R v Fred [2022] SBHC 56; HCSI-CRC 632 of 2021 (9 September 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Lency Fred
Citation:
Date of decision:	9 September 2022
Parties:	Rex v Lency Fred
Date of hearing:	8 September 2022
Court file number(s):	632 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is convicted of 3 counts of incest contrary to section 163 (2) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. Count 1: You are sentence to 3 and 6 months years imprisonment 3. Count 2: You are sentence to 3 years and 10 months imprisonment 4. Count 4: You are sentence to 4 years imprisonment 5. Sentences in counts 1, 2, and 4 to be served concurrently 6. Right of appeal
Representation:	Mr Jonathan Lui Auga for the Crown Mr Andrew Bosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 163 (2) (b) [cap 26] Penal Code S 24 (2) [cap 26]
Cases cited:	Mulele v DPP [1985-1986] SILR 415, R v Ligiau and Dori [1985-1986] SILR 214

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 632 of 2021

REX

V

LENCY FRED

Date of Hearing: 8 September 2022
Date of Decision: 9September 2022

Mr Jonathan Lui Auga for the Crown
Mr Andrew Bosa for the Defendant

SENTENCE

Bird PJ:

1. The defendant Mr Lency Fred was originally charged with 4 counts of incest contrary to section 163 (2) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (sexual Offences) Act 2016. Upon negotiation by the parties a nollie prosequi was filed in respect of count 3 and only counts 1, 2, and 4 were proceeded with. Upon being arraigned on the amended information, the defendant had pleaded guilty to all charges. He now appears before me for sentence.
2. The offence of incest is serious and carries a maximum of sentence of 10 years imprisonment. Notwithstanding the maximum penalty, the courts are empressed under s.24 (2) of the Penal Code (cap 26) to impose a shorter sentence than the one prescribed.
3. The facts of your case are the following – You are the victim’s biological brother. The victim was born in 2003 and she was 14 years old at the time of incident.

On the 25^th December 2017, you asked to have sex with the victim and she refused. You threatened her with a kitchen knife, grabbed her and pulled her inside the girls room. You removed her clothes and laid her on the bed. You also removed your clothes, parted the victim’s legs and penetrated her vagina with your penis. You threatened her not to tell anyone about the accident. It was her first time to have sex and her vagina was bleeding and painful.

On the 15^th August 2020, the victim was alone in the family home. You asked to have sex with the victim again. When the victim refused, you threatened her with a kitchen knife. She was afraid and removed her clothes as instructed. You then had sexual intercourse with her.

The last incident occurred on the 18^th April 2021 also at your family home. You asked to have sex with the victim. When she refused, you pulled her into the girl’s room and had sexual intercourse with her. The victim managed to report the matter to the police and you were arrested and charged.

4. In order for me to impose an appropriate sentence in your case, I am required to discuss the aggravating features and balance them with the mitigation features. It is submitted by Mr Auga for the crown that there are a number of aggravating features in your offending. The court has also noted and discuss the principles set out in the case of Mulele v DPP [1985 – 1986] SILR 145, whereby the courts are entitled to take into account four factors in the sentencing of sexual offenders like yourself. These factors included age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.
5. It is submitted by Mr Auga of counsel that there is presence of age disparity and abuse of position of trust in your case. I am told that you were between 26 and 29 years old at the time of incident and the victim was between 14 to 18 years old. The age disparity between you is one of 12 years. That is a huge age difference and it will weigh heavily on you. The court has also noted that you are the victim’s elder brother. As an elder brother, you are expected to treat your sister with respect and dignity. Instead you have turned around and have sexually molested your very own sister. Coupled with that fact is that you have sexually molested your very own sister in your family home. A home is a place where one should be able to feel safe and secure but you have turned your home into a crime scene.
6. I have also noted from the agreed facts that your actions were premediated. The repetition of your offending on more than one occasion is also a serious aggravating feature and it will be shown to you in this sentence that the court do not condone and will not tolerate this type of offending and its repetition.
7. The victim in this case is your younger sister. It is a disgrace for the victim and yourself to be involved in such a relationship which is not only wrong in law but also forbidden in custom. What you did to your younger sister would have caused psychological and emotional trauma on her. She will have to live with that stigma for a long period of time.
8. On your behalf, it was submitted by Mr Bosa 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 the offending and you are willing to face the consequence of your actions. Your guilty plea also saves the court’s time and resources to conduct a trial into the matter. It also save the victim further stress and trauma in having to come to court to give evidence in a contested trial. I will give you credit for your early guilty plea. I am also informed that you have co-operated with the police during investigation which had also led to your early guilty plea.
9. It is further noted that you have no previous conviction which will make you a first offender. I have also noted your personal circumstances. Having noted them I am guided by the views of this court in the case of R v Ligiau & Dori [1985 – 1986] SILR 145 in which it was held that in sexual offences cases, matters personal to the accused person will have less impact on sentence than in other serious crime.
10. I have noted that you are now 30 years old. I have read with much concern your explanation of the offending. I am concerned because if you have known an offence had been committed by your uncle, you should have reported it to the police for investigation. You never did but you have committed further offending on the victim. I do not believe your explanation. On the same note, I don’t believe that you are a good candidate for rehabilitation.
11. I have taken time to peruse and note the various case authorities cited by both counsel for the crown and defence. I have noted that the range of sentences in similar cases is an imprisonment term of 3 to 5 years.
12. Having noted the facts of your case, I will impose the following sentences;
    • Count 1: From the facts, I will put your starting point at 3 years imprisonment. For the aggravating features, I will increase your sentence by 18 months. For the mitigating features, I will reduce your sentence by 12 months. Total sentence to serve is 3 ½ years imprisonment.
    • Count 2: For the repetition of the offence, I will increase your sentence by 4 months. Total sentence to serve is one of 3 years and 10 months imprisonment.
    • Count 4: For the further repetition of the offence, I will increase sentence by 2 months. Total sentence to serve is 4 years imprisonment.

Orders of the court

1. The defendant is convicted of 3 counts of incest contrary to section 163 (2) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. Count 1: You are sentence to 3 and 6 months years imprisonment
3. Count 2: You are sentence to 3 years and 10 months imprisonment
4. Count 4: You are sentence to 4 years imprisonment
5. Sentences in counts 1, 2, and 4 to be served concurrently
6. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge