R v Uraharia [2022] SBHC 71; HCSI-CRC 342 of 2022 (16 September 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Uraharia
Citation:
Date of decision:	16 September 2022
Parties:	Rex v Clement Uraharia
Date of hearing:	14 September 2022
Court file number(s):	342 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1 The Accused is convicted and sentenced to a term of imprisonment of 7 years and 9 months. The sentence is to commence from 18 May 2022. 2. The name of the victim is permanently suppressed.
Representation:	Ms F Luza for the Crown Mr D Kwalai for the defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S 139 91) (a), S 5
Cases cited:	Pana v Regina [2013] SBCA 19, R v Bonuga [2014] SBCA 22, R v Ligiau and Dori [1986] SBHC 15, Soni v Reginam [2013] SBCA 6, R v Belo [2021] SBHC 17, R v Gigia [2022] SBHC 1

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 342 of 2022

REX

V

CLEMENT URAHARIA

Date of Hearing: 14 September 2022
Date of Decision: 16 September 2022

Ms F Luza for the Crown
Mr D Kwalai for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Clement Uraharia you have pleaded guilty to one charge of having sexual intercourse with a child under the age of 15 years contrary to section 139(1)(a) of the Penal Code as amended by section 5 of the Penal Code (Amendment) (Sexual Offences) Act 2016. The maximum penalty for this charge is life imprisonment. You now appear for sentence.

Facts

2. You were living with the neighbour of the victim in Tasahe B area, West Honiara. The victim was born on 27 April 2016. She was aged just 6 years old. She went to play at the house where you were staying. She ended up in your room. You had sexual intercourse with her, penetrating her vagina with your penis. You caused her pain. You have robbed her of her innocence.

Personal Circumstances

3. You are single and aged 48 years. You have no previous convictions. Your counsel describes you as a leader in the community, a chief to whom people turn to resolve problems over such things as customary land disputes.

Principles of Sentencing

4. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to your victim and to the community. As a leader in the community you need to understand the harm you have caused to the victim and to your community. I must promote in you a sense of responsibility for and an acknowledgement of that harm. I need to denounce your conduct and deter you and others from such offending. I need to protect the community from you and others who may be minded to act as you have. I need to provide for your reintegration into the community and for your rehabilitation.
5. I must bear in mind the gravity of your offending and the seriousness of this type of offending. I also bear in mind the need for consistency in sentencing levels and the requirement that I impose the least restrictive outcome appropriate to the circumstances.

Aggravating factors

6. The first aggravating factor is the age of your victim. Your counsel has submitted that the age is not an aggravating factor as it is an element of the charge. For a charge under section 139(1) (a) the child must be under the age of 13 years. The Court of Appeal in Pana v Regina [2013] SBCA 19 said at paragraph [17]:
   • “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 factor. Its aggravating effect on the sentence will usually be greater the younger the child.”
7. I regard the age of your victim as a significantly aggravating factor.
8. Associated with the age of the victim is the gross disparity in your ages. You were 48 and she was just 6.
9. The victim was vulnerable as a guest in the house of her neighbour and you took advantage of that to sexually violate her.
10. The Crown has submitted that the offence has psychologically and emotionally brought shame on the victim and her family. She should feel no shame. She was the victim in your offending. You are to blame for what she suffered. She was not to blame. Although the prosecution has not put forward evidence of the harm your victim has suffered in R v Bonuga [2014] SBCA 22 the Court of Appeal said:
    • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider that judicial notice needs to be taken of the devastating effect on the victims of sexual offending, especially young victims as in this case. The psychological trauma cannot be ignored.”
11. I accept that your victim will have to live with the devastating effects of your conduct for the foreseeable future.

Mitigating features

12. The most significant mitigating factor is your early guilty plea and the remorse such a plea reflects.
13. I accept that your guilty plea was entered at an early stage.
14. In Pana v Reginam [2013] SBCA 19 the Court of Appeal said at paragraph [22]:
    • “The most important mitigating effect of a plea of guilty in a sexual offence and in any case involving a young child is that it saves the complainant from the distress of having to relive the trauma from the witness box. It is also frequently accepted as a sign of remorse and realisation of the wrong the accused has done. Finally and too a much lesser extent (see Millberry) is the pragmatic fact that it saves the court time and expense.”

Then at paragraph [26] the Court said:

• “The judge was correct to make some reduction for the plea of guilty. In many cases where sexual offences are involved, a plea of guilty can result in a very substantial reduction, sometimes as high as a third, of the total penalty.”

15. The only other mitigating factor is that you have not previously come to notice. I record however that the Courts have frequently repeated the sentiments expressed in R v Ligiau and Dori [1986] SBHC 15 where the Court said:
    • “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.”

Starting point

16. Counsel have referred to R v Ligiau and Dori as the appropriate tariff case. In Ligiau and Dori the Court said:
    • “For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.”
17. Ligiau and Dori has been approved in Soni v Reginam [2013] SBCA 6 where the Court of Appeal after confirming Ligiau and Dori to be the appropriate tariff case added:
    • “The crime should in any event be treated as aggravated by any of the following factors:
    • (1) violence is used over and above the force necessary to commit the rape;
    • (2) A weapon is used to frighten or wound the victim;
    • (3) the rape is repeated;
    • (4) the rape has been carefully planned;
    • (5) the defendant has previous convictions for rape or other serious offences of a violent or sexual kind;
    • (6) the victim is subjected to further sexual indignities or perversions;
    • (7) the victim is either very old or very young;
    • (8) the effect upon the victim, whether physical or mental, is of special seriousness.”

Your victim was clearly very young and I accept the effect in her is of special seriousness.

18. In fixing the starting point I keep in mind the need for deterrence, both for the general public and for you should you again be minded to ignore the rights of another person and sexually abuse a young girl, as you did.

Discussion

19. Counsel has referred to a number of previous decisions of this Court. In R v Belo [2021] 17, a 71 year old man who had previous been convicted had sexual intercourse with a girl aged 10. He pleaded guilty and was sentenced to 9 years’ imprisonment.
20. Your counsel placed emphasis on the decision of R v Gigia [2022] SBHC 1. In that case the offender was aged 40 and the victim was aged 6. He was sentenced for licking the victim’s vagina. I consider that the offending in your case was more serious than in Gigia and that I am bound by the Court of Appeal decision of Pana in fixing a starting point.
21. I see no reason to depart from the guidance set out in Pana at paragraph [17]. I take a starting point 8 years imprisonment and increase that to reflect the tender age of the victim. She was not as young as the victim in Pana but as a six year old she may well suffer from the sexual abuse at least as much. In Pana there were some other aggravating factors that increased the starting point to 14 years’ imprisonment. There was a late guilty plea which was more generous than the Court of Appeal considered appropriate. A final sentence of eleven and a half years was confirmed.
22. I consider an increase to reflect the aggravating factors can be no less than 3 years and 6 months raising the starting point to eleven years and six months.
23. I allow a reduction of three years and 9 months for your guilty plea and mitigating factors. That leaves a final sentence of 7 years and 9 months’ imprisonment.

Orders of the Court

1. The Accused is convicted and sentenced to a term of imprisonment of 7 years and 9 months. The sentence is to commence from 18 May 2022.
2. The name of the victim is permanently suppressed.

By the Court
Justice Howard Lawry PJ
Puisne Judge