R v Tavake [2022] SBHC 33; HCSI-CRC 568 of 2019 (27 May 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tavake
Citation:
Date of decision:	27 May 2022
Parties:	Regina v Basil Tavake
Date of hearing:	19 May 2022
Court file number(s):	568 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr. Basil Tavake is convicted of one count of persistent sexual abuse contrary to section 142 (2) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The defendant is sentenced to 5 years imprisonment. 3. I direct that the time spent in pre-trial custody be deducted from the sentence. 4. Right of appeal.
Representation:	Ms. Francisca Agilio Luza & Ms Amanda Mono for the Crown Mr. Rodney Sholton Manebosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 142 (2) Penal Code S 24 (2)
Cases cited:	Mulele v DPP and Poini v DPP [1985-1986] SILR 145, R v Phoboro [2013] SBHC 8, R v Ligiau & Dori [ 1985-1986] SILR 214

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 568 of 2019

REGINA

V

BASIL TAVAKE

Date of Hearing: 19 May 2022
Date of Decision: 27 May 2022

Ms. Francisca Agilio Luza & Ms Amanda Mono for the Crown
Mr. Rodney Sholton Manebosa for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr Basil Tavake was originally indicted with persistent sexual abuse on 5 separate occasions. Upon negotiations between the crown and the defence, an amended information was filed on the 21^st April 2022 in which the defendant was still charged with persistent sexual abuse contrary to section 142 (2) of the Penal Code (cap 260 as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The particulars were reduced from 5 to 3 occasions. When arraigned on the amended information on the 2^nd May 2022, the defendant had entered a guilty plea and he was convicted accordingly. He now appears before me for sentence.
2. The offence of persistent sexual abuse that you are charged with is very serious and carries a maximum sentence of life imprisonment. Nonetheless the courts are empowered under section 24 (2) of the Penal Code to shorter sentence than the one prescribed depending on the peculiar circumstances of each offending.
3. The facts of your case are that you are from Malepa Village, Reef Islands, Temotu Province. The victim is your biological daughter. She was born on the 18^th October 2004 at Lata Hospital, Temotu Province. You indecently assaulted the victim on three separate occasions. The first two occasions occurred on unknown dates between 1^st January 2017 to 31^st December 2018 at Suavanao Village, Isabel Province. On the two occasions, you entered the victim’s bedroom at night and touched her breasts and vagina. The third occasion occurred at around midnight on the 29^th May 2019 at Kingdom Harvest area, Henderson. The victim was sleeping in her bedroom. She woke up and felt someone on top of her and she saw it was you. At the material time, you were holding a black handle kitchen knife. She wanted to shout but you threatened to stab her if she did. You then proceeded to touch her breasts and vagina. The matter was reported to the police and you were arrested and charged.
4. To assist me in the imposition of an appropriate sentence against you I have to discuss the aggravating features and mitigating features in your case. The first consideration that I must take into account in this case are the features referred to by the court in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145. Those features included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself. In your case, it is submitted by the prosecution that there is a huge age disparity and there is also an abuse of position of trust. You were 37 and 38 years old during the various offending and the victim was 13 and 14 years old respectively. The age gap between you was 24 years which is very huge. The court views the huge age gap as a serious aggravating feature.
5. It is also submitted by the prosecution that there is a breach of trust in your offending. From the agreed facts, you are the victim’s biological father. As the father, you are obligated to provide care, protection, and security for your children. You are looked upon by your children, family and the community at large to act with responsibility and respect. Within the family circle, there are boundaries that are supposed not to be crossed so that respect is maintained. You have crossed that boundary and have indecently assaulted your very own daughter. You have breached the trust placed upon you and that will weigh heavily against you. You have turned the sanctity of your home to a crime scene.
6. It is also an aggravating feature in your case that you repeated the indecent assaults on your daughter on three separate occasions. If it was not enough that you indecently assaulted your daughter on the first occasion, you repeated the indecent act on her on two other occasions. You could have realised your wrongdoing after the first occasion but you never did. You exerted your authority on the victim for your own sexual lust and gratification. It will be shown to you in this sentence that the courts view the repetition of an offence as very serious. You took advantage of the victims young age and her vulnerability to further your sexual lust. You have also used force and threatened to stab the victim with a small kitchen knife. It is very disgraceful to be sexually molested by members of one’s own family. It causes enormous emotional and psychological stress and trauma on the victim.
7. On your behalf, it was submitted that you are now 41 years old. You are married with 5 children. Your wife is unemployed you were the sole breadwinner for the family before your incarceration. Your family are facing hardship and the two elder children are unable to continue with their education because of financial constraints. I have also perused the reference from Fr Reginald Toutohuniu and have also noted its content. Having noted all of your personal circumstances, I am also minded to take note of the views of the court in the cases of R v Phoboro [2013] SBHC 8 and R v Ligiau & Dori [1985-1986] SILR 214 which stated that in sexual offences cases, matters personal to an accused person are likely to have less impact on sentence that in other serious crime.
8. It is submitted that you have pleaded guilty to the offending at the earliest opportunity subsequent to the filing of the amended information. I give you credit for your early guilty plea. Your guilty plea not only shows remorse on your part but that you have owned up to your offending and you are willing to face the consequences of your action. Your guilty plea also saves the court’s time and resources into conducting a trial into the matter. I also save the victim further stress and trauma in having to come to court to give evidence in a contested trial. It is also noted that you have no previous conviction. You were remanded in custody for a period of 3 years.
9. I have been further assisted by counsel in providing me with case authorities for my consideration. The sentences that had been imposed by the courts in cases of this nature ranges from 2 years imprisonment to 6 years imprisonment. On the facts of your case as presented, I put your starting point at 4 years imprisonment. For the aggravating features discussed, I increase your sentence by two years. For the mitigating features, as especially your early guilty plea, I would reduce the sentence by 1 year. Total sentence imposed is one of 5 years imprisonment. Time spent in pre-trial custody to be deducted from total sentence.

Orders of the court

1. The defendant Mr. Basil Tavake is convicted of one count of persistent sexual abuse contrary to section 142 (2) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is sentenced to 5 years imprisonment.
3. I direct that the time spent in pre-trial custody be deducted from the sentence.
4. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge