R v Gwali [2021] SBHC 97; HCSI-CRC 175 of 2020 (11 August 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Gwali
Citation:
Date of decision:	11 August 2021
Parties:	Regina v Fred Gwali
Date of hearing:	4 August 2021
Court file number(s):	175 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer CJ
On appeal from:
Order:	1. Enter conviction for the offence of persistent sexual abuse of a child under 15 years contrary to section 142(2) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. Impose sentence of 6 years and 9 months. 3. Direct that the period spent in custody is to be deducted from the sentence.
Representation:	Mr S Tovosia for the Crown Mr. R. D. Pulekera for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offense) Act 2016 S 142 (2)
Cases cited:	Pana v. Regina [2013] SBCA 1, R v Ligiau [1985/1986] SILR 214

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 175 of 2020

REGINA

V

FRED GWALI

Date of Hearing: 4 August 2021
Date of Sentence: 11 August 2021

Mr. S Tovosia for the Crown
Mr. R D Pulekera for the Defendant

Palmer CJ.

1. You have been charged with a very serious offence, of persistent sexual abuse of a child under 15 years contrary to section 142 (2) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 ("the Amendment Act 2016"). This is a new offence enacted under the Amendment Act 2016 and carries a maximum penalty of life imprisonment.
2. Subsection 142(2) provides:
   • "A person commits an offence if the person engages in an act in relation to a particular child that constitutes a sexual offence on 3 or more separate occasions occurring on separate days during any period."
3. The maximum sentence of life imprisonment 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. Young girls often fall victim to the uncontrolled urges of men to satisfy themselves at the expense of the victim, their dignity, families and future. The consequences can be long lasting through ongoing shame, fear and insecurity.
4. The courts have continued to point out that those who commit this type of offences should expect to be sent to prison, but each case is to be treated separately on its merits and an appropriate sentence imposed. Sadly, this type of offence is becoming more prevalent and the courts have a duty to ensure there is sufficient general and specific deterrence in the community by the type of sentences that are imposed.
5. The starting point in this type of case without any aggravating or mitigating features, in a non-contested case is eight years^[1]. Where aggravating features exist, there should be an increase in the sentence of imprisonment to be imposed. I am satisfied taking into account the presence of aggravating feature in this case, there is basis for a higher starting point from 8 to 10 years.
6. I thank counsel for providing written submissions and case authorities for my consideration. I note the presence of the following aggravating features in this case.
7. First, the age of the victim at 12 years when the offending commenced. The law of the country considers sexual intercourse with a child below the age of 13 years an extremely serious offence, reflected by the maximum penalty of life imprisonment that can be imposed. That sets this type of case aside from other sexual offending and the courts have a duty to reflect this by imposing appropriate sentences which will send out a clear message of deterrence to the public. Any sexual offending involving a child below such age is not only an imprisonable offence but can attract a lengthy prison sentence, depending on the presence of aggravating and mitigating factors.
8. Her young and tender age is a very serious aggravating feature. The immediate adverse impact from such offending is that it not only robs the child of her innocence, but shows a total disregard to the safety, health and the well-being of such a small child. Every child has a right to be protected from such self-indulgent and abusive invasion of her personality and dignity.
9. The age disparity between the defendant and the victim is another aggravating feature in this case. The defendant was 49 years old and the victim 12 years when the offending commenced, a big age difference of 37 years. As an older person, there is an expectation of being mature and responsible in protecting such a young victim from this type of offence. This is a blatant disregard of that duty of care and responsibility towards the child.
10. The third and equally aggravating feature in this case is the blatant breach of the position of trust and authority towards the victim as a step-father. This places him naturally in a position of power and responsibility over the victim and owed a duty of care towards her. The victim is entitled to rely on him for her safety, security and wellbeing instead of being violently sexually abused in the home. All the offending occurred around the vicinity of the home, which was supposed to be a place of sanctuary and safety for the victim.
11. The fourth aggravating feature is the repetition in the offending. There were three instances of sexual abuse put together under this one offence. This offence focuses on the repeated nature of offending. They occurred over a period of time, starting when the victim was 12 years old in 2016 and continued over a period of five years. The third incident occurred on or about the 26^th October 2019. The repetition in offending over a long period of time is consistent with intentional, deliberate and contumelious behavior. Sadly its effect and impact would be long lasting and may take a long time for her to recover from. The facts showed that she had to bear the violence and abuse in the home for such a long period of time out of fear and trepidation.
12. Taking all those aggravating features into account I add another three years, bringing the total to 13 years.
13. On the other hand I note the following mitigating factors on his behalf. First that this was a guilty plea saving the court time and expense of a long drawn out trial as well as saving the victim the trauma of having to recount and re-live each incident by having to give evidence in a trial. As well I note this is consistent with remorse and being sorry for what has happened. I allow a discount of one quarter that is, 3 years and 3 months.
14. I also take into account the fact that he is a first offender, he has no previous convictions. I deduct one year for this.
15. I also note the submissions made on his behalf in relation to his personal circumstances that he is asthmatic, suffers from Type 2 Diabetes Mellitus. Medical reports in support of his medical condition have been provided, which I take note of.
16. As well, I note that his wife suffers from pulmonary tuberculosis and diabetes mellitus type 2 and is sick according to the medical report attached.
17. He has five children ranging in age from 20, 19, 17, 11 and the youngest being 5 years. He is the main bread winner and supports his wife and children especially the younger ones.
18. While these matters personal to the accused and his family are significant, it is well established that in cases such as this, personal matters may carry less impact than they might otherwise do^[2]. In any event I will deduct another year towards those personal factors.
19. Finally, I note that he has spent some time in pre-trial custody. According to the submissions from the Crown, he was remanded on or about the 8^th November 2019 and released on bail from 6^th April 2021, a period of some 1 year 8 months and 22 days. I give credit for this and direct that it is to be deducted from the sentence of imprisonment to be imposed. I give further credit and deduct another year for the period spent in custody.
20. From the total of 13 years, I deduct a total of 6 years and 3 months in mitigation, leaving a sentence of 6 years and 9 months to be served. The period spent in custody of 1 year, 8 months and 22 days in pre-trial custody is to be deducted from the sentence.

Orders of the Court:

1. Enter conviction for the offence of persistent sexual abuse of a child under 15 years contrary to section 142(2) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Impose sentence of 6 years and 9 months.
3. Direct that the period spent in custody is to be deducted from the sentence.

The Court.

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^[1] See Pana v. Regina [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013).
^[2] See comments of CJ Ward in R v Ligiau [1985/1986] SILR 214; Reiterated by Pallaras J. in [2013] SBHC 8, para. 13.