R v Kuluabo [2021] SBHC 59; HCSI-CRC 08 of 2017 (20 July 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kuluabo
Citation:
Date of decision:	20 July 2021
Parties:	Regina v John Kuluabo
Date of hearing:	8 June 2021
Court file number(s):	08 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	The sentences in counts 1, 2, 3, 4 and 5 are be served concurrently. For the delay in the prosecution of this case, I hereby suspend 2 years sentence on count 4 for a period of 2 years. Right of appeal
Representation:	Mrs. Elma V. Rizu Hilly for the Crown Mr. Stanley Aupai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 141 (1) [cap 26], S244 [cap 26], Penal Code (Amendment) (Sexual Offences) Act 2016 139 (1) (9) [cap 26], Constitution 1978 S 10 (2) (b)
Cases cited:	Mulele v DPP [1986] SBCA 6, Regina v Tenu [2015] SBHC 85, R v Ligiau and Dori [1986] SBHC 15, Regina v Chris Mae, Criminal Case No. 289 of 2005, Regina v Rafita [2012] SBHC 150, Regina v Okisi [2008] SBHC 79, R v Pirineso [2019] SBHC 57, R v Belo [2021] SBHC 17, Regina v Taloikwai [2015] SBMC 1, Regina v Aubasi [2013] SBHC 1

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 8 of 2017

REGINA

V

JOHN KULUABO

Date of Hearing: 8 June 2021
Date of Decision: 20 July 2021

Mrs. Elma V Rizu Hilly for the Crown
Mr. Stanley Aupai for the Defendant

SENTENCE

Bird PJ:

1. The defendant, Mr. John Kuluabo was found guilty and convicted by this court on the 26^th May 2021 on three counts of indecent assault on females contrary to section 141 (1) of the Penal Code (cap 26), one count of having sexual intercourse with a child under 15 years contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 and one count of common assault contrary to section 244 of the Penal Code (cap 26).
2. Sentencing submission was adjourned more than once as both counsel were not ready to address the court. Eventually submissions were heard on the 8^th June 2021. For the offence of indecent assault on females, the maximum penalty is one of five years imprisonment. For the offence of having sexual intercourse with a child under 15 years, the maximum penalty is one of life imprisonment and for the offence of common assault is an imprisonment of one year.
3. In sentencing you, I am referred to the case of Mulele v DPP [1986] SBCA 6, [1985-1986] SILR 145 whereby the Court of Appeal had outlined certain guidelines that should be taken into account on sentence. Save that each case must turn to its own facts, there are four factors that must be considered. Those factors included disparity of age, abuse of position of trust, subsequent pregnancy and character of the girl herself.

Aggravating features

4. In your case, there are several aggravating features outlined. The first is the huge age disparity between you and the complainant. At the time of offending, you were 37 years old and the complainant was 13 years. The age disparity was 24 years.
5. I am also told that there was an abuse of position of trust involved in your case. You are married to the complainant’s aunty and the complainant had been living with your family as a family member for about two years prior. In court you stated that you treated the complainant as a family member. The complainant looks up to you as the father figure who is responsible to take care of and protect her. You have abused that trust placed upon you for your own sexual lust and gratification.
6. Another aggravating feature in your case is the young age of the complainant. From the evidence adduced in court the victim was only 13 years old when she was sexually abused by you. She was just a child, below the consenting age and as such she was vulnerable to abuse. In the case of R v Ligiau and Dori [1986] SBHC 15, (1985-1986) SILR 214, it was held that the age of the victim is a serious aggravating feature.
7. There was premeditation in the commission of the various offences that you are charged with. On four occasions, you made sure that no one was around when you abused the complainant. Your wife was not at home and your daughter was asleep in your family room. You also committed the offences at night time. From those facts, the court is of the view that there was premeditation in the commission of the offences.
8. It is further submitted by the crown that another aggravating feature in your case is the repetition of the offences. The offences contained in counts 1, 2 and 3 of the charges occurred on three separate occasions. Count 4 occurred about one year thereafter. As an adult person, you should have realised your fault after the first incident but you have continued to abuse the complainant on three other occasions thereafter.
9. The offences that you have committed occurred in your family home. A family home is supposed to be a safe haven for the children of the household. It is a place where children should be able to feel safe and secure but you have turned your home into a crime scene.
10. I have also heard that you have used threats and intimidation on the complainant. You told the complainant that she will be sent home if she tells anyone about what you did to her. You also told the complainant that she should be ashamed on behalf of her parents because you paid for her school fees.
11. It was also submitted by the crown that you have not shown any remorse for what you did to the complainant. On this point, I have read the submission of the defence and I can conclude that you have shown some degree of remorse in this case.
12. I have also noted and have taken into account the psychological and emotional trauma that the victim had encountered. That psychological and emotional trauma was evident on the morning of the 10^th June 2016 when the complainant went out of control and had a fight with you.

Mitigating features

13. On your behalf, it was submitted by Mr. Stanley Aupai of counsel that you are now 43 years old. You have three children and their ages range from 14 years to 4 years old. You were employed at ITA Hardware before you were remanded in custody.
14. I am informed that you have co-operated with the police during investigation. I am also informed that during the past four years when this matter was pending, you have shown a responsible attitude in complying with your bail conditions. I give you credit for your positive attitude towards this case.
15. You are a first offender with no previous convictions. I commend you for living a crime free life for the most part of your life until this offending. I urge you to learn from this mistake and do not reoffend in future.
16. I am told by your lawyer that you have a good prospect of rehabilitation. I have noted that you are a matured person of 43 years now. You were 37 years old at the time of offending. Four years have elapsed since you have committed the offences. I have heard that you have realised your fault and have tried to live a changed life since. You have not reoffended whilst waiting for this matter to be finalised by the courts. From these factors, I can see that you have a good prospect of rehabilitation. Believe in yourself and try and live a life of self-respect and dignity. If you respect yourself then other people will have respect for you.
17. It was also submitted on your behalf that you have genuine remorse. I am sceptical about the genuineness of your remorse. You have pleaded not guilty to all of the charges against you. A number of witnesses including the victim were called to give evidence against you. The victim was subject to strenuous cross-examination by your lawyer. Nonetheless, I have also noted that subsequent to your conviction, you were man enough to admit your guilty conscience. You have come to accept that what you did to the complainant will have a great impact on her and her family. That attitude in my view brings out a show of remorse.
18. Following from the above is whether there is a risk of your reoffending. I have noted that since the commission of the offences against you in 2015 and 2016 respectively, you have lived a good and respectable life with your family to this date. Having noted that, I do not think that you are a bad character. I have also noted your lawyer’s submission that it is out of your normal character when you committed the offences.
19. I am concerned about the delay in the prosecution of your case. The offences occurred in July 2015 and June 2016 respectively. You were committed to this court on the 15^th December 2016. The initial information against you was filed by the office of the DPP on the 4^th July 2017, some seven months after committal.
20. Section 10 (2) (b) of the Constitution talks about the right of an accused person who is charged with a criminal offence. That section provides:
    • Every person who is charged with a criminal offence shall be informed as soon as reasonably practicable, in detail and in a language that he understands, of the nature of the offence charged.
21. Having read the above provision, I do not think that a period of 7 months from committal to the laying of charges in this case can be said to be reasonably practicable as provided for under section 10 (2) (b) of the Constitution.
22. In the case of Regina v Chris Mae, Criminal Case No. 289 of 2005, the Court was on the view that a delay of seven months is unacceptable and a delay of fifteen months without trial is unconstitutional. In this particular case, you have been waiting for trial of the matter for more than three years. That is unacceptable delay.

Case authorities

23. For the offence of indecent assault on females, the case authorities cited by both counsel for the crown and the defence had sentencing ranges from 1 year imprisonment to five years imprisonment depending on the circumstances of each case. On the lower range was the case of Regina v Tenu. The defendant in that case was the grandfather. The victim was his 12 year old granddaughter. He was sentenced to 1 year imprisonment for the offence of indecent assault.
24. On the higher range is the case of Regina v Rafita [2012] SBHC 150, HCSI-CRC 63 of 2011. The defendant was sentenced to 5 years imprisonment for the offence of indecent assault on females.
25. In the case of R v Okisi [2008] SBHC 79, HCSI-CRC 72 of 2007, the defendant was convicted after trial on 5 counts of indecent assault. The court had imposed a sentence of 5 years on each of the charges to be served concurrently.
26. For the offence of having sexual intercourse with a child under 15 years, the sentencing on previous cases ranges from of 3 years to 9 years. On the lower range is the case of R v Pirineso [2019] SBHC 57, HCSI-CRC 109 of 2018. The defendant was a 72 year old grandfather. The victim was a 12 year old granddaughter. The court had imposed a sentence of 4 years imprisonment. The defendant was a very old man and walks with a walking stick.
27. In the higher range is the case of Regina v Belo, Criminal Case No. 608 of 2019. The defendant was a 71 year old grandfather. The victim was 10 years old. The defendant had a previous conviction on a sexual charge. He was sentenced to 9 years imprisonment.
28. For the offence of common assault, the sentencing tariff ranges from 3 months imprisonment to 2 years imprisonment. In the case of Regina v Taloikwai [2015] SBMC 1, the defendant was sentenced to 3 months imprisonment for common assault. The victim sustained minor injuries as a result of a closed fist punch on his right eye.
29. In the case of R v Aubasi [2013] SBHC 1, HCSI-CRC 76 of 2010, the defendant was sentenced to 6 months imprisonment for common assault. He was also charged for other offences.

Conclusion

30. There is no mathematical or scientific formula used in the sentencing of offenders by the court. Notwithstanding, in sentencing, the courts must have regard to previous cases of like nature and must also take into account the peculiar circumstances of each case.
31. In your case, I have noted the aggravating and mitigating features discussed above. I have also noted that this type of offending is very prevalent in our country. A clear message must be sent out to our communities that the courts do not condone and will not tolerate this type of offending. For count 1, I hereby sentence you to 2 years imprisonment. For count 2, you are also sentenced to 2 years imprisonment and for count 3, you are sentenced to 2 years imprisonment. The sentences on count1, 2 and 3 are to be served concurrently. For count 4, the defendant is sentenced to 4 years imprisonment and for count 5 the defendant is sentenced to 3 months imprisonment.

Orders of the Court

1. Count 1: The defendant is sentenced to 2 years imprisonment
2. Count 2: The defendant is sentenced to 2 years imprisonment
3. Count 3: The defendant is sentenced to 2 years imprisonment
4. Count 4:The defendant is sentenced to 4 years imprisonment
5. Count 5:The defendant is sentenced to 3 months imprisonment
6. The sentences in counts 1, 2, 3, 4 and 5 are be served concurrently.
7. For the delay in the prosecution of this case, I hereby suspend 2 years sentence on count 4 for a period of 2 years.
8. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge