R v Pangale [2021] SBHC 178; HCSI-CRC 675 of 2019 (5 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Pangale
Citation:
Date of decision:	5 October 2021
Parties:	Regina v Jack Laumama Pangale
Date of hearing:	10 September 2021
Court file number(s):	675 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1. Enter conviction on both counts of sexual intercourse with a child under 15 years contrary to section 139(1)(b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. Impose sentence of 5 years for count 1 and 6 years for count 2. 3. Direct that the sentence in count 1 to be served concurrent to count 2; the total sentence to be served is 6 years. 4. The period spent in custody is to be deducted from the sentence.
Representation:	Francisca Luza for the Claimant R.S Manebosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (b), S 163
Cases cited:	R v Billam [1963] 8 CR, Regina v Pana [2013] SBCA 19,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 675 of 2019

Regina

V

Jack Laumama Pangale

Date of Hearing: 10 September 2021
Date of Sentence: 5 October 2021

Ms Francisca Luza for the Crown
Mr R.S Manebosa for the Defendant

Palmer CJ.

1. You have been charged with two counts of the offence of sexual intercourse with a child under 15 years contrary to section 139(1)(b) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016 (“the Sexual Offences Act, 2016”). This provision covers offences committed with girls between the ages of 13 and 15 years of age and carries a maximum sentence of 15 years imprisonment.
2. Previously this type of offending is defined as defilement with a penalty of 5 years. This has since under the Sexual Offences Act, 2016 been increased to 15 years.
3. This increase reflects the level of seriousness and concern with which this type of offence is viewed in the community and the need to protect young girls from other men and themselves. This law seeks to protect young girls from the uncontrolled urges of men to satisfy themselves at the expense of the victim, her dignity, families and future. The consequences can be very devastating with ongoing shame, stigma, fear and insecurity.
4. It is of serious concern that this type of offence continues to increase. The courts have continued to send out a strong and clear message that those who engage in these type of offences should expect an immediate custodial sentence.
5. There are varying degrees of seriousness and the court is expected to treat each case separately on its merits and to impose appropriate sentences.
6. The facts of the case reveal that the defendant is the biological father of the victim. It is not disputed that at the time of the commission of the offences, he knew that she was his daughter. Although he has not been charged with incest under section 163 of the Sexual Offences Act, 2016 that is an aggravating feature in this case.
7. In Pana v. Regina^[1], the Court of Appeal observed the “alarming level of sexual violence”^[2] in Solomon Islands and the need for the court to consider increases in penalties. For rape cases, the guidelines set out in the case of R. v. Billam^[3] and described as the “Billam Guidelines” fixed three starting points of five, eight and fifteen years. It noted that where the victim is a child below the age of consent, the starting point should be eight years.
8. I am satisfied the starting point in this case without any aggravating or mitigating features and a guilty plea entered, should be five years^[4]. Where aggravating features exist, as in this case, there should be a corresponding increase in the sentence of imprisonment to be imposed.
9. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the following aggravating feature in this case.
10. First is the very young age of the victim at 14 years, which the law recognizes is below the age of consent. This places her at a very young and vulnerable age at the time of commission of the offence. Her young age is a serious aggravating feature, with her childhood and innocence being robbed by such violent sexual behaviour. Her young age was taken advantage of by the defendant. Any form of sexual intercourse of a young child carries the serious connotation of violence.
11. The second aggravating feature is the disparity in age. There is a wide age difference between the defendant and the victim of 19 years. At the time of commission of offence, the defendant was 33 years old and the victim 14 years old. As an older person, raises an expectation of being responsible and accountable in protecting young girls from this type of offence. She will live with this abuse for a very long time.
12. The third aggravating feature is the blatant breach of trust and accountability the defendant held towards the victim as her biological father. He held an indisputable position of power, authority and trust, and a duty of care towards the victim. The victim in turn was entitled to rely on him for her safety, protection, wellbeing, love and affection. The home which was supposed to be a place of safety and sanctuary sadly had turned into a crime scene.
13. The fourth aggravating feature is the repetition in offending and demonstrates intentional and deliberate offending. The victim was sexually assaulted on two occasions.
14. Fifthly and sadly the victim was impregnated and gave birth to a child of the defendant, a social stigma that she and family members will have to live with.
15. Taking all those aggravating factors into account, the sentence is increased to 9 years.
16. In mitigation, I give credit for a guilty plea, saving court time, expense and the victim from having to give evidence and re-live the trauma in court. This is also consistent with remorse, a willingness to accept the error of his ways and the negative and traumatic consequences of his action on his family and others. I deduct 2 years from that.
17. I note the defendant has no previous convictions, this is his first time in court. Credit is given for that.
18. I also note that there has been delay in this case in the filing of an information and a further 12 months is deducted.
19. I am satisfied the period spent in custody is to be deducted from the total sentence to be served. The resulting sentence taking all aggravating and mitigating factors into account is 6 years.
20. I am also satisfied the two counts should be made to run concurrent to each other, taking into account the totality principle in this case and ensuring that what is imposed is the appropriate sentence in the circumstances. Even though the offences are separate, I am satisfied making them consecutive would result in an excessive sentence and a crushing penalty to be imposed, noting the maximum penalty for the offence at 15 years’ imprisonment, and the mitigating features of the case.

Orders of the Court:

1. Enter conviction on both counts of sexual intercourse with a child under 15 years contrary to section 139(1)(b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Impose sentence of 5 years for count 1 and 6 years for count 2.
3. Direct that the sentence in count 1 to be served concurrent to count 2; the total sentence to be served is 6 years.
4. The period spent in custody is to be deducted from the sentence.

The Court.

---

^[1] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
^[2] 2^nd Interim Report – Sexual Offences, of the Solomon Islands Law Reform Commission Review of the Penal Code and Criminal Procedure Code, published in June 2013 at page 39, paragraph 2.3.
^[3] R. v. Billam (1963) 8 CR. App. R. (S) 48
^[4] See Pana v. Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013).