R v Kendrick [2020] SBHC 134; HCSI-CRC 133 of 2017 (4 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kendrick
Citation:
Date of decision:	4 August 2020
Parties:	Regina v Jack Lesman Kendrick
Date of hearing:	31 July 2020
Court file number(s):	133 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer CJ
On appeal from:
Order:	1. Enter conviction for the offence of sexual intercourse with a child under 15 years of age and impose sentence of 7 years. 2. The period spent in custody is to be deducted from the sentence. 3. Direct that the defendant be released at the rising of the court having served a substantial part of the sentence.
Representation:	Ms Patricia Tabepuda for the Crown Mr H Kausimae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2018 S 139 (1) (a) Penal Code S 142 (1)[cap 26]
Cases cited:	Pana v Regina [2013] SBCA 19, R v Billam [1963] 8 CR,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 133 of 2017

REGINA

V

JAMES LESMAN KENDRICK

Date of Hearing: 31 July 2020
Date of Sentence: 4 August 2020

Ms Patricia Tabepuda for the Crown
Mr H Kausimae for the Defendant

Palmer CJ.

1. You were initially charged with rape, to which you entered a not guilty plea, and a trial scheduled for hearing on 27^th July 2020. At the commencement of trial however, Ms. Tabepuda indicated to the Court that another charge was to be preferred. The charge of rape was then subjected to a nolle prosequi by the learned Director of Public Prosecutions (“the Director”) and substituted with the charge of sexual intercourse with a child under 15 years of age, contrary to section 139(1)(a) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. On arraignment under the substituted charge, you entered a guilty plea and the matter listed for hearing of the summary of facts, and sentencing submissions and mitigation.
3. Under the repealed provision, section 142(1) of the Penal Code (cap. 26), this offence was described as defilement of a girl under thirteen years of age. The maximum penalty in both however remained the same, that of life imprisonment. This reflects the seriousness and concern with which Parliament holds in respect of this type of offences and the need to protect young girls from the predatory activities of some men. Young children of very tender age fall within this category. In Regina v. Hoka CRC 159 of 2011, 10 December 2012, Pallaras J. addressed this in his sentencing remarks at paragraphs 14 and 15 and commented at paragraph 16 as follows:
   • “This Court has a small but vital role to play in this process. It is to deliver fair and just penalties befitting the crime in a manner that will serve the long accepted need to impose sentences in appropriate circumstances that will act as both general and specific deterrents. The community has a right to expect that of its Courts and the Courts must respond appropriately.”
4. Courts in this country are obliged to consider sentences that reflect this widespread public concern in the community and impose appropriate sentences in each case.
5. In Pana v. Regina^[1], the Court of Appeal noted the concerns about the “alarming level of sexual violence”^[2] in Solomon Islands and the need to consider increases in penalties. At paragraph 13 of Pana, the Court of Appeal noted the close parallel between offences of rape and defilement with the maximum penalty in both being the same, that of life imprisonment. It went on to say:
   • However, the circumstances in cases of defilement can be so different from one offence to another in respect, for example, of the 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 the courts must continue to assess the appropriate sentence on the nature and individual circumstances of the case before it."
6. The Court also endorsed the Billam guidelines^[3] in which the three starting points of five, eight and fifteen years for rape were set, and noted that where the victim is a child below the age of consent, the starting point should be eight years. It stated that this should be the same for offences of defilement. At paragraph 16 of Pana, it stated:
   • “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 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.”
7. The starting point in this case without any aggravating or mitigating features, in a non-contested case should be eight years. In the circumstances of this case, where aggravating features exist, there should be an increase in the sentence of imprisonment to be imposed.
8. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the following additional aggravating features in this case. First, is the age of the victim at 7 years old, which places her at a very tender and vulnerable age at the time of commission of the offence. Her extremely young age is a very serious aggravating feature^[4].
9. The second aggravating feature is the disparity in age. The defendant was a young person, older than the victim at 17 years as opposed to the child at 7 years old, an age difference of 10 years between the two of them. This places him in a position of responsibility and trust over the victim. He failed to take care of her as the older and more mature party.
10. The third aggravating feature is the position of trust and responsibility that he held as an uncle, a close relative of the victim, which he abused and took advantage of. She expected you to take care of her but instead you betrayed her trust and confidence in you as an uncle and allowed your feelings and desires to take control of you. You took advantage of your age and your position of trust to abuse her. You have caused needless distress and trauma upon the child and whatever emotional and psychological damage may have been caused will take many long years to heal.
11. The fourth aggravating feature relates to the location of the offence and the threats of violence made to her to comply with your demands. The home is supposed to be a place of safety and security for a child, but you have breached the sanctity of her home.
12. The fifth aggravating feature is the physical harm and injury caused, a form of invasive violence of the extreme kind where the victim, a young and helpless child who could not defend and protect herself from your advances was sexually violated for your own selfish desires. This eventually led to the discovery of the offence when she complained of pain in her vagina. Your actions caused injury to her vagina apart from the untold suffering and pain that she will have to endure for a long time to overcome this traumatic invasion of her body and personality at such a tender age.
13. These aggravating features collectively merit the increase of an additional three years raising the sentence to 11 years.
14. On the other hand I note your mitigating factors and balance these against the aggravating features present in your case. Credit must be given for your change of plea, which apart from the utility of saving court time and expense, saves the complainant from the distress of having to relive the trauma from the witness box. In addition I note that it would have been quite difficult in the circumstances of a child of tender years, to be required to go through the drama of a trial, to give evidence under oath and be subjected to cross examination, a difficult and demanding task by any standard for the victim. You have by this guilty plea shown mercy and understanding and I give credit for that.
15. It is demonstrative too of remorse on your part and a realization and acceptance, of the error of your ways. That is always the first step towards change, reformation and a successful rehabilitation. As a young man, your prospects of rehabilitation are good.
16. I note you were a juvenile at the time of commission of offence, you were 17 years of age; credit is given for that. I note your family have also organized and arranged for payment of compensation in custom to the victim’s mother and relatives to restore peace and harmony and to facilitate reconciliation and restoration of relationships with your families. This paves the way for your return and acceptance back into your community on your release.
17. I note you have no previous convictions and that this is your first time to appear in court.
18. In addition I note you have waited for a long time, almost 4 years in pre-trial custody for your case to be heard; you were remanded in custody on the 15^th August 2016. I take this too into account in determining the appropriate sentence to be imposed.
19. The courts have duty to protect the helpless, the weak and those who are vulnerable, by ensuring that an immediate custodial sentence is imposed in this type of offending. It also has a duty to send out a clear message that those who commit this type of offence must expect a lengthy prison sentence. Each case however has to be determined on its own merits and an appropriate sentence imposed that balances these elements of retribution, deterrence, prevention and rehabilitation. The issue of sentencing in your case is in determining the appropriate sentence to impose.
20. Taking all your mitigating factors into account, I deduct 2 years for your guilty plea, 1 year for the fact that you were a juvenile, and another year for other mitigating factors, leaving a total sentence of 7 years to be served. I am also satisfied that the period spent in custody is to be deducted from the sentence imposed. Noting that a substantial part of the sentence has been served in pre-trial custody, and being satisfied that this is sufficient punishment for you as a juvenile, I also direct that you be released at the rising of the court.
21. You have a right of appeal if aggrieved by this sentence.

Orders of the Court:

1. Enter conviction for the offence of sexual intercourse with a child under 15 years of age and impose sentence of 7 years.
2. The period spent in custody is to be deducted from the sentence.
3. Direct that the defendant be released at the rising of the court having served a substantial part of the sentence.

The Court.

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^[1] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[2] 2^nd Interim Report – Sexual Offences, of the Solomon Islands Law Reform Commission Review of the Penal Code and Criminal Procedure Code, published in June 2013 at page 39, paragraph 2.3.
^[3] R. v. Billam [1963] 8 CR. App. R. (S) 48
^[4] R. v. Ligiau and Dori [1986] SBHC 15