R v Gaugela [2022] SBHC 128; HCSI-CRC 371 of 2021 (14 October 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Gaugela
Citation:
Date of decision:	14 October 2022
Parties:	Rex v Tom Gaugela
Date of hearing:	13 October 2022
Court file number(s):	371 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant is sentenced to 2 years’ imprisonment. 2. The sentence imposed is suspended for a period of two years. 3. The Court confirms it has explained the provisions of section 45 of the Penal Code to the Defendant.
Representation:	Mr J Zoze for the Crown Mr G Male for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1)
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Pana v Regina [2013] SBCA 19, Penal Code S 44

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 371 of 2021

REX

V

TOM GUAGELA

Date of Hearing: 13 October 2022
Date of Decision: 14 October 2022

Mr J Zoze for the Crown
Mr G Male for the Defendant

Lawry; PJ

Sentence

Introduction

1. Tom Gaugela you have pleaded guilty one charges of having sexual intercourse with a child under the age of 15. That charge was brought pursuant to section 139(1) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. You now appear for sentence.

Facts

2. In September 2020 you were aged 19. At around 6:00pm on 9 September the victim who was aged 13 went to the wharf at Atori to get some food. It appeared that you had been drinking alcohol. You approached her and asked her to have sexual intercourse. You both went to the log pond where you had sex with her pushing your penis into her vagina. The two of you stayed together until about 9:00pm when her parents came looking for her.
3. There was evidence of sexual activity on her being medically examined.
4. You have paid compensation to her family, paying $2,720.00 and a pig worth $1,000.00. You have reconciled with prayer and shaking hands.

Personal Circumstances

5. You are single man who has not previously been convicted.

Aggravating factors

6. You were committed to the High Court on 3 May 2018. The prosecution at the committal hearing was from the Office of the Director of Public Prosecutions. An information was not filed in the High Court for more than a further 2 years, on 15 June 2020. The information had 4 charges however 3 of those charges contained significant errors. An amended information also containing 4 charges was filed on 26 October 2021. There was then discussion between prosecution and defence and the following day you entered guilty pleas to two of the charges and the two remaining charges were not proceeded with. I therefore treat the guilty plea as being entered as soon as possible after resolution of the issues.

Aggravating factors

7. Although you are 6 years older than the victim I do not regard the difference in your ages as an aggravating factor as you were both teenagers and both agreed to take part.
8. I note that she was only 13 at the time.

Mitigating factors

9. You have pleaded guilty at the earliest opportunity in this Court.
10. You have expressed remorse.
11. You have acknowledged you offending and been through reconciliation with the family of the victim including paying compensation in accordance with Malaitan custom.
12. You made admissions to the Police and I am told you have co-operated with the requires you have with the Police.
13. As set out in your personal circumstances you have no prior convictions. I 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.”
14. You were a young man only 19 years when you offended.

Deterrence

15. In imposing sentence, I must hold you accountable for the harm you have done. I must defer you and others from behaving in a similar manner. The children of our community are entitled to be protected from others preying on them for their own sexual gratification.

Starting point

16. The Court of Appeal in Pana v Regina [2013] SBCA 19 has made it clear that in cases then described as defilement the Courts are to recognise that a child under the age of consent, cannot consent. The Court said at paragraph 12:
    • “As the offence of defilement always and necessarily involves lack of consent, it is difficult to understand why the courts in this jurisdiction continue to pass sentences for defilement below, and often substantially below, the sentence they would pass if the charge had been rape.”

Then at paragraph (17) 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 factors. Its aggravating effect on the sentence will usually be greater the younger the child.”

17. Both counsel have referred me to a number of High Court decisions. I intend to take a lower starting point than set out in Pana as the charge you face has a lower maximum penalty than the charge faced in Pana. I take a starting point after considering aggravating factors of 5 years’ imprisonment. I deduct 20 months to reflect your guilty plea and remorse. I allow a further 12 months’ reduction for your own youth and to acknowledge the reconciliation and compensation that has taken place. I allow a further 4 months for the remaining mitigating factors and factors personal to you. That leaves a final sentence of 2 years’ imprisonment.
18. The final sentence is therefore 2 years’ imprisonment subject to the provisions of section 44 of the Penal Code.
19. As she was a willing participant and you were both teenagers, the sentence of 2 years imprisonment be suspended pursuant to section 44 of the Penal Code. The law recognizes that a child of 13 cannot consent to sexual intercourse. In the circumstances of your case I direct that the two year sentence be suspended for two years.
20. The Court is required to explain Section 45 of the Penal Code to you. If you commit an offence during the period your sentence is suspended, and if that offence is punishable by imprisonment, the Court sentencing you will also consider the case you are now facing and may order you to serve the sentence that has been suspended. The Court sentencing you could also replace the suspended part of the sentence with a shorter term of imprisonment or could extend the period of the suspended sentence. If you are to be sentenced in the Magistrates Court, the Magistrate will send you to the High Court for you to be sentenced on the Magistrate Court matter and to decide whether to order that your suspended sentence will be served in prison or whether part of it should be served in prison.

Orders of the Court

1. The Defendant is sentenced to 2 years’ imprisonment.
2. The sentence imposed is suspended for a period of two years.
3. The Court confirms it has explained the provisions of section 45 of the Penal Code to the Defendant.

By the Court
Hon. Justice Howard Lawry
Puisne Judge