R v Talo [2021] SBHC 168; HCSI-CRC 210 of 2020 (29 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Talo
Citation:
Date of decision:	29 October 2021
Parties:	Regina v Gina Galo
Date of hearing:	29 October 2021
Court file number(s):	210 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. On count 3 the Defendant is sentenced to 4 years’ imprisonment. 2. On count 4 the Defendant is sentenced to 3 years’ imprisonment. 3. The sentence on count 4 is concurrent with the sentence on count 4. The sentence commences on 29 October 2021 but in fixing your release date, the authorities are directed to take into account the time already spent on remand in custody.
Representation:	Mr N Tonowane for the Crown Mr J R Brook for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (a), S 5, S 139 (2) (a), Constitution S 10(1),
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Pana v Regina [2013] SBCA 19, Regina v Maewanusi [2010] SBHC 53, R v Firinao [2019] SBHC 104, Regina v Oge [2004] SBHC 72, Regina v Gwali [1999] SBHC 10, Kyoi v Reginam [2004] SBHC 90, Laui v Director of Public Prosecution [1987] SBHC 4, Alu v Reginam [2016] SBCA 8,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 210 of 2020

REGINA

V

GINA TALO

Date of Hearing: 29 October 2021
Date of Decision: 29 October 2021

Mr N Tonowane for the Crown
Mr J R Brook for the Defendant

SENTENCE

Introduction

1. Gina Talo you have pleaded guilty to two charges. The first is a charge 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. The maximum penalty for this charge is life imprisonment. The second is a charge of engaging in an indecent act with a child under the age of 15 years contrary to 139(2)(a) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. The maximum penalty for this offence is 7 years’ imprisonment. Both offences were committed in August 2016. You now appear for sentence.

Facts

2. You are the uncle of the victim. She was born on 3 November 2005. In November 2016 she turned 11. The offences for which you are for sentence occurred in August 2016. She was therefore only 10 at the time of your offending. The prosecutor incorrected submitted you were aged 11 at that time. One night in August 2016 when your victim was sleeping, you went to her bedroom and told her not to shout. You had sexual intercourse with her, putting your penis into her vagina. Later the same month you again entered her bedroom at night and rubbed your penis against her vagina.
3. You were remanded in custody on 20 September 2016 then granted bail on 30 November 2016. You have been on bail since then and complied with the requirements of bail in the almost 5 years since then. You indicated a guilty plea in the Magistrates’ Court and were committed to the High Court on 29 September 2017. The Crown did not file an information against you until 8 May 2020. That information contained 4 counts. Counts 1 and 2 have not been proceeded with by the Crown. You have pleaded guilty to counts 3 and 4 once they were corrected and in a state to which you could enter a plea. That occurred on 28 October 2021.

Aggravating factors

4. The prosecution has submitted that there are a number of aggravating features:
   1. They refer to the age of the victim. Her date of birth shows she was only 10 at the time you sexually abused her.
   2. The victim was a vulnerable person, sleeping in her own room when the offending happened.
   100. The offending was at night.
   4. You are her uncle and in a position of trust in relation to the victim. Her mother is your sister.
   5. You resided in the same home as the victim.
   6. There was an age disparity between you of 14 years.

Mitigating features

5. Your counsel submits the following as mitigating features:
   1. You entered a guilty plea both at the Magistrates’ Court and in the High Court once the information charging you was corrected.
   2. You have reconciled with the victim in accordance with custom as determined by chiefs at a formal meeting. That involved providing compensation of $500.00 and 1 Makira shell money.
   100. You have been of good conduct other than this offending both before and after this offending.
   4. There has been a long delay in this matter being dealt with by the Courts. There was more than 5 years from when you were arrested until your case has been able to be concluded.
   5. You are now married with a child and family responsibilities.
   6. You are said to be a good candidate for rehabilitation.
   7. You are remorseful.

Starting Point

6. The prosecutor has correctly submitted that there is a need for both general and specific deterrence, so that others are reminded of the need to protect the young in their care. You must be sentenced in a manner that deters you from acting as you have.
7. The prosecutor has correctly submitted that any allowance for mitigating factors personal to an offender in cases such as yours must not outweigh the seriousness of your offending. In R v Ligiau and Dori [1986] SBHC 15 the case that is referred to by both counsel as the case that sets the tariff for your offending, the Court 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.”

8. In Ligiau and Dori the Court set out the tariff as:
   • “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.”
   • The Court of Appeal has approved this in Pana v Regina [2013] SBCA 19 where the Court said at paragraph [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.”
9. I do not consider yours as an exceptional case meriting a starting point any less than as set out by the Court of Appeal. For Count 3, I therefore take a starting point of 8 years’ imprisonment. There must be an increase on that starting point to reflect the young age of the victim, the fact that she was sexually violated in her own home, at night, when she was sleeping, by her uncle who lived in the same house and breached the trust involved in that situation. There must be an increase of at least 2 years.

Guilty plea

10. In Pana the Court of Appeal spoke of the value of a guilty plea. The Court 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.”

Then at paragraph [26] the Court said:

• “The judge was correct to make some reduction for the plea of guilty. In many cases where sexual offences are involved, a plea of guilty can result in a very substantial reduction, sometimes as high as a third, of the total penalty.”

11. I accept that your guilty plea was entered at the earliest opportunity. You had also pleaded guilty in the Magistrates’ Court. I allow 3 years’ reduction for your guilty plea.

Delay

12. Once you were granted bail in November 2016 there is no record of you missing a hearing which you were required to attend although that has involved difficulty and expense. There was an unacceptable delay in filing an information against you and when it was filed it contained a number of significant errors. They were not corrected until 28 October this year. The original information was not filed until more than 2 years and 7 months had passed since you were committed to this Court. The earliest that there was an information to which you could plead was 28 October 2021, four years and one month after you were committed to this Court.
13. Your counsel has referred to Regina v Maewanusi [2010] SBHC 53. He offender pleaded guilty and there was a delay of 5 years in progressing the matter. The Court did not set out the amount of reduction for the guilty plea nor the delay however after making allowances for those factors imposed a final sentence of 4 and a half years’ imprisonment. In R v Firinao [2019] SBHC 104, the Chief Justice allowed a discount of 5 years for the delay of 10 years in bringing the case to a conclusion.
14. In Regina v Oge [2004] SBHC 72 the Court said:
    • “First is that the inordinate delay in prosecuting your case for 5 years is contrary to section 10(l) of the Constitution which demands that every person who is charged with a criminal offence must be fairly tried by a court of law within a reasonable time. The delay of 5 years by the Prosecution of your case is a point in your favour when considering the length of any custodial sentence I should impose on you.”
15. In Regina v Gwali [1999] SBHC 10 Kabui J said:
    • “In my view, this case calls for custodial sentence. However, long delay by the Prosecution to prosecute an offender in a court of law is a matter capable of reducing the length of a custodial sentence.”
16. In Kyoi v Reginam [2004] SBHC 90 the Chief Justice was dealing with a lengthy delay of 9 years after the Defendant was charged. His Lordship reviewed the authorities and reduced a sentence from 5 years to two years as a result.
17. Having carefully considered all the authorities concerned with delay I propose allowing a reduction of 2 and a half years from the term of imprisonment to be imposed.
18. For the remaining mitigating features I allow a further 6 months’ reduction.

Concurrent/Consecutive sentences

19. You have pleaded to a second offence that occurred on the same victim in similar circumstances as the first offence.
20. The authority regarding the sentencing for more than one offence is Laui v Director of Public Prosecutions [1987] SBHC 4. The Court said:
    • “When sentencing at the one time for two or more offences, the court will always need to consider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, the sentences should be concurrent. If not them consecutive sentences are appropriate subject to the overall total.
    • The test of a single transaction is not just a matter of time but whether the offences really form part of a single attack on some other person's right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously, would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time should properly be made concurrent.”

Later the Court said:

• “Where concurrent sentences have been passed because of the single transaction principle, the court must ensure that the gravity of the offence is properly represented by the sentence for the principal offence.”

21. Laui was approved by the Court of Appeal in Alu v Reginam [2016] SBCA 8. When confirming that concurrent sentences are appropriate for offences arising from a single transaction, the Court of Appeal also confirmed that the repetition of an offence on the same victim is a matter of considerable aggravation. I remind myself of the comments from the Court in Laui, that a series of assaults on the same person even though spread out over a lengthy period of time, should properly be concurrent.
22. The two sexual assaults for which you appear for sentence were on the same victim in the same month. In my view they should properly be regarded as part of the one transaction. I set a nominal sentence for count 4 of 3 years’ imprisonment. The sentence for Count 4 will be concurrent with the sentence for count 3.
23. Looking at the totality of the offending, the increased starting point and the length of time that has passed since the offending, I consider that the starting point of 10 years adequately reflects your offending. You are therefore sentenced to a total of 4 years’ imprisonment. The authorities are directed to take into account the time you have already spent on remand in custody.

Orders of the Court

1. On count 3 the Defendant is sentenced to 4 years’ imprisonment.
2. On count 4 the Defendant is sentenced to 3 years’ imprisonment.
3. The sentence on count 4 is concurrent with the sentence on count
4. The sentence commences on 29 October 2021 but in fixing your release date, the authorities are directed to take into account the time already spent on remand in custody.

By the Court
Justice Howard Lawry PJ