R v Sade [2021] SBHC 134; HCSI-CRC 519 of 2021 (5 November 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sade
Citation:
Date of decision:	5 November 2021
Parties:	Regina v Frank Korai Sade
Date of hearing:	3 November 2021
Court file number(s):	519 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant is sentenced to 4 years’ imprisonment. 2. Any time the Defendant has spent on remand on this matter is to be taken into account in calculating the Defendant’s release date. 3. The name of the victim is suppressed and may not be published.
Representation:	Ms A Naqu for the Crown Mr R D Pulekera for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S(Amendment) (Sexual Offenses) Act 2016 S 139 (1) (a), S 139 (1) (b)
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Regina v Liva [2017] SBCA 20, R v Bonuga [2014] SBCA 22, Soni v Reginam [2013] SBCA 6, R v Fiuga [2019] SBHC 75, Regina v Baddley Balekwai [2020] SBHC 84, R v Kaneta [2019] SBHC 52, R v Topo [2018] SBHC 99, R v Noforangakeri [2021] SBHC 57, R v Bui [2021] SBHC 12, R v Mindu [2021] SBHC 1, Qoloni v Regina[2005] SBHC 73, Gerea v Regina [2005] SBHC 34, Talifai v Regina [2011] SBHC 16;Pana v Reginam [2013] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 519 of 2021

REGINA

V

FRANK KORAI SADE

Date of Hearing: 3 November 2021
Date of Decision: 5 November 2021

Ms A Naqu for the Crown
Mr R D Pulekera for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Frank Korai you have pleaded guilty to one count of having sexual intercourse with a child under the age of 15 contrary to section 139(1)(a) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. As the complainant was aged only 12, the maximum penalty is life imprisonment. You now appear for sentence.

Facts

2. You are aged 20 years. One day in April 2021 you were at Labourline area, Yandina Station in Central Province. You saw the complainant riding her bicycle with 3 of her friends. She lives in a house close to yours. You called her and called her. She came over to you. You took her inside your house and into your bedroom. You had sexual intercourse with her. It caused her pain. When her parents found out they reported the matter to the Police.

Aggravating features

3. The Crown has identified several aggravating features as follows:
   1. The age of the complainant. She was only 12.
   2. The age disparity between you and the complainant.

Mitigating features

4. Your counsel submits the following as mitigating features:
   1. You have pleaded guilty at the earliest opportunity.
   2. You have no previous convictions and are of good character.
   100. You are described as remorseful.
   4. Through your family you have reconciled with the family of the complainant and in a customary ceremony held at the Yandina Police Station, your family gave compensation of $5,000.00 cash and 3 tafulia’e shell money as an acknowledgement for what you did.
   5. You are said to have good prospects for rehabilitation. Your counsel has advised that you are a student at SINU enrolled for a Diploma in Teaching.

Sentencing principles

5. The Crown has correctly submitted that the Court considers the need for deterrence for both you and for others in the community who may also fail to respect women and girls in particular for their own sexual gratification. You knew the complainant to be a young neighbor yet you, as an adult, sexually abused her. You case sis quite different from one referred to by counsel where a complainant had persistently pursued a young man for her own sexual gratification.
6. The prosecution also asks the Court to address the need for punishment to show the community’s abhorrence of your offending. The prosecution and your counsel also asks the Court to consider your prospects for rehabilitation. It is a concern that someone who wishes to continue training to be a teacher would prey on a 12 year old child. It is difficult to see you as an appropriate person for such a career in light of your offending.

Starting point

7. The Court of Appeal has confirmed R v Ligiau and Dori [1986] SBHC 15 as the appropriate tariff case. In Ligiau and Dori the Court said:
   • “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.”
8. The prosecution has referred the Court to the Court of Appeal decision Regina v Liva [2017] SBCA 20 where at paragraph [25] the Court approved what they had said in said in R v Bonuga [2014] SBCA 22:
   • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider that judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored.”
9. The Court of Appeal in Soni v Reginam [2013] SBCA 6 approved the starting points set out in Ligiau and Dori. In Pana v Reginam [2013] SBCA 19 the Court of Appeal was dealing with the rape of a young girl. They said at paragraph [17]:
   • “[17] ...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.”
10. The prosecution referred the Court to several decisions that have followed Pana. The prosecution referred to R v Fiuga [2019] SBHC 75. The offender was also charged under section 139 (1) (a) of the Penal Code. The complainant was aged 8 and the offender was aged 22. There were more serious matters of aggravation but there was a guilty plea, compensation and a lack of other offending. The Court after balancing the aggravating and mitigating features ended up with a sentence of 9 years’ imprisonment. An order was made suspending 2 years of that sentence for the purposes of rehabilitation.
11. In Regina v Baddley Balekwai [2020] SBHC 84 the offender was also charged under the same section. He was a mature man of 53 and the victim was aged 8. A final sentence of 8 years was imposed following a guilty plea and other matters in mitigation.
12. In R v Kaneta [2019] SBHC 52 the offender pleaded guilty to a charge under section 139(1) (a) and also to committing an indecent act. The victim was only 7 and the offender was drunk. He had not previously offended. He was sentenced to 6 years for the charge under section 139 (1) (a).
13. In R v Topo [2018] SBHC 99, a 22 year old offender pleaded guilty to a charge under the same section. The victim was aged 11. There was a breach of trust and no previous offending. The sentence was 6 years’ imprisonment. The prosecution referred to two other cases but they do not add anything to the cases set out above. I record that each of the cases referred to by the prosecution had elements of aggravation more serious than in your case.
14. Your counsel has referred the court to R v Noforangakeri [2021] SBHC 57 however, that involved a less serious charge. The offender was aged 21 and the victim 13. There was a breach of trust and a guilty plea. The Court sentenced the offender to 3 years’ imprisonment. Other orders were also made.
15. Similarly, in R v Bui [2021] SBHC 12 the offender was charged under a less serious section. He was aged 25 and the victim aged 13. 3 years’ imprisonment was imposed on each of two charges.
16. Finally, your counsel referred to R v Mindu [2021] SBHC 1. Mindu involved very different circumstances. This was the case where the complainant continued to pursue the offender in spite of being directed to go elsewhere. She refused to go to her brother and was the person who instigated the sexual activity.
17. Discussion
18. In Pana the Court of Appeal gave clear guidance on the starting point. The Court also gave guidance on the appropriate reductions to be made for early guilty pleas. You face sentence for your offending against section 139(1) (a). Your case must be treated quite differently from cases under section 139(1)(b) where an offender engages in sexual intercourse with a young girl of a similar age who although under the age of consent is a very willing party to the sexual activity.
19. There are no exceptional circumstances which would require me to consider a lower starting point than as set out in Pana. I take a starting point of 8 years’ imprisonment. The complainant was still three years under the age of consent. I therefore add 6 months to reflect her young age.

Guilty plea

20. The Court of Appeal in Soni, reviewed the authorities regarding discounts available to reflect the significance of a guilty. At paragraph [16] the Court said:
    • “16 All the cases referred to above make particular mention that the effect a guilty plea should have on theencing deng decision. In each case emphasis has been put on the particular effect on the victim of having to give evidence at trial and the importance, where appropriate, of a reduction in the length of custodial sentence available from an early indication of a guilty plea. The starting soints set out above assume a contested trial. In addition to sparing the victim the ordeal of giving evidence at the trial and possibly reliving the experience, a guilty plea also dtrates tha offender ader aper appreciates how wrong his conduct was and regrets it.
    • It is principally for these two reasons that the sentencing judge sdge shouldhould consider an appropriate discount to the applicable sentence arrived at following the guidelines. Previous discussions as to the available discount for a guilty plea can be found in Qoloni v Regina [2005] SBHC 73; HCSI-CRC 076 of 2005 (21 June 2005),Gerea v Regina [2005] SBHC 34; HCSI-CRAC 243 of 2004 (4 February 2005) and Talifai v Regina [2011] SBHC 16; HCSI-CRC 85 of 2010 (30 March 2011). It is worth noting that the reference to a maximum discount of 25% referred to from Australian authorities refers only to the utilitarian value of a guilty plea,eas the Englishglish authorities on the same point, particularly in dealing with sexual offences, stress the value of a guilea&#o the victim. A maxA maximum discount of one third may well be considered appropriate iate in some circumstances.”
    • In Pana v Reginam [2013] SBCA 19 the Court of Appeal said at paragraph [22]:
      • “The most important mitigating effect of a plea of guilty in a sexual offence and in any case involving a young child is that it saves the complainant from the distress of having to relive the trauma from the witness box. It is also frequently accepted as a sign of remorse and realisation of the wrong the accused has done. Finally and too a much lesser extent ... is the pragmatic fact that it saves the court time and expense.”
    • You pleaded guilty at the earliest opportunity. I give you the maximum possible discount for your plea. I deduct 2 years and 6 months for the guilty plea.
    • I turn to matters personal to you. I regard you as still a young offender although you were aged 20 at the time of your offending. You have no other previous convictions and I accept that you are otherwise of good character. You are remorseful and your family has assisted you in reconciliation and compensation in accordance with custom. You have started your tertiary education. You have expressed the wish to continue that education. You are engaged and are soon to be a father.
    • However, the Court in Ligiau and Dori said: “In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.” The prosecution submits that limited credit should be given for mitigating factor personal to you. I must balance the need to provide a deterrent sentence for you and to send a message to the community that those who prey on young women for their own selfish sexual gratification can expect to lose their freedom. Having said that I consider that continuing your education as soon as possible will provide the best prospects for your rehabilitation. Your offending is too serious for a court to impose a suspended sentence as submitted by your counsel. It would not meet the need for deterrence and in any event sentences above two years, imprisonment cannot be suspended pursuant to section 44 of the Penal Code.
    • Notwithstanding what has been set out in paragraph 11 above I propose giving you credit for your youth and your previous good character. I make a reduction of one year for those factors. For your remorse, for the compensation paid and the remaining matters in mitigation I make a further reduction. I am aware that you will not be able to be present for the birth of your child. That is a consequence of your offending. It does mean though that your sentence will be more difficult for you than it is for some others. I will therefore make a further reduction of 1 year for all other matters in mitigation. You are sentenced to a total of four years’ imprisonment. Neither counsel has addressed me on any time you may have been in custody. It appears you have been on bail throughout the time you have been attending Court. If you have been in custody on this matter, then that time in custody is to be taken into account by the authorities in fixing your release date.

Order of the Court

1. The Defendant is sentenced to 4 years’ imprisonment.
2. Any time the Defendant has spent on remand on this matter is to be taken into account in calculating the Defendant’s release date.
3. The name of the victim is suppressed and may not be published.

By the Court
Justice Howard Lawry
Puisne Judge