R v Aumalefo [2021] SBHC 146; HCSI-CRC 454 of 2020 (5 November 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Aumalefo
Citation:
Date of decision:	5 November 2021
Parties:	Regina v Rockson Aumalefo
Date of hearing:	28 October 2021
Court file number(s):	454 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr. Rockson Aumalefo is hereby sentenced to 3 ½ years imprisonment for the offence of incest contrary to section 163 (2) (b) 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:	Mr. John Wesley Zoze for the Crown Mr Godfrey Male for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 s 163 (2) (b) [cap 26]
Cases cited:	R v Ligiau and Dori [1985-1986] SILR 214, R v- Billam [1986] 1 WLR 349

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 454 of 2020

REGINA

V

ROCKSON AUMALEFO

Date of Hearing: 28 October 2021
Date of Decision: 5 November 2021

Mr John Wesley Zoze for the Crown
Mr Godfrey Male for the Defendant

SENTENCE

Bird PJ:

1. On the 20^th September 2021, the defendant Mr. Rockson Aumalefo was found guilty after trial for the offence of incest. Under our laws, the maximum punishment for the offence of incest is one of life imprisonment.
2. The offence of incest is very serious because it intrudes into and destroys the very fabrics of the family circle. It is demeaning and brings much shame and embarrassment on the victims, and there can no longer be any trust within the family circle.
3. The circumstances in this case are that on an unknown date between the 24^th to 28^th February 2020 you and the victim went to the bush to get leaf for betelnut. Whilst in the bush, you had sexual intercourse with the victim by penetrating your penis into the victim’s anus. You are the victim’s father and the victim was then 6 years old.
4. It is submitted by Mr. Zoze of the crown that there are a number of aggravating features in this case. Firstly is the seriousness of the charge against you. What you did to your son was an incestuous act of the most serious kind. It amounts to a gross betrayal of the most sacred relationship between father and son. Your son will live with that stigma for the rest of his life. He has been sexually abused by his very own father. Moreover the victim was only 6 years old when the incident occurred.
5. It is further submitted by the crown that there is presence of abuse of position of trust in this case. You are the victim’s biological father. The victim is your last born son. As a son, you should be the person that your son could look up to for security, protection and guidance. You should have been a role model for your child. Instead you have turned around and sexually molested your very young and your very own child.
6. It is submitted by the crown that there is a huge age disparity between you and your son. At the time of offending, you were 45 years old and the victim was only 6 years old. The age difference between you was one of 39 years. As an adult person, you should have been in a position to rethink about your actions and to be able to take control of your actions and emotions. You could have exercise restraint but you have chosen to do what you did. That is a real disgrace for you as a father of the child.
7. That issue brings me to another aggravating feature being that your action had caused your child physical and emotional trauma. It was obvious on the outset that during the trial of this matter, the victim was physically afraid of you. Since the commission of the offence, your child had been placed in the safe custody of Sisters of the Church in a Care Centre. It is a very unfortunate and a very sad incident for the child and the court can sympathise with that young victim.
8. On your behalf, it was submitted by Mr. Male of counsel that you have no previous convictions and that you are a person of previous good character. You are a married man with 8 children. You are not employed but you have managed to support your family financially through marketing and other means. You are currently supporting your children with their education with the payment of their school fees. One of your children is currently studying at the University of the South Pacific and is self-sponsored by yourself.
9. It was further submitted by Mr. Male that there is no aggravating feature in your case. With respect, I must disagree with that submission. As discussed above, there are several aggravating features in your case. In the case of R v Ligiau & Dori [1985-1986] SILR 214, Ward CJ had set out guidelines in the sentencing of sexual offenders. It was stated in that case that in sentencing, the judicial officer must take into account four factors namely the age disparity, abuse of position of trust, subsequent pregnancy and the character of the girl herself. In your case, there is presence of a huge age gap and there is also abuse of position of trust. It is quite irresponsible and misleading for counsel to state in court that there are no aggravating features in your case when obviously there are. I would also like to remind counsel that the court had held in the case of R v Ligiau & Dori [1985-1986] SILR 214 that in sexual related cases, matters personal to the offender must have less impact on sentence than in most other serious cases.
10. In the Ligiau & Dori case, Ward CJ had applied the views of Lord Lane in R v Billam [1986] 1 WLR 349 that puts three starting point in sexual related cases. The three starting points are 5 years, 8 years and 15 years depending on the severity and the peculiar circumstances of each offending. Ward CJ put a starting point of 5 years in a rape case committed by an adult without any aggravating features.
11. In your case, you are convicted of one count of incest after trial. I have noted and taken into account that the victim did not sustained injuries. The offence of incest by males is not as prevalent in our communities. Nonetheless, the court has to punish you for that offence that you have committed against your very young son. I therefore put your starting point at 3 years imprisonment. For the aggravating features in your case, I will increase that sentence by 12 months. For the fact that your mitigating factors are mostly personal to yourself, I am of the view that those factors would have less impact on the sentence that the court shall impose against you. For that reason, I would merely reduce the sentence by 6 months. You are therefore sentenced to 3 ½ years imprisonment for the offence of incest.

Orders of the court

1. The defendant Mr. Rockson Aumalefo is hereby sentenced to 3 ½ years imprisonment for the offence of incest contrary to section 163 (2) (b) 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