crim 2891 warned of the dangers of double accounting when considering the aggravating aspects of a case. We suggest that, in all but the most exceptional case, the sole fact that the child is below the age of consent should in itself bring the starting point to eight years whether the conviction is for rape or defilement. The actual age of the victim should still be taken into account as a possible aggravating factor over and above that. It would not amount to double accounting because it is the fact the victim is a child which brings the case into the eight year starting point and so the actual age may be considered as an additional factor. Its aggravating effect on the sentence will usually be greater the younger the child”.

The Defendant commit a serious offence which carries the maximum penalty of life imprisonment, offender was 22 years old when he committed the crime. And these matters will be treated as the aggravating features

• Premeditation –ask if victim knew him as she may not be able to tell who abused her
• He drowned the complainant before he did what he did so that she will be unable to resist or cry out for help,
• He tied her mouth with his yellow shirt,
• Age disparity 15 years - between the accused who was in his early 22 at the time and Complainant was 8 years.

Both counsels by the submissions accepted these as mitigating features

• Guilty plea
• First offender
• His Young age – 22 years – rehabilitation
• Compensation – Defendant family paid 3 red money and $4000.00 to the Complainant’s family to restore relationship between the families.

By traditional obligation, this practice of compensation are done to restore, encourage and continue the peace and harmony among the two group of people concern in the communities, homes, villages, islands, provinces and the nation Solomon Islands. On that basis it has less effect as mitigation.
From the facts, offence, offender, aggravating and mitigating features the case is one in the category of high degree or exceptional case and deserve a similar starting point to the one suggested by the court of appeal in the Pana v Regina case.
As disclosed in the facts, this case involved a high level of sexual violence by the Defendant to the victim and probably now in Solomon Islands. And so, the starting point in the sentencing of this Defendant is 8 years.
Among the aggravating feature it is the significant age difference of 15 years as the complainant who was 8 years of age. There was also the physical harm with sexual violence (drowned and tied the mouth) done to the Complainant by the accused. These should increase the years of sentence for this Defendant.
I taking into account the aggravating and mitigating features set out above and the plea of guilty at the first opportunity as remorse by the Defendant. The Defendant is a young person and would need rehabilitation.
The Defendant is therefore sentenced to imprisonment for 9 years.

ORDERS

1. For the need of rehabilitation, the sentence is reduced by suspending 2 years,
2. The total sentence to be served is 7 years,
3. The time spent in custody awaiting the hearing of this case to be further deducted from the 7 years.

THE COURT
Justice Leonard R Maina
Puisne Judge

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^[1] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[2] [2019] SBHC 33; HCSI-CRC 591 of 2017 (19 March 2019)