R v Qina [2022] SBHC 68; HCSI-CRC 681 of 2021 (11 August 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Qina
Citation:
Date of decision:	11 August 2022
Parties:	Regina v Joseph Tevoro Qina
Date of hearing:	11 August 2022
Court file number(s):	681 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. On count the Accused is sentenced to a term of five years and six months’ imprisonment. 2. On count 2 the Accused is sentenced to six years and two months’ imprisonment. 3. The sentence on count 2 is concurrent with the sentence on count 1. The total sentence then is six years and two months’ imprisonment. 4. The sentence commences today 11 August 2022.
Representation:	Mr P Fanasia for the Crown Ms T Aisa for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S 139 (1) (a)
Cases cited:	Pana v Regina [2013] SBCA 19, Alu v Reginam [2016] SBCA 8, Laui v DPP [1987] SBHC 4

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 681 of 2021

REGINA

V

JOSEPH TEVORO QINA

Date of Hearing: 11 August 2022
Date of Decision: 11 August 2022

Mr P Fanasia for the Crown
Ms T Aisa for the Accused

SENTENCE

Introduction

1. Joseph Qina you have pleaded guilty to two charges of having sexual intercourse with a child under the age of 15 years. Those charges alleged offending contrary to section 139 (1) (a) of the Penal code as amended by the Penal code (Amendment) (Sexual Offences) Act 2016. The victim was your twelve year old niece.

Facts

2. In May 2020 the victim went to get fire from her grandmother’s kitchen. You grabbed her with both hands while she was collecting the fire and took her to her grandmother’s house where you had sexual intercourse with her, penetrating her vagina with your penis. You continued until you ejaculated.
3. The following day the same victim was collecting coconuts. You arrived and took her to a bush where you again had sexual intercourse with her by inserting your penis into her vagina.
4. You were aged 27 at the time of your offending. I record that you have no previous convictions.

Aggravating Factors

5. The first feature of aggravation is the gross breach of trust. You are her uncle and she is a twelve year old child.
6. The second aggravating feature is that the offending was repeated.
7. The third factor of aggravation is the significant disparity in your ages.

Mitigating Factors

8. Your previous good character is a matter of mitigation but this needs to be balanced against the fact that you repeated your offending.
9. You have pleaded guilty at the earliest available opportunity. That demonstrates a degree of remorse.

Deterrence

10. I accept that there is a need for both general and specific deterrence. The community must be reminded that those who sexually abuse children can expect to lose their liberty. I take into account the need to hold you accountable for the harm that you have done to your victim and to the community. I need to denounce your conduct and deter you and others from offending of this nature. I need to protect the community from you and others who may be minded to act as you have.
11. It is irrelevant that the complainant may have gone along with you as the law makes it clear that a child cannot consent to such sexual conduct. This is especially so when the child is only twelve and someone who is your relative. The sentence must also bring home to you that should you offend in this manner again you will face a lengthy term of imprisonment.

Starting point

12. In Pana v Regina [2013] SBCA 19 the Court of Appeal said at paragraph [17]: “We suggest that in all but the most exceptional cases, the sole fact that the child is below the age of consent should in its age bring the starting point to eight years whether the conviction is for rape or defilement. The age of the victim should until be taken into account as a possible aggravating factor over and above that.”
13. In your case for the first incident I take a starting point of eight years’ imprisonment and increase that to reflect that your victim was your niece and that she was only twelve years old. I also make allowance for the disparity in your ages. The starting point for that change is increased to 9 years’ imprisonment.
14. For the second offence I need to reflect that the conduct was repeated not long after the first offence. The starting point for the second offence is 10 years’ imprisonment.

Concurrent/consecutive

15. The Court of Appeal in Alu v Reginam [2016] SBCA 8 approved the approach taken by this Court in Laui v DPP [1987] SBHC 4. In Laui the Court had said:
    • “When sentencing at the one time for two or more offences, the court will always need to consider whether to make the sentences concurrent or consecutive. The question that must be decided by the court in this regard is whether or not the offences were committed in the course of a single transaction. If they were, the sentences should be concurrent. If not then consecutive sentences are appropriate subject to the overall total.
    • The test of a single transaction is not just a matter of time but whether the offences really form part of a single attack on some other person's right. Thus, two separate offences even if occurring close together in time, for example, taking a vehicle without consent and then driving it dangerously, would merit consecutive sentences. On the other hand, the sentences for a series of assaults against the same person even though spread over a lengthy period of time a should properly be made concurrent.”
16. As your offending was of the same type against the same victim I treat the offending as causing from a single transaction even though they were on different occasions. The sentences will be made concurrent. From the starting point of 10 years I allow a one third discount because of your early guilty plea and the remorse that can be inferred from that plea.
17. I reduce the sentence for count 2 to 6 years and 6 months’ imprisonment. For the remaining mitigating factors, I reduce the sentence by a further four months. I make an adjustment to count 1 to reflect the mitigating factors including your guilty plea on that count. Your final sentence for Count 1 is five years and six months’ imprisonment. The final sentence then is 6 years and 2 months’ imprisonment. I understand you have been on bail since you were charged. I therefore direct that the sentence of 6 years and 2 months’ imprisonment commences today.

Orders

1. On count the Accused is sentenced to a term of five years and six months’ imprisonment.
2. On count 2 the Accused is sentenced to six years and two months’ imprisonment.
3. The sentence on count 2 is concurrent with the sentence on count 1. The total sentence then is six years and two months’ imprisonment.
4. The sentence commences today 11 August 2022.

By the Court
Justice Lawry PJ