R v Milamae [2020] SBHC 105; HCSI-CRC 247 of 2017 (25 September 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Milamae
Citation:
Date of decision:	25 September 2020
Parties:	Regina v Willie Milamae
Date of hearing:	23 September 2020
Court file number(s):	247 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. Impose a sentence of 9 years. 2. The period spent in pre-trial custody to be deducted from the total sentence
Representation:	Mrs. Olivia Manu Ratu for the Crown Mr. Daniel Kwalai for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S.139 (1), S.139 (2)
Cases cited:	Tammed v Federated States of Micronesia [1990] FMSC 13, Mamarika v R [1982] FCA 94, Soni v Reginam [2013] SBCA 6, R v Balekwai [2020] SBHC 84, Regina v Pana [2013] SBHC 88,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.247 of 2017

REGINA

V

WILLIE MILAMAE

Date of Hearing: 23 September 2020
Date of Decision: 25 September 2020

Mrs. Olivia Manu Ratu for the Crown
Mr. Daniel Kwalai for the Accused

SENTENCE

Bird PJ:

1. The defendant, Mr. Willie Milamae was charged with one count of having sexual intercourse with a child under 15 contrary to section 139 (1) of the Penal Code (Amendment) (Sexual Offences) Act 2016 and one count of indecent act of a child under 15 contrary to section 139 (2) of the Penal Code (Amendment) (Sexual Offences) Act 2016. Subsequent to a trial and on the 16^th September 2020, the court found him guilty as charged. Sentencing submissions were heard on the 23^rd September 2020.
2. On the outset, I wish to remind you that the offences for which you are charged are very serious. They both attract substantial imprisonment terms. The court is very concerned of the prevalence of such offending in our communities. Our communities and homes are no longer safe environments for our very young female children. Our homes are occasionally turned into crime scenes.
3. The facts of your case as found by the court are that you and the complainant both live at Karaina settlement in White River. The complainant’s grandmother is Hilda Puna. Hilda Puna has a house at Karaina settlement. The complainant’s father is Hilda Puna’s son. You live in Hilda Puna’s house. Hilda Puna is married to your father. The complainant’s father and you are step-brothers.

In the evening of the 22^nd January 2017, the complainant and her brother Moana went and slept at their granny Hilda Puna’s house. At about 3:00am on the 23^rd January 2017, you went into Hilda Puna’s house and saw the two children sleeping. Whilst in the house, the children started crying. The children then went to their mother and father who were sleeping in a separate house. The mother asked the complainant why she was crying. She told her mother that Willie licked her sepe (vagina) and poked her sepe.

The mother woke the father up and told him to ask the complainant. When he asked the complainant, he was told of the same story. The father and his brother went out and looked for you. When they found you, they assaulted you. The police were informed and you were then arrested.

4. In this jurisdiction, the starting point in such offending as this one and without any aggravating or mitigating features is one of eight years imprisonment. Where aggravating and mitigating features are present then the court must take those factors into account.
5. In your offending, the prosecution had submitted that there are a number of aggravating features that this court must consider and take into account in sentencing you. One of the most notable aggravating feature of this offending is the very young age of the complainant. She was only 4 years old then. She could have been seen as a baby, not capable of knowing or comprehending your unlawful and indecent actions on her.
6. Another aggravating feature is your age disparity. According to the evidence, the complainant was 4 years old. At the time of offending, you were 21 years old. The age disparity between you was 17 years.
7. It is also submitted that you have taken advantage of the complainant’s vulnerability to fulfil your own sexual lust and desire. At the time of the offending, the complainant was asleep without an adult person in the room. She was not in any position to defend herself.
8. It is also noted that you are a step-brother to the complainant’s father. A person known to the complainant as a family member. You live at the complainant’s grandmother’s house because your father is married to her grandmother. She recognised you as the perpetrator on the night in question. Being of the same household as the complainant, you were placed in a position of trust. You have breached that trust placed upon you and had sexually assaulted the complainant.
9. Another factor that is added to the seriousness of your offending is that you committed the offences in the cover of night. The complainant was asleep when you sexually abused her. The other occupiers of the household were also asleep.
10. The court is also concerned that what you have done to the complainant is an experience that she would not be able to forget for a long period of time. I have observed the complainant whilst giving evidence in court. She could still remember what you did to her in the early hours of the 23^rd January 2017. The complainant was traumatised and crying on that occasion.
11. In the case of R v Pana HCSI- CRC 402 of 2008, Justice Pallaras described this type of offending on a child as sickening and self-indulgent conduct where there is a total disregard to the safety, the health and the wellbeing of such a small child. That is how the courts of this land frown at such offendings as these.
12. For the above aggravating features, I will increase your sentence for a period of three years from the starting point.
13. On your behalf it was submitted that the court should take into account the assault that was occasioned on you by the complainant’s father and his brother on the 23^rd January 2017 before you were arrested by the police. The court was referred to two cases in support of that submission.
14. The first case was an Australian case of Mamarika v R [1982] FCA 94. The appellant was a member of a remote aboriginal community. He pleaded guilty to a charge of manslaughter and was sentenced to seven years and six months imprisonment. On appeal, the sentence was reduced to a four years suspended sentence on conditions. The Federal Court of Australia stated that the fact that the appellant was severely injured by members of his community as a result of his crime was a matter properly to be taken into account in determining the appropriate sentence.
15. In the case of Tammed v Federated States of Micronesia [1990] FMSC 13; 4 FSM Intrm. 26 (App. 1990), the court were of the view that the sentencing court must first consider whether the custom activities could be seen as actions of the state. There is no short-cut that customary punishments could be taken as mitigating in nature.
16. The court has noted that in both cases, the issue about custom punishments were brought out in court, including the extent and nature of the punishments inflicted. In your case, apart from what the complainant’s father had indicated in evidence that he punched you, there was no further evidence as to the extent of the assault. There is no evidence before this court that you were injured from the assaults occasioned against you. Nonetheless, I will take into account that you were assaulted prior to your arrest by the police.
17. Another mitigating feature in your favour is your youthfulness. You were a young man of 21 years when you committed the offences. You have a long way to go in life. I am of the view that you would have by now realised your mistake. As a young man, you have the chance to rehabilitate your life and to live a more respectable and meaningful life. You must learn to respect yourself so that you will be able to respect others.
18. Your lawyer had submitted that the young age of the complainant is not an aggravating feature in your offending. I do not agree with that submission because in many instances the courts have held that the sole fact that the child is below the age of consent is a very serious aggravating factor. See the courts comments in the case of Soni, Supa and Chahia SICOA- CRAC 27, 28 & 35 of 2012.
19. Your lawyer had also submitted that the issue of breach of trust is also not an aggravating feature in your case. In cases of this nature, a breach of trust had always been an aggravating feature. See the most recent case of R v Baddley Balekwai CRC 211 of 2020 in which the learned Chief Justice had stated that a breach of trust is an aggravating feature.
20. I have noted that you have spent a period of three years eight months in pre-trial custody. I will take that time into consideration in this sentence.
21. Upon the mitigating features raised on your behalf, I will allow a reduction of two years from 11 years.
22. I sentence to 9 years imprisonment to commence on the 25^th January 2017.

Orders of the court

1. Impose a sentence of 9 years.
2. The period spent in pre-trial custody to be deducted from the total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge