R v Loghaniatu [2021] SBHC 105; HCSI-CRC 190 of 2019 (10 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Loghaniatu
Citation:
Date of decision:	10 September 2021
Parties:	Regina v Gregory Loghaniatu
Date of hearing:	3 September 2021
Court file number(s):	190 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Loghaniatu
On appeal from:
Order:	1. The defendant is hereby sentenced to 5 years imprisonment for the offence of incest contrary to section 163 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. Time spent in pre-trial custody is to be deducted from the total sentence. 3. Right of appeal.
Representation:	Mrs. Dalcy Belapitu Oligari for the Crown Mr. Sholton Rodney Manebosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offense) Act 2016 S 163 (2) (a) [cap26], S 139 (2) (a) [cap 26]
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, Regina v Phoboro [2013] SBHC 8, Pana v Regina [2013] SBCA 19, Kyio v Regina

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 190 of 2019

REGINA

V

GREGORY LOGHANIATU

Date of Hearing: 3 September 2021
Date of Decision: 10 September 2021

Mrs. Dalcy Belapitu Oligari for the Crown
Mr. Sholton Rodney Manebosa for the Defendant

SENTENCE

Bird PJ:

1. On the 5^th August 2021, the defendant, Mr. Gregory Loghaniatu was convicted of one count of incest contrary to section 163 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Due to reasons beyond the court’s control, sentencing submission from counsel was not done until the 3^rd September 2021.
2. The maximum penalty for this type of offending is an imprisonment for life. That maximum penalty shows that this type of offending is very serious and the courts will not tolerate or condone such offending.
3. In cases of this nature, it is only appropriate that a custodial sentence must be imposed. This is an outrageous offence that attacks the fabrics of our society. The family circle is the foundation of our society and such offences as these directly attacks upon that foundation.
4. In sentencing you for this offence, I am guided by the principles set out by the Court of Appeal in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145. The Court of Appeal in those cases had stated that in sexual offences cases four factors should be considered. They include age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. In your case, there is a huge disparity of age between you and your daughter. You were 31 years old then and your daughter was only 8 years old. The age difference between you and your daughter was 23 years. At the age of 8 years, you have robbed your daughter of her innocence.
6. There is also presence of abuse of position of trust. You are the father of the victim. As your biological daughter, you should be the very person that should take care of and protect the victim. Every child should be able to feel safe and secure in their home but you have committed this offending right inside your family home. It is a shame that you have turned your family home into a crime scene. You have abused the trust placed upon you to be a good and responsible father to the victim.
7. I have also considered the psychological and emotional stress you have caused on the victim for what you have done to her. Instead of owning up to the offending, you have allowed the victim to be called upon to give evidence in court. It had caused the victim additional emotional and psychological stress. I have observed the victim giving evidence in court and can sympathise with her having to go through the task of reciting what you did to her on the night of the offending.
8. I have also noted that you were drunk when you committed the offending. I must tell you that being drunk is not an excuse in committing the offence. You have been a very irresponsible father to the victim and I sincerely hope that you have learnt from this mistake and will make amends with your daughter, the victim in this case.
9. I am further told that another aggravating feature in your case is that you have committed the offending at night time. You used the cover of night to commit this horrific offence. You might have thought that the victim would not be able to recognise you. You were wrong because she was able to recognise you by voice identification. She is your daughter. How on earth would it be possible for her to lie about what you did to her on that occasion.
10. After having stated the aggravating features in your case, I am also minded to take note of the mitigating features therein. I am told by your lawyer that you are a first offender without any previous conviction. The court takes note of that fact but I also wish to say that you should not have allowed yourself to stoop so low and abused your own daughter. In that regard, I am also minded to take note of the comments of the Honourable Chief Justice Palmer in the case of Frank Kyio v Regina Criminal Appeal Case No. 259 of 2004 when he stated “If if is sought to be argued that he is a man of previous good character, then it could be argued to the contrary that the good character should sustain him and prevent from such behaviour.....He should have been her role model as to how a man should behave and conduct himself”. You are urged to take note of the comments of the court in that case. I have also taken note of the comments of Pallaras J in the case of Regina v Phoboro [2013] SBHC 8, in which he stated that in sexual assault cases, matters personal to the defendant are likely to have less impact on sentence.
11. I have also noted in your favour the time you have spent in pre-trial custody. I am informed that you were remanded in custody since the 9^th October 2018 and you have remained in custody since. You have therefore been remanded in custody for a period of 2 years 11 months and 1 day.
12. In the case of Pana v Regina [2013] SBCA 19, SICOA-CRAC 13 of 2013, the Court of Appeal put the starting point at 8 years if the victim is below the consenting age.
13. Taking into account the above case authority, and also noting that the offence that you have committed could be compared to the offence under section 139 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 I put your starting point at 3 years imprisonment for the aggravating features in your offending, I increase that sentence by 2 years. I have taken note of the comments of Pallaras J on the effect of sentencing in the Phoboro case and can conclude that there is no strong mitigating feature in your case. I hereby sentence you to 5 years imprisonment Time spent in pre-trial custody to be deducted from total sentence.

Orders of the court

1. The defendant is hereby sentenced to 5 years imprisonment for the offence of incest contrary to section 163 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Time spent in pre-trial custody is to be deducted from the total sentence.
3. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge