R v Kau [2021] SBHC 133; HCSI-CRC 511 of 2016 (3 November 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kau
Citation:
Date of decision:	3 November 2021
Parties:	Regina v Titus Kau
Date of hearing:	11 October 2021
Court file number(s):	511 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr. Titus Kau is convicted of 3 counts of rape contrary to section 136 and 137 of the Penal Code (cap 26). 2. The defendant is hereby sentenced to 13 years imprisonment. 3. I direct that the time spent in pre-trial custody be deducted from the total sentence. 4. Right of appeal
Representation:	Mr. Andrew E Kelesi for the Crown Mr. Allan Tinoni for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] S 136 and 137
Cases cited:	R v Ligiau & Dori (1985-1986) SILR 214, Mulele v DPP and Poini v DPP [1985-1986] SILR 145, Regina v Iroi [2004] SBHC 31, R v Su’umania [2005] SBCA 3, Regina v Liva [2017] SBCA 20

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 511 of 2016

REGINA

V

TITUS KAU

Date of Hearing: 11 October 2021
Date of Decision: 3 November 2021

Mr. Andrew E Kelesi for the Crown
Mr. Allan Tinoni for the Defendant

SENTENCE

Bird PJ:

1. By information filed on the 29^th November 2016, the defendant Mr. Titus Kau was indicted with six counts of rape contrary to section 136 and 137 of the Penal Code (cap 26). The defendant had initially pleaded not guilty to the charges.
2. On the 27^th August 2021, the DPP filed amended information whereby the defendant was charged with 3 counts of rape contrary to section 136 and 137 of the Penal Code (cap 26). The defendant was re-arraigned on the 10^th September 2021 on the amended information and he pleaded guilty to all charges. He was thereby convicted accordingly.
3. The offence of rape is very serious and carries a maximum penalty of life imprisonment. It is that serious because it intrudes into the privacy of the complainant without her consent.
4. The facts of your case as agreed to are the following:

The complainant in this case is your biological daughter. She was 14 years old at the time of incident and you were 42 years old. You are from Vanga Village, Santa Cruz and at the time of incident you were residing at Black Post, Tenaru, Guadalcanal Province.
On an unknown date between 1^st January 2016 to 30^th April 2016, the complainant was at home with your two children from her step-mother. At that time, her step-mother had gone to Honiara. Whilst in the house, she was startled when you went inside and removed her clothes. After removing her shirt, bra, trousers and underpants, you pushed her down on the floor. You also stopped her from making any noise and if she did, you would hurt her.
You proceeded to remove your trousers, laid on top of her, spread her legs and inserted your penis into her vagina. Whilst you were in the process of having sexual intercourse with the complainant, your wife arrived from town and you withdrew, wore your clothes and ran inside your room.
The second incident was on an unknown date between 1^st January 2016 to 30^th April 2016 when the complainant ran away from your house to her aunt’s house at GPPOL 1. You followed her and forced her to return with you. You followed a short cut in the bush and you wanted to pull her into the bush. She struggled and broke free and escaped. You caught up with her, removed her clothes, pushed her on the ground and had sexual intercourse with her.
The third incident happened at a place called the ‘office’. Early in the morning, the complainant went to urinate. You appeared from behind her and pulled her to the place called the office. When the complainant wanted to shout, you shut her mouth. You then pushed her on the grass, removed her clothes and you removed your clothes and had sexual intercourse with her. At the time, the complainant told you she was your daughter and she did not accept what you did to her. The matter was reported to the police and you were subsequently charged.

5. Before discussing the aggravating and mitigating features in your case, I would repeat the guidelines set out in the case of R v Ligiau & Dori [1985-1986] SILR 214 whereby Ward CJ outlined four factors that must be taken into account in the sentencing of like-offenders. Those factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
6. In your case, it was submitted by Mr. Kelesi of counsel for the crown that there is presence of a huge age disparity and a breach of position of trust. At the time of offending you were 42 years old and the complainant was 14 years old. The age disparity is one of 28 years. That is a huge age gap and there is absolutely no excuse for your commission of the offence of rape.
7. The complainant is your own daughter. Being the father of the complainant you are supposed to be the very person that she could look up to for her personal care, security and safety. You family and community also expect you to behave in that fashion. You have breached the trust placed upon you and you have sexually molested your very own daughter.
8. Another aggravating feature in your case is the repetition of the offence of rape on your very young daughter. From the agreed facts, you committed the offence of rape against your daughter on three separate occasions. You have used some force on the complainant on all three occasions. You have also threatened to cause her harm if she refuses. What you did to your own daughter is very demeaning to her. You have caused her shame and trauma. She told you after the third incident that she was your daughter and she did not accept what you did to her.
9. On your behalf, it was submitted by Mr. Tinoni of counsel that you have pleaded guilty to the offending. I give you credit for your guilty plea. Your guilty plea not only shows you are remorseful but that you have own up to your offending and you are willing to face the consequences of your action. Your guilty plea also save the court’s time and resources into conducting a trial in to your case. It also save the complainant further stress and trauma in having to come to court and give evidence in a contested trial.
10. I have noted that you have no previous conviction and that you are a person of previous good character. I am however minded that this court had previously held that matters personal to the accused will have less effect on sentence than in other serious cases. See the case Mulele v DPP and Poini v DPP [1985-1986] SILR 145.
11. It is submitted by Mr. Tinoni that you have been in pre-trial custody for a period of 5 years and 6 months. The date of offending was between 1^st January 2016 to 30^th April 2016. You were committed to this court on the 27^th October 2016. The initial information against you was filed by the office of the DPP on the 29^th November 2016. The matter has just been finalised by the court now. In your case, there has been a delay of more than 5 years. I must say that a delay of more than 5 years is unacceptable. That is undue delay and is a breach of the provisions of section 10 of the Constitution.
12. To assist the court in imposing the appropriate sentence in your case, I have been referred to in a number of cases previously dealt with by this court in like offences. In the case of R v Iroi [2004] SBHC HC-CRC 150 of 2003, the defendant was sentenced to 4 years imprisonment after having considered that the complainant suffered no physical injuries.
13. In the case of R v Su’umania [2005] SBCA 3, CA-CRAC 029 of 2004, the Court of Appeal upheld an imprisonment term of 5 years. In the case of R v Liva [2016] SICOA-CRAC 17 of 2017, the Court of Appeal increased the sentence of 3 years to one of 12 years imprisonment. In that case, there a breach of trust. The accused was the father of the complainant and the offence was repeated on two separate occasions.
14. Coming back to your case, I have noted that it is similar to the Liva case cited above. You are the father of the complainant. Your daughter was only 14 years old at the time of offending and you have robbed her of her innocence at that very young age. You have repeated the offence on 3 occasions. I therefore put your starting point at 12 years imprisonment. For the aggravating features in your case, I increase that sentence by 3 years. For your guilty plea and for the delay in the finalisation of your case, I reduce that sentence by 2 years. I therefore sentence you to 13 years imprisonment.

Orders of the court

1. The defendant Mr. Titus Kau is convicted of 3 counts of rape contrary to section 136 and 137 of the Penal Code (cap 26).
2. The defendant is hereby sentenced to 13 years imprisonment.
3. I direct that the time spent in pre-trial custody be deducted from the total sentence.
4. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge