R v Wate [2022] SBHC 55; HCSI-CRC 705 of 2021 (23 August 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Wate
Citation:
Date of decision:	23 August 2022
Parties:	Regina v Andrew Wate
Date of hearing:	9 August 2022
Court file number(s):	705 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1 The defendant Mr Andrew Wate is convicted of 2 counts of sexual intercourse- child under 15 contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 2 Count 1 -The defendant is sentenced to 3 years imprisonment 3 Count 2 -The defendant is sentenced to 4 years imprisonment 4 The sentence on count 2 is to be served concurrent to count 1 5 I direct that the time spent in pre-trial custody is to be deducted from the total sentence. 6 Right of appeal.
Representation:	Mrs. Dalcy B Oligari for the Crown Mr. Ron Dickey Pulekera for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (a) Penal Code S 24 (2)
Cases cited:	Mulele v DPP [1985-1986] SILR 145, R v Ligiau and Dori [1985-1986] SILR 214

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 705 of 2021

REGINA

V

ANDREW WATE

Date of Hearing: 9 August 2022
Date of Decision: 23 August 2022

Mrs. Dalcy B Oligari for the Crown
Mr. Ron Dickey Pulekera for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr Andrew Wate is charged with 2 counts of sexual intercourse - child under 15 contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned on the information on the 1^st July 2022, he pleaded guilty to the charges. He was thereby convicted and he now appears before me for sentence.
2. You are informed that the offence for which you are charged is very serious and carries a maximum sentence of life imprisonment. The courts are however empowered under section 24 (2) of the Penal Code (cap 26) to impose a shorter sentence than the one prescribed depending on the peculiar circumstances of each case.
3. I set out the facts in your case. You are from Eliote Village, South Malaita. You were 61 years old at the time of offending. The complainant was 12 years. She is the daughter of your nephew. At the time of the incident, you and the complainant lived in the same household at Mbokonavera 3, Honiara. On the 10^th July 2021, the complainant was sitting at the veranda of their house with her aunt, grandmother and father. You told the complainant to wash her clothes so she went into the room to get washing detergent. You followed the complainant into the room and locked the door behind you. You told the complainant to remove her clothes and because she was afraid of you, she did. She then lay down on the bed and you instructed her to part her legs. You removed your lavalava and lay down on top of the complainant. You pushed your penis inside her vagina and had sexual intercourse with her. You ejaculated inside her vagina.

On the 20^th July 2021, the complainant came home after school. She saw you and her aunt Priscilla in the house. She went and slept at the veranda of the house. You went and woke her up and whispered to her to follow you. The complainant asked why and you threatened to hurt her. The complainant followed you into the room and you locked the door behind her. You then lifted the complainant’s dress and pulled her trousers down and then undressed yourself. You laid the complainant down and partially penetrated her vagina with your penis. You were disturbed when the complainant’s aunt Priscilla kicked the door open and saw you naked and the complainant stood up. Priscilla saw you and the complainant in bed before she forced the door open. A report was made to the police on the same day and the complainant was referred to the National Referral Hospital for examination. Dr Pedigal Togamae confirmed that the complainant’s hymen was not intact.

4. Having stated the facts in your case, I will have to take into account and weigh the aggravating features to the mitigating features therein so as to be able to impose an appropriate sentence on you. It is submitted by the crown that the principles laid down by the court in the case of Mulele v DPP [1985-1986] SILR 145 should be observed by this court. In that case, the court had set out 4 factors that the courts must take into account in the sentencing of sexual offenders like yourself. Those factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself. It your case, it is submitted by Mrs Oligari for the crown that there is presence of age disparity and abuse of position of trust. At the time of the incident you were 61 years old and the complainant was 12 years old. The age disparity between you was one of 49 years. That is a very huge age difference and it will be weighed heavily on you. You are a granduncle to the complainant but you did not behave like one. I have perused the complainant’s impact statement and she stated that she had respect and trust for you. You have breached that trust placed upon you and have sexually molested her. As if that was not enough, you have also committed the offending in the very home that you resided with the complainant’s family. You have turned the complainant’s home into a crime scene. Further to what I have said is the fact that the complainant was only 12 years old when you sexually molested her. You robbed her of her innocence at a very young age.
5. It is further submitted by the crown that there is some form of premeditation in this offending. On the first incident, you tricked the complainant into going to her room and went behind her, locked the room and had sex with her inside the room. You had no regard and respect for the complainant’s father, grandmother and aunt who were also in the house when you sexually abused her. On the second occasion, the complainant’s aunt was also at home. It is further submitted that there was some form of force used on the complainant. You used threats on the complainant and she was overborne by those threats and followed your instructions. It is also a serious aggravating feature that you have repeated this offending on the complainant. You sexually molested the complainant both on the 10^th and 29^th July 2021. It will be shown to you in this sentence that repetition of the offence is a serious aggravating feature.
6. It is submitted that what you did to the complainant had caused her psychological and emotional trauma. In her impact statement, the complainant stated that subsequent to the offending, she was unable to concentrate at school. She does not want to go home to the village because you are of the same village. She is fearful, she might meet you or other members of your family. She is embarrassed and the stigma on her is great. She has also experienced continuous nightmares over the incidents.
7. On your behalf, it is submitted by Mr Pulekera of counsel that you have pleaded guilty to the offending at first opportunity. Your early guilty plea not only shows remorse on your part but that you have owned up to your offending and 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. It also save the complainant further stress and trauma in having to come to court to give evidence in a contested trial. I am also urged to note that you are 61 years old and a first offender without any criminal history. You are married with 9 children. Having noted these personal circumstances, I am also minded to note and take into account the comments of the court in the case of R v Ligiau & Dori in which Ward CJ stated inter alia that in sexual offences cases, matters personal to the accused person will have less impact on sentence than in other serious crime. I am further informed by counsel that you have paid compensation to the complainant’s family for your wrong doing. That aspect will be taken into account in this sentence but you must know that payment of compensation does not mean you can pay your way out from your criminal act.
8. I have also noted and taken into account the comparative cases cited by both counsel for the crown and you lawyer. I am greatly assisted through the principles used by the courts. I have also noted that the range of sentences imposed by the courts in similar cases as yours was an imprisonment term of 2 years (suspended) to one of 10 years imprisonment. In the particular circumstances of your cases, I shall impose sentences on you as follows:

Count 1 – I put your starting point at 4 years imprisonment. For the aggravating features in your case, I will increase your sentence by 12 months. For the mitigating features therein, I reduce sentence by 2 years. Total sentence to serve is one of 3 years imprisonment.

Count 2 – For the repetition of the offending, I put your starting point at 5 years imprisonment. For the aggravating features, I will increase sentence by 12 months. For the mitigating features, I will reduce your sentence by 2 years. Total sentence to serve is one of 4 years imprisonment.

I further order that the sentence on count 2 is to be served concurrent to count 1. I also direct that the time spent in pre-trial custody is to be deducted from the total sentence.

Orders of the court

1. The defendant Mr Andrew Wate is convicted of 2 counts of sexual intercourse- child under 15 contrary to section 139 (1) (a) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016
2. Count 1 -The defendant is sentenced to 3 years imprisonment
3. Count 2 -The defendant is sentenced to 4 years imprisonment
4. The sentence on count 2 is to be served concurrent to count 1
5. I direct that the time spent in pre-trial custody is to be deducted from the total sentence.
6. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge