R v Kiriau [2022] SBHC 122; HCSI-CRC 466 of 2020 (3 November 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kiriau
Citation:
Date of decision:	3 November 2022
Parties:	Rex v Linus Kiriau
Date of hearing:	1 November 2022
Court file number(s):	466 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant having been convicted on the charge of incest is sentenced to imprisonment for a term of ten years. 2. The sentence is deemed to have commenced on 3 March 2020. 3. The name of the victim and any identification of her is permanently suppressed.
Representation:	Mr J W Zoze for the Crown Mr D Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment)(Sexual Offences) Act 2016, S 163 (2), Penal Code S 136 D (2),
Cases cited:	Regina v Liva [2017] SBCA 20, R v Bonuga [2014] SBCA 22, R v Ligiau and Dori [2986] SBHC 15, R v Billam [1986] 1 WLR 349, Pana v Regina [2013] SBCA 19, R v Aumalefo [2021] SBHC 146

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 466 of 2020

REX

V

LINUS KIRIAU

Date of Hearing: 1 November 2022
Date of Decision: 3 November 2022

Mr J W Zoze for the Crown
Mr D Kwalai for the Defendant

SENTENCE

Introduction

1. Linus Kiriau, you have been found guilty of one count of incest contrary to section 163(2) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016. You are the father of the victim and she was only 10 years old at the time. You now appear for sentence.

Facts

2. In mid-2019 you were living in the village of Gou’ulu in North Malaita. Your wife had fled the family home because of your violence to her. You remained in the house with your son and younger daughter. On more than one occasion you locked your 10 year old daughter in the house. You forced her to strip naked. You threatened her with a knife, forced her to open her mouth and put your penis in her mouth. You told her that it was your wife’s fault.

Aggravating factors

3. There are a number of aggravating features. The first is the gross breach of trust. You are her parent and you violated her in her own home.
4. She was just 10 years’ old and was vulnerable having been left in your care by her mother.
5. You used a knife as a weapon to cause her fear.
6. The disparity in your ages is apparent from the fact that you are her father and she is your youngest child.
7. I have no doubt that your actions have caused lasting emotional trauma to her. The Court of Appeal in Regina v Liva [2017] SBCA 20 at paragraph [25] approved what they had said in said in R v Bonuga [2014] SBCA 22:
   • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider that 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.”
8. These comments from the Court of Appeal are consistent with recent studies that have shown that the victims of sexual violence tend to have a lower life expectancy than others in the community resulting from the mental and emotional trauma.
9. I must bear in mind that you have previous convictions for domestic violence and sexual violence.

Mitigating factors

10. Your counsel has brought to the Court’s attention that you have been remanded in custody since your arrest. That is not a mitigating factor but a matter that needs to be acknowledged in the sentence to be passed on you.
11. There appears to be nothing else either in relation to your offending nor in relation to your personal circumstances does that mitigate your sentence. You have chosen to act in a way that has forever damaged the relationships in your family.

Deterrence

12. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to your victim, to your family 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 remind you and others who may be minded to act as you have of the consequences of such offending.

Starting point

13. Counsel have referred to the decision of R v Ligiau and Dori [1986] SBHC 15, which sets the tariff for sexual offending. The Court adopted the words of Lord Lane CJ in R. v. Billam (1986) 1 WLR 349.
    • “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.
14. In law, your actions amount to sexual intercourse of your daughter when she was only 10. She could not consent. You clearly were a person in a position of trust.
15. The Court of Appeal has approved what was said in Ligiau and Dori. The comments in Pana v Regina [2013] SBCA 19 provide assistance in paragraph [17]:
    • “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.”
16. Section 136D(2) of the Penal Code provides a definition of sexual intercourse which includes at paragraph (c):
    • “(c) the introduction of any part of the penis of a person into the mouth of another person;”
17. In light of the comments from Pana I consider that your offending requires me to start with a term of eight years imprisonment. Your counsel has correctly asked the Court to consider the difference between your offending and the actions of some others who have come before the Court for sexual offending on children. There are however some factors of serious aggravation in your case. There is almost always a breach of trust when the charge brought is one of incest. You have acted in a most demeaning, threatening and controlling manner. You used a knife to achieve your purpose. Your child was only 10 years old.
18. I find that the aggravating factors require an increase to the eight year starting point suggested in Ligiau and Dori and in Pana.
19. Both counsel have referred to R v Aumalefo [2021] SBHC 146. A final sentence of three and a half years imprisonment was imposed. That also involved a charge of incest. That case had mitigating factors not present in your case. Although there were aggravating factors in that case it lacked some of the serious aggravating factors that have been referred to above.

Discussion

20. Having considered the comments in all three cases referred to above, I consider that the starting point of 8 years’ imprisonment needs to be increased to take account of the breach of trust, the use of the knife, the age of the victim and the harm you have inflicted on her. She will need to live with what you did to her for the rest of her life. In my view, the increase can be no less than a further 2 years imprisonment.
21. I find there are no mitigating factors to reduce that sentence. I have not increased the sentence to reflect your criminal history that involves both physical and sexual violence. I make that plain as in the trial there was reference to domestic violence but that was only as a background to the offending against your daughter. You have already been sentenced in respect of the previous offending. A consequence is that you cannot claim to have been of good character prior to this offending.
22. I have recorded that you have been in custody since 3 March 2020. Although part of that time you were a sentenced prisoner, that sentence was quashed on appeal. I therefore direct that the sentence imposed today commences on 3 March 2020. That way you receive full credit for the time you have been in custody.

Orders

1. The Defendant having been convicted on the charge of incest is sentenced to imprisonment for a term of ten years.
2. The sentence is deemed to have commenced on 3 March 2020.
3. The name of the victim and any identification of her is permanently suppressed.

By the Court
Hon. Justice Howard Lawry
Puisne Judge