R v Ilei [2022] SBHC 100; HCSI-CRC 679 of 2021 (29 September 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Ilei
Citation:
Date of decision:	29 September 2022
Parties:	Rex v Palm Sunday Ilei
Date of hearing:	28 September 2022
Court file number(s):	679 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):
On appeal from:
Order:	1. On count 1 the Accused is sentenced to a term of imprisonment for 9 years and 6 months. 2. On count 3 the Accused is sentenced to 2 years’ imprisonment. 3. On count 4 the Accused is sentenced to 3 years’ imprisonment. 4. On count 5 the Accused is sentenced to 10 years’ imprisonment. 5. On count 6 the Accused is sentenced to 11 years’ imprisonment. 6. The sentences for count 3 and count 4 are concurrent with each other but consecutive on the sentence for count 1. 7. The sentences for counts 5 and 6 are concurrent with each other but consecutive on the sentences for count 1, 3 and 4. 8. The total sentence of 23 years and 6 month’s imprisonment is reduced to 15 years and 6 months. 9. The time spent on remand in custody is to be taken into account. 10. The names and any identification of the victims of your offending and of PW1 are permanently suppressed
Representation:	Mr A Meioko for the Crown Mr H Max for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (sexual Offences) Act 2016 S 139 (1) (a), S 139 (2) (a)
Cases cited:	Regina v Hardie (Unreported, Criminal Case No 501 of 2020), Regina v Liva [2017] SBCA 20, Regina v Bonuga [2014] SBCA 22, R v Ligiau and Dori [ 1986] SBHC 15, Lavi v Director of Public Prosecutions [1987] SBHC 4, Alu v Reginam [2016] SBCA 8, Pana v Regina [2013] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 679 of 2021

REX

V

PALM SUNDAY ILEI

Date of Hearing: 28 September 2022
Date of Decision: 29 September 2022

Mr A Meioko for the Crown
Mr H Max for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Palm Sunday Ilei you have been found guilty of three counts of having sex with a child under the age of 15 years contrary to section 139 (1) (a) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016 [“the Act”]. You have also been found guilty of two counts of committing an indecent act on a child under the age of 15 years contrary to section 139 (2)(a) of the Act. You now appear for sentence.

Facts

2. In the early part of 2017 you were with your stepdaughter MV. She was two years old. You took a stick and poked it into her vagina causing her to bleed from her genitalia. She told your wife who became very depressed, suicidal and felt unable to bring your conduct to the attention of the police until 2021.
3. In July 2021 there were two occasions when you were with you daughter GP when she was 23 months old. You touched her genitalia underneath her clothing with your right hand while masturbating with your left hand. On both occasions your wife saw what you were doing and challenged you about it.
4. Also in July 2021 there were two occasions when your wife saw you with your youngest daughter ET. On each occasion you put your penis into the mouth of your daughter. That happened once under your house and once in the hammock in the house at night.

Personal Circumstances

5. You are married.
6. You have not previously appeared before the Courts.

Aggravating Factors

7. There are serious aggravating factors relied on by the prosecution. The first and most significant is the gross breach of trust. You are the father of two of the children and the step father of the other.
8. The second is the young age of your victims: MV was aged 2 years. GP was aged 23 months and ET just two months. The Crown has asked that I regard the disparity in your ages as an aggravating factor. I regard the age of your victims and your relationship with them as their father or father figure as adequately dealing with this issue.
9. The third aggravating factor is that there were three victims of your offending and in respect of two of them your offending was repeated.
10. The Crown also submitted that the location of your offending was at the family home where your children should have been safe from those who may try to prey on them.
11. The Crown submits that the use of the stick is an aggravating factor. I regard the use of the stick as being an element of the offending in count 1 rather than an aggravating factor.
12. The Crown also submits that I can find that there has been psychological harm to the victims. The Court of Appeal in Regina v Liva [2017] SBCA 20 confirmed what it had said in Regina v Bonuga [2014] SBCA 22:
    • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored.”

I do not know what the long term effects of your offending will be on children of such tender years. There is no doubt that they are likely to suffer severe or lasting harm.

Mitigating factors

13. There are no obvious mitigating factors of your offending. I have set out in your personal circumstances that you have no previous convictions.
14. However, you face sentence for five offences and your offending was against three children. I also record what this Court said in R v Ligiau and Dori [1986] SBHC 15:
    • “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.”
15. I record however that your counsel has conveyed to the Court your sorrow for your offending. That perhaps is a late acceptance of your offending and an expression of remorse.

Principles of Sentencing

16. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to your victims and to the community. You need to understand the harm you have caused. I must promote in you a sense of responsibility for and an acknowledgement of that harm. I need to denounce your conduct and deter you and others from such offending. I need to protect the community from you and others who may be minded to act as you have. I also need to provide for your reintegration into the community and for your rehabilitation.
17. I must bear in mind the gravity of your offending and the seriousness of this type of offending and the need for consistency in sentencing levels.

Consecutive/Concurrent sentences

18. When the Court imposes sentences for offending on more than one occasion the Court must consider whether sentences should be concurrent or consecutive. 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 then 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.”

19. 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. Your offending has been an attack on the rights of three different children. The sentences for counts 3 and 4 will therefore be concurrent with each other but consecutive on the sentence to be imposed for count 1. Similarly, the sentences for counts 5 and 6 will be concurrent with each other but consecutive on the sentence to be imposed on count 1 and on counts 3 and 4.

Starting point

20. Ligiau and Dori is also the case that set the tariff for sexual offending cases. The Court of Appeal has confirmed that the starting point for the rape of an adult victim following trial, where the case has no aggravating factors would be five years’ imprisonment. In Pana v Regina [2013] SBCA 19 the Court said:
    • “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.”
21. In Pana the Court of Appeal considered an appeal against sentence following a guilty plea for one count of defilement (the equivalent of section 139 (1) of the Act) and one count of indecent assault (the equivalent of section 139 (2) of the Act). The High Court had imposed 11 and a half years’ imprisonment for the first count and 2 years’ imprisonment for the second count, with the sentences to be served concurrently. The victim of the offending was a three year old child who was the niece of the accused. The offending in the first count involved penile penetration of the genitalia. An aggravating factor was that the child contracted a sexually transmitted disease.
22. The Court of Appeal indicated that the age of the victim warranted an increase from the 8 years starting point of a further 4 years and that the guilty plea entered on the second day of trial merited a reduction of six months’ imprisonment. The effect of the sentence was to have a final sentence of eleven and a half years’ imprisonment.
23. Your counsel has referred to the case of Regina v Kerovo [2021] SBHC 153. The accused in that case had been found guilty of having sexual intercourse with two girls, one aged 11 years and one aged 9 years. He was sentenced to a term of 11 and a half years’ imprisonment.
24. Counsel also referred to Regina v Zalatotu [2021] SBHC 152. In that case the accused was aged 68 and the child aged 8 years. The Court imposed eleven and a half years’ imprisonment after trial. Finally, counsel referred to Regina v Milamae [2020] SBHC 105 where the High Court imposed a sentence of 9 years’ imprisonment on a 21 year old who was found guilty of having sexual intercourse with a child aged 4 and one count of committing an indecent act on the same child.
25. Your offending is considerably more serious than any of those cases. The reason for this is that there are three victims of your offending. They were aged 2 years, 23 months and 2 months at the time of your offending. You are the father of two of them and the step father of the third. For count 1, I take a starting point of 8 years’ imprisonment. There needs to be an increase in that starting point to reflect the gross breach of trust and to reflect that the child was only 2 years old. I increase the starting point for count 1 to ten years’ imprisonment.
26. It is appropriate to deal with the offending against section 139(1) (a) before considering counts 3 and 4. In relation to count 5 and 6 I take a starting point of 8 years’ imprisonment. To offend in this manner against a child who was only 2 months old and who was your own daughter is a matter of considerable aggravation. So too is the fact that you repeated your offending. For count 5 the sentence cannot be any less than 10 years’ imprisonment. For count 6 there will be an increase of 12 months to reflect that the offending was repeated. The sentence for count 6 is therefore 11 years’ imprisonment.
27. Turning to counts 3 and 4 I recognise that the maximum penalty is 7 years’ imprisonment. The child was only 23 months of age and you as her father were in a position of trust and breached that trust not once but twice. Those are matters of considerable aggravation.
28. The Crown has referred to the decision of Regina v Hardie (Unreported, Criminal Case No 501 of 2020). That case concerned a single indecent act where the grandfather of a four year old girl pinched her genitalia causing pain. The offending occurred in the house where the child lived. The Court took a starting point of three years and six months’ imprisonment before considering mitigating factors. In your case there was no evidence that the child had suffered the sort of pain that brought the offending in Hardie to light. However, you as her father had touched her genitalia under her clothing when she was still not quite two years old. At the same time, you were masturbating. For count 3, I consider the starting point can be no less than 2 years’ imprisonment. Because the offending was repeated there will be an increase of a further 12 months. For count 4 the appropriate sentence is 3 years’ imprisonment. I make no reduction for your personal circumstances because although you had no previous conviction you had offended against MV and will receive credit in relation to that count.

Conclusion

29. On count 1, I take a starting point of 10 years’ imprisonment. I allow a reduction of 6 months to reflect that you have no previous convictions. The sentence for counts 3 is 2 years’ imprisonment which is consecutive on the sentence for count 1. The sentence for count 4 is 3 years’ imprisonment and is consecutive on count 1 but concurrent with the sentence for count 3. The sentence for count 5 is 10 years’ imprisonment and is consecutive on the sentences for counts 1, 3 and 4. The sentence for count 6 is 11 years’ imprisonment which is concurrent with the sentence for count 5 but consecutive on the sentences for counts 1, 3 and 4.
30. That makes a total sentence of 23 years and 6 months, imprisonment. I am required to consider the totality principal. In spite of the appalling sexual abuse on your children I must consider your rehabilitation and reintegration into the community. There should therefore be a reduction so that the sentence is not crushing. I consider that regarding the offending as a whole there should be a substantial reduction. I consider a reduction of 8 years’ imprisonment to be appropriate leaving a final sentence of 15 years and 6 months’ imprisonment.

Orders of the Court

1. On count 1 the Accused is sentenced to a term of imprisonment for 9 years and 6 months.
2. On count 3 the Accused is sentenced to 2 years’ imprisonment.
3. On count 4 the Accused is sentenced to 3 years’ imprisonment.
4. On count 5 the Accused is sentenced to 10 years’ imprisonment.
5. On count 6 the Accused is sentenced to 11 years’ imprisonment.
6. The sentences for count 3 and count 4 are concurrent with each other but consecutive on the sentence for count 1.
7. The sentences for counts 5 and 6 are concurrent with each other but consecutive on the sentences for count 1, 3 and 4.
8. The total sentence of 23 years and 6 month’s imprisonment is reduced to 15 years and 6 months.
9. The time spent on remand in custody is to be taken into account.
10. The names and any identification of the victims of your offending and of PW1 are permanently suppressed.

By the Court
Justice Howard Lawry PJ
Puisne Judge