R v Hecky [2021] SBHC 67; HCSI-CRC 521 of 2019 (10 June 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Hecky
Citation:
Date of decision:	10 June 2021
Parties:	Regina v Sandlyn Hecky
Date of hearing:	31 May, 4, 7 and 8 June 2021
Court file number(s):	521 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. Count 1.The defendant is hereby convicted of one count of incest contrary to section 163 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The defendant is hereby sentenced to 3 years imprisonment. 3. Count 2.The defendant is hereby convicted of one count of incest contrary to section 163 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 4. The defendant is hereby sentenced to 3 years imprisonment 5. The sentences in respect of count 1 and count 2 are to be served concurrently. 6. The time spent in pre-trial custody is to be deducted from the total sentence. 7. Right of appeal.
Representation:	Mrs. Dalcy Belapitu Oligari for the Crown Mr. Lazarus Waroka for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S.163 (2) (a), S163 (2) (b)
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, R v Ningalo [2013] SBHC 44, R v Evanis [2018] SBHC 95, R v Gole [2013] SBHC 181,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 521 of 2019

REGINA

V

SANDLYN HECKY

Date of Hearing: 31 May, 4, 7 and 8 June 2021
Date of Decision: 10 June 2021

Mrs. Dalcy Belapitu Oligari for the Crown
Mr. Lazarus Waroka for the Defendant

Sentence

Bird PJ:

1. By indictment filed on the 8^th March 2021, the defendant Mr. Sandlyn Hecky was charged with two (2) counts of incest contrary to section 163 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned on the 1^st April 2021, the defendant had pleaded guilty to the charges. He was thereby convicted accordingly.
2. Before sentencing the defendant, it then became apparent to the court that the memorandum of agreed facts filed on the 6^th May 2021 do not correspond to the charges in the information. I then directed the Director of Prosecution to file a nolle prosequi in respect of the information filed on the 8^th March 2021 and also to file an amend information under the correct provision of the Penal Code (Amendment) (Sexual Offences) Act 2016.
3. The DPP filed a nolle on the 7^th June 2021 and the defendant was discharged therewith. The defendant was re-arraigned on the amended information on the 8^th June 2021 and he pleaded guilty to two counts 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. The defendant was thereby convicted as charged.
4. I must remind you that the offence of incest is viewed as very serious under our laws. For its seriousness, the maximum penalty prescribed under our laws is a sentence of life imprisonment. You must therefore understand from now on that the courts will not tolerate and do not condone such offending as these.
5. The facts of your case as the following:

You are from Hirolegu Village, Susubona Ward, Isabel Province. The complainant is from Kaemala via Hirolegu Village, Koviloko Ward, Isabel Province. The complainant was 17 years old at the time of the commissions of the offence and she is your biological daughter.
On an unknown date between the 1^st August to the 30^th August 2017, the victim was alone inside a room at their family house at Kaemala area via Hirolegu Village. She was alone in the house. Her mother had taken her siblings to visit their grandmother which was about 60 yards away from their house. She was lying down on a mattress when you walked into the room. You woke her up. You then forced her to remove her trousers and pants. She was afraid and removed her clothing. You grabbed her right knee using your left hand and you pulled your trousers down to your knees and spread her legs. You then pushed your penis into her vagina and had sexual intercourse with her.
The victim was not happy about what you did to her. She did not accept it. You told the victim not to tell anyone about the intercourse. The victim felt very sad about what had happened but was too embarrassed to tell anyone.
The second incident occurred on that 27^th March 2018 at about 6.00am whilst she was sleeping in a room in their family house at Hirolegu Village. She was also alone. Her mother and her siblings were attending church service that morning. The church is about 150m from their house. Whilst sleeping and faced up, she opened her eyes and saw you on top of her. You forced her to remove her trousers and the victim told you, and I quote “you no osem me pikinini blong you ya”. You continued to force the victim and she removed her clothes. You then spread her legs, pulled your pants down to your knees and pushed your erected penis into her vagina. The victim was ashamed and turned away from you whilst you were having sexual intercourse with her. After having sex with the victim, you wore your clothes and left the room. The victim was unsettled about what you did to her and the matter was reported to Buala Police and you were arrested. You were remanded in custody on the 31^st June 2019 under a Warrant of Arrest as a result of your failure to attend the Magistrates Court on the 13^th February 2019.

6. After having stated the facts of your case, I now turn to discuss the aggravating and mitigating features in your offending. In the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145, the court had set out four factors that should be considered by the courts in the sentencing offenders in sexual offences cases. Those factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
7. Having noted those factors, Mrs Belapitu Oligari of counsel for the crown had submitted that from the agreed facts in your case, there is a presence of several aggravating features in your case. The first aggravating feature in your case is the huge age disparity between you and the victim. At the time of offending, you were 36 years old and the victim was 17 years old. The age disparity between you and the victim was 19 years.
8. The second aggravating feature is the breach of trust involved. You are the father of the victim. Being the father, you have a moral and legal responsibility to provide care and security for the total wellbeing of the victim. Your home should be a safe haven for your daughter but you have turned your home into a crime scene. The trust place upon you by your family and the community at large is enormous and you have breached that trust.
9. I have also noted from the agreed facts that you waited for the perfect opportunity to commit the offending. You made sure that your wife who is also the mother of the victim was not at home when you sexually molested her. You should be ashamed of yourself to use your own daughter for your own satisfaction and gratification.
10. It is submitted by Mrs Oligari of the crown that you committed the offending on two separate occasions in other words there is a repetition of the offending on your daughter. The indicator being that you are currently charged with two counts of incest. I have also noted that on those two occasions, you have verbally forced your daughter to submit to your demands.
11. It is also evident from the agreed facts that the victim, being you daughter was very embarrassed and ashamed of what you did to her. A sober minded person like the victim would never accept what you did to her. What you did to her had caused her immense emotional and psychological trauma.
12. In trying to balance the circumstances of your case, I will discuss the mitigating features in your case. I am told by Mr. Waroka of counsel that you have pleaded guilty to the offending at first opportunity. I give you credit for your early guilty plea. Your guilty plea saves the courts time and resources in conducting a trial into your case. The guilty plea also shows remorse on your part and that you are willing to face the consequences of your action. You have also save your daughter further stress and trauma by coming to court and reciting her terrible experiences of the past.
13. I am told that you have no previous conviction. You are a first offender. I commend you for living a life free of crime until this particular offending. I have heard that you are remorseful and I sincerely hope that are truly sorry for what you did. Learn from your mistake and do not reoffend in future. Your daughter, the victim in this case, will always be your daughter and you must learn to have respect for her, other members of your family and all other females at large.
14. I am also told by your lawyer that there was reconciliation between yourself and your family pursuant to your offending. You apologised for your actions and you paid compensation of $10,000.00 cash, I pig and 10 baskets of potatoes. The payment of compensation shows that you are truly sorry for what you did to your daughter.
15. You have spent a considerable amount of time in remand in custody for your offending. I am told that you have been in remand in custody since the 21^st June 2019 to this date. I am asked to take into account the time you have spent in custody in sentencing you.
16. From the court records, you were committed to this court on the 2^nd August 2019. The information against you was not filed by the Director of Public Prosecution until the 8^th March 2021, a period of one year and seven month after your committal. That is unacceptable delay on the part of the prosecution. With such delay in the prosecution of criminal cases against accused persons, their rights under section 10 of the constitution are being breached. I therefore urge the office of the DPP to try and facilitate the filing of information in this court within two weeks from committal by the Magistrate Court. It will be good practise to be able to facilitate the filing of information within that time period.
17. In trying to impose an appropriate sentence in your case, I am referred to in a number of previous cases by both counsel for the prosecution and the defence. In the case of R v Ningalo [2013] SBHC 44, HCSI- CRC 78 of 2008, the defendant was sentenced to 4 years imprisonment for the offence of incest.
18. In the case of R v Harry Alick Evanis [2018] SBHC 95, HCSI- CRC 374 of 2017, the defendant was sentenced to 4 years imprisonment for rape and incest.
19. In the case of R v Gole [2013] SBHC 181, HCSI-CRC 339 of 2011, the defendant was sentenced to 4 years imprisonment for one count of incest.
20. In your case, you are charged with two counts of incest. You have pleaded guilty to the offending. You are remorseful for your actions. You are now 39 years old. I am hopeful that you have learnt from your mistake, and that will also help you to rehabilitate yourself to become a better father and husband to your family. I urge you not to reoffend in future.
21. From the above discussion, I put your starting point at five years imprisonment. For the mitigating features in your case, I reduce that sentence by two years. I therefore sentence you to 3 years imprisonment on count 1 and 3 years imprisonment on count two. The sentences are to be served concurrently.

Orders of the court.

1. Count 1.The defendant is hereby convicted of one count of incest contrary to section 163 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby sentenced to 3 years imprisonment.
3. Count 2.The defendant is hereby convicted of one count of incest contrary to section 163 (2) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
4. The defendant is hereby sentenced to 3 years imprisonment
5. The sentences in respect of count 1 and count 2 are to be served concurrently.
6. The time spent in pre-trial custody is to be deducted from the total sentence.
7. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge