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R v SV [2023] SBHC 140; HCSI-CRC 684 of 2020 (28 August 2023)

HIGH COURT OF SOLOMON ISLANDS


Case name:
R v SV


Citation:


Date of decision:
28 August 2023


Parties:
Rex v SV


Date of hearing:
16 Wednesday 2023


Court file number(s):
684 of 2020


Jurisdiction:
Criminal


Place of delivery:



Judge(s):
Talasasa; PJ


On appeal from:


Order:
1. Length of sentence imposed: 20 years imprisonment
2. Pre-sentence period in custody to be deducted: Nil
3. Time to be served in custody: 20 years


Representation:
Tonowane N for the Prosecution
Asia T for the Defence


Catchwords:



Words and phrases:


Legislation cited:
Penal Code (Amendment) (Sexual Offences) Act 2016 S 142 (2), S 139 (1) (b), Constitution S 10 (1)


Cases cited:
R v Gwali [2021] SBHC 97, Regina v Kemakeza [2008] SBHC 41, Pana v Regina [2013] SBCA 19, Regina v Bonuga [2014] SBCA 22, R v Liufirara [2023] SBCA 10, Nanai v Regina [2005] SBHC 74, Roni v Regina [2008] SBCA 8, Qoloni v Regina [2005] SBHC 73, Gerea v Regina [2005] SBHC 34, Talifai v Regina [2011] SBHC 16, R v Ba'ai [2023] SBCA 9, R v Ligiau and Dori [1986] SBHC 15, R v Taurikeni [2012] SBHC 31, Millberry v R [2002] EWCA Crim 2891, Regina v Junior [2011] SBHC 44, Ti’i v Regina [2017] SBCA 6, Regina v Ramo [2013] SBCA 9, Vaumer v The Queen [1988] HCA 68, Bade v Reginam [1988] SBHC 10, Bara v Reginam [2018] SBCA 10, R v Billam [1986] 1 WLR 349, Soni v Reginam [2013]

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION


Criminal Case 684 of 2020


REX


V


SV


Date of Hearing: 16 Wednesday 2023
Date of Sentence: 28 August 2023


Tonowane N for the Prosecutions
Aisa T for the Defence

Sentence

INTRODUCTION

  1. Prisoner SV, on Thursday 17 August 2023, following your arraignment, this court convicted you on your own plea, for one count of ‘persistent sexual abuse of a child,’ contrary to section 142 (2) as read with section 139 (1) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
  2. The Amended Information filed on Thursday 17 August 2023, charged that the prisoner had sexual intercourse with the victim on three separate occasions on separate dates at Leona Village in Vella La Vella, Western Province.
  3. It is an agreed fact that the victim was born on 2 August 2005 at Leona Clinic. The victim was 14 years old at the time of the offending.
  4. The three separate incidents of sexual intercourse with a child under 15 years gave rise to the charge of ‘persistent sexual abuse.’
  5. The summary of facts was read in court by the prosecutions and agreed to by the defence. When the prisoner was asked if he agreed with the summary of facts, he responded, ‘yes.’
  6. The summary of facts set out the background to the three incidents that constituted the charge and how the offending occurred.
  7. The Court conducted your sentence hearing at 10am on Tuesday 22 August 2023. After that, the Court reserved its ruling until today.
  8. This is my ruling on your sentence.
  9. To protect the identity of the child, I will use the initials ‘GL.’
  10. To avoid the victim being identified, I have also ordered to use the initials ‘SV’ to refer to the prisoner.
  11. I accept that this case given its nature might be given some wider publicity. I have given orders that if the case is reported in the media or through other means, any information that might identify the victims is suppressed.
  12. I note from the facts presented that this is a serious offence, especially when such a crime of violence is committed against a child; and so in considering sentence I do not take that fact lightly.
  13. I also note that this type of offending has been on a steady increase over the years.
  14. I also note that with regard to sexual offences generally, the Law Reform Commission in its previous report has highlighted the same. Other government institutions and civil society organisations have been vocal about the trend in recent years.
  15. Parliament in its wisdom responded through the enactment of the Penal Code (Amendment) (Sexual Offences) Act 2016. This legislation provided the statutory framework governing sentencing for sexual offences.
  16. The Court of Appeal, up to recently, continues to provide the jurisprudence governing sentencing (also expressed the role that the High Court plays in sentencing).
  17. But as we see through the cases that have been and are being dealt with by court post amendment, the offending continues.
  18. At this High Court Circuit, if I may add, about 97-98% on the cause list was sexual offences.
  19. I remind myself though; that each case is to be dealt with on its own merits.

SENTENCING

  1. The Summary of Facts are set out as follows:

Summary of Facts

  1. The defendant is ‘SV’ of Visale Village, Northwest Guadalcanal, Guadalcanal Province. He was 38 years old at the time of the offending and a step-father of the complainant.
  2. The complainant is ‘LG,’ of Leona Village, Vella, La, Vella Island, Western Province. She was born on 2nd August 2005 at Leona Clinic, and she was 14 years old at time of the offending.
  3. The incident occurred on 3 separate occasions.
  4. The first incident occurred on the 7th October 2019 at 2:00pm, inside the room of their dwelling house at Leona Village, Vella La Vella Island. At that time, the complainant has just arrived from school and went inside the room to change her school uniform. She changed her uniform and wore an under pant with a skirt and a shirt. While she was still in room, the defendant came inside and told her to remove her under pant and also told her to lay down faced up. So she submitted to his instruction. At that time the complainant saw the defendant fully naked with his erected penis, and standing next to her. The defendant then kneels down, moved his body towards her and pushed his erected penis inside her vagina and had sexual intercourse with her until he was ejaculated inside her vagina. The complainant felt pain when the defendant has sex with her and she was sperm coming out of her vagina, after the sexual intercourse.
  5. The second incident occurred on 10th October 2019 between 7:00 am and 8:00 am at Leona Village inside the room of their dwelling house. At that time the complainant was inside the room ready to wear he school uniform to go to school. As she was about to wear her uniform, the defendant came inside the room and told her to remove her under pant and told her to lay faced up. When she lay down the defendant removed his trouser, lay towards her and pushed his erected penis into her vagina and has sex with her until he was ejaculate inside her vagina. He then pulled out his penis, wore his trousers and went out of the room. The complainant did not tell anyone as she was afraid.
  6. The third incident occurred on 13th November 2019 at about 2:00 pm inside the room of their dwelling house at Leona Village Vella La Vella Island. At that time, the complainant has just arrived home from school. Only the defendant was there inside the house and he told her to go inside the room. She went side the room and the defendant told her to remove her under pant and told her to lady down faced up. He then removed his blue trousers, proceeded towards her and sucked her breast whilst touching her vagina with his hand, and then inserted his erected penis into her vagina and has sex with her until he ejaculated inside her vagina.
  7. The complainant did not see her period after the defendant has sex with her. On 9th January 2020, she went to Gizo Hospital and examined by Doctor James Niunimae and his observation were as follows:
  1. The complainant gets pregnant and gave birth to a baby girl.
  2. I have reproduced the entire submissions by both counsels in this judgement for convenience and to show that the court took into account all that was highlighted in their submissions.
  3. The Prosecutions submitted that the court takes into account the following factors when considering sentence.

A. FACTORS TO BE CONSIDERED IN SENTENCING

  1. When considering the much appropriate sentence, this Honourable Court is respectfully asked to take the following matters into account: -

8. Maximum Sentence

  1. The maximum penalty for an offence against section 142 (2) is as follows:
“(2) A person commits an offence if the person engages in an act in relation to a particular child that constitutes a sexual offence on 3 or more separate occasions occurring on separate days during any period.

Maximum penalty: Life imprisonment.”

  1. The maximum penalty term demonstrates the gravity of the offence and the motives of the legislators’ to deter and condemn those who front the Court for the offence of Rape or Persistent sexual abuse of a child under 15 years. In Regina-v-Fred Gwali[1] his Lordship Palmer CJ said at paragraph 3:
“The maximum sentence of life imprisonment reflects the level of seriousness and concern with which this type of offence is viewed in the community and the need to protect young girls from other men and themselves. Young girls often fall victim to the uncontrolled urges of men to satisfy themselves at the expense of the victim, their dignity, family and future. The consequences can be long lasting through ongoing shame, fear and insecurity.”
  1. However, the Court have the discretion to impose a lesser sentences, depending on the criminality of the defendant, the circumstances of the offending and the factors which may aggravate the offending. In the case of Regina v Kemakeza[2] his Lordship CJ Palmer stated:
"The level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty. The more serious an offence the greater the maximum penalty imposed".
  1. Although the Court has the discretion to impose lesser sentences, it is submitted that the Court must not turn out of its duty to punish offenders for such serious crimes as rape orpersistent sexual abuse of a child under 15 years. This is because imposing lenient sentences may to some degree deviate from the intention of the legislators’, and the need to discourage others from committing such gruesome crimes, or indulging in activities that would give rise to such offending.
  2. The Prosecutions outlined in their submissions what they considered to be the features that aggravated the offending. These are referred to below:

b Aggravating Features

  1. It is submitted that the following aggravating features need to be considered when sentencing the defendant:
    1. Age of the victim. The victim was a small girl of 14 years old when offences occurred. In the case of Pana v Regina[3]the Court of Appeal 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.”
  1. The age disparity between the victim and defendant. The victim was 14 years old and the defendant is 38 years old. There is an age difference of 24 years.
  2. Breach of Trust. The defendant is the victim’s step-father. In Solomon Islands culture, a step-father is like a biological father and he was respected and entrusted in a family setting or community as whole. Hence, the defendant in this present case is a step-father of the victim and the victim and she has entrusted the defendant to provide care and security for her, but instead he abused his position of trust as a step-father and acted otherwise when he committed the offence on his grand-daughter. It seems the victim submits out of respect or fear due to the defendant’s position of authority, trust or responsibility.
  3. Psychological and Emotional effect on the victim. It is submitted that there is no doubt that the offence has psychologically and emotionally brought same on the victim and her family. In the case of Regina v Bonuga[4]the Court of Appeal said at paragraph [23]:
“There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider 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.”

In the recent case of Rex v Ramson Liufirara[5]the Court of Appeal said at paragraph 23:

“We are quite satisfied in all cases of sexual offending of this sort, while there may not be observable physical damage, the level of psychological harm that creates ongoing issues for complainants is well-documented and can be taken judicial notice of as per Bonuga.”
  1. Repeated commission of the offence on the victim in their own family home. The defendant having sexual intercourse with the victim more than once on 3 different occasions in on 7th October 2019, 10th October 2019, and 13thNovember 2019 in their family home. The offending does not limit to the first incident. It is submitted that there is need be an increase from the starting point to take into account the totally of the offending.
  2. Subsequent pregnancy. The Complainant was pregnant by the Defendant and she give birth to a baby girl. In Nanai v Regina[6] Justice Kabui states:
“The fact that your daughter had become pregnant and given birth to a still born child is an aggravating factor against you. It did not matter that your daughter hid her pregnancy from you until delivery of the child. You were responsible for her pregnancy and you knew it.”
  1. In mitigation the Defence submitted as follows:

Mitigating factors

  1. The Accused admits the offence and enters an early guilty plea at the first available opportunity. By pleading guilty, he owned up to the offending and willing to face the consequences of his action.
  2. Furthermore, in Pana v Regina [7], paragraph 22 effect of guilty plea in a sexual offence and 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. Also it Court’s time, resource, and public money to call witnesses to run a full trial.
  3. In R v John Mark Tau and others Palmer J ( as he then was ) stated ,
  4. “A plea of guilty demonstrates very clearly in my view a person who is not only remorseful, and is sorry for all his actions, but is courageous enough to face up to his own actions and the consequences that normally flow from it.”
  5. The Accused is a first time offender. He has been a law-abiding citizen for the past 38 years before he had committed the offence. He cooperated with the police and voluntarily surrendered to police custody.
  6. The Accused is married and has five children. Three of them are attending school. First born is in form one, second born is in class 6 and third born is in class 4, all attend school at Visale. The two young ones are yet to complete their prep class due to their father is in Custody. His wife has breast cancer and is currently in Vella La Vella. The Accused looks after his old parents at the village, also took responsible to look after the five children since their mother is sick, and is away.
  7. The Accused was very remorseful for his actions and made a reconciliation ceremony with the victim and his family. The reconciliation held at the victim’s family house. Families of two parties were presented at the time (2020). The Chiefs and a minister attended and witnessed the reconciliation. They are Chief Sikota, Chief Teddy Pavo, Chief Elijah and United church Minister Mr. Beckly Kahui. The Accused gave three custom money (Bakiha) to the victim and her family as compensation.
  8. The Accused was remanded at Gizo Correctional Centre sometimes in January 2020 and released on bail sometimes in March 2020. Then remanded again on 15 June 2023 until today.
  9. It was submitted by the prosecutions that the prisoner was entitled to be given allowance for the guilty plea.
    1. The defendant plead guilty to the offence. In the case of Roni v Regina[8]the Court of Appeal stated at paragraphs 16 and 17:

In the case of Roni v Regina[9]the Court of Appeal stated:

“While the principal basis on which a plea of guilty can be prayed in aid by way of mitigation as demonstrating in some cases true remorse on the part of the offender, the extent to which it is taken into account is a matter for the court to determine and dependent on the facts of each case. For instance, if the accused had indicated that he would be entering a guilty plea at the committal proceedings, or well before commencement of the trial. There are other factors too which a court has to take into account, such as the interests of society and striking a balance when considering how much discount to consider. In some instances it may be difficult to see how a defence can be run successfully on a not guilty plea. In such situations he cannot expect much by way of a discount.”
In the case of Rex-v- Wilfred Ba’ai[10] the Court of Appeal stated at paragraph 17:

The Crown submits that the defendant in this present case must be given an allowance (discount) for his guilty plea.

  1. The defendant is a first-time offender. Crown acknowledge the defendant in this present case is a first-time offender, however, it is submitted that it has little bearing as a mitigation factor for sexual offence cases such as this present case. In R v Ligiau and Dori[11]His Lordship, Ward C.J. said:
“I treat you... as first offenders and allow for the personal circumstances outlined by your counsel but those, as I have said, have little bearing on sentence in a case of this nature.”
  1. The defendant’s personal circumstances. It is submitted that matters personal to the defendant has less effect as mitigating factorin sentencing for sexual offence cases like the present case. In R v Ligiau and Dori[12]His Lordship, Ward C.J. pointed out that: -
17. “The problem in sentencing for such an offence is that, when the court is faced with a contrite offender, too often mitigating factors are allowed to push consideration of the victim and the offence itself into the background. 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.”
In R v Taurikeni - Sentence[13]Justice Foukona stated at paragraph 29 as follows:
In the recent Court of Appeal case of Rex-v- Wilfred Ba’ai[14]the Court of Appeal stated at paragraph 17:
  1. There may be other mitigation factors which defence may submit such as good character. However, Crown submits that the facts the defendant committed the same offences after the first one, does not reflect or speak volume of the defendant as a person of good character. Hence, the court may disregard this factor in the light of the seriousness of this offence. In Millberry v R[15], the court stated that; “-the defendant's good character, although it should not be ignored, does not justify a substantial reduction of what would otherwise be the appropriate sentence.”
  2. It is submitted that although the Court is required to consider the mitigating factors, it must not outweigh the seriousness of the defendant’s offending in this case. In other words, it is submitted that the aggravating factors outweigh the mitigating factors, when considering the circumstances of this present case.
  1. I appreciate the sincerity of the prosecutions to address court on other matters relative to delay. On this point, the prosecutions submitted as follows:

Addressing the issue of delay

  1. Section 10 (1) of the Constitution states:
“If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
  1. In the case of Regina v Junior[16] his Lordship Justice Faukona stated in paragraph 28 as follows:
“Delay is a well establish mitigating factor, but has to be properly taken into account when considering the appropriate sentence. The issue of delay acquire its root from section 10 (1) of the constitution which provides that any person charge with criminal offence be afforded a fair trial within reasonable time...”
  1. Therefore, it is submitted that section 10 (1) of the Constitution clearly provides for a person charged with a criminal offence shall be afforded a fair hearing within a reasonable time. In other words, it means, the issue of delay comes into operation only when a person is charged with a criminal offence, but the hearing of his/her case was unreasonably delayed. On the other hand, the issue of delay cannot be raised or back-dated to when the offence occurred, because it has no basis in law or the Constitution as the Supreme Law of this Country.
  2. For this present case, the offending occurred on three separation occasion on 7th October 2019, 10th October 2019 and 13th November 2019. The matter was first initiated or mentioned at Gizo Magistrates Court on 13th January 2020. On 17th January 2022, the matter listed for bail application and on 28th January for bail hearing.
  3. The matter was committed to the High Court on 24th April 2020 and defendant’s bail was varied. on 26th January 2021, the information was first filed. On 1st February 2021, the matter was called during the Gizo High Court Circuit. On 8th August 2022, the defendant failed to attend Court and Warrant of Arrest (WOA) was issued. The WOA was not executed until 15th June 2023.
  4. Hence, delay cannot be back-dated to when the offence occurred. If there’s a delay, it must start when the charges filed against the defendant. Further, it is submitted that in the Western District, the sitting of the High Court only happens one’s or twice in a year during High Court circuits, unlike in Honiara where the High Court sits every time. Likewise, the defendant has failed to attend Court and Warrant of Arrest (WOA) was issued and was not executed until 15th June this year 2023. Thus, if there’s a delay, Crown should not be blamed for because it was the defendant who contributed much to the delay to process this matter when he fails to attend his court dates.
  5. I note the submissions on delay. This was not raised by Counsel Aisa. Whilst I note that the Information was not filed until later, I agree that the delay was not inordinate.
  6. I note the submissions by both counsels in relation to sentencing principles. I am particularly attracted to what the Court of Appeal stated in Tii v Regina which was referred to by counsels:

Sentencing Principles

20. In Tii v Regina[17] the Court of Appeal stated at paragraph 21:
“A sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation.”

Deterrence (General and Specific deterrence)

21. General deterrence is required to reflect that the community does not accept the defendant’s conduct and to deter others members of the community from committing similar offences.
22. Personal deterrence is significant. The defendant must be discouraged from committing the same or similar offences in the future. Any sentence imposed should act as a deterrent to the defendant. The defendant should know that if he acts in the same or a similar way in the future, he will be dealt with accordingly.

Punishment

23 In Regina v Ramo[18], the Court of Appeal when referred to Vaumer v The Queen[19] stated at page 58 as follows:
"The sole criteria relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence".
24. The Court of Appeal in Ramo also pointed out that, “In order to determine the appropriate sentence to be imposed in any particular case, the Court would consider the nature and the circumstances surrounding the commission of the offence...”
25. In the case of Bade v Reginam[20]his Lordship Ward C.J (as he was then) states:
“When considering sentence for a number of offences, the general rule must be that separate and consecutive sentences should be passed for the separate offences. It is trite to point out that a man who commits, say, five offences should receive a heavier sentence than a man who only commits one of them.
However, there are two situations where this rule must be modified. The first, that where a number of offences arise out of the same single transaction and cause harm to the same person there may be grounds for concurrent sentences...
The second occasion for modifying the general rule arises where the aggregate of sentences would, if they are consecutive, amount to a total that is inappropriate in the particular case. Thus, once the court has decided what is the appropriate sentence for each offence, it should stand back and look at the total. If that is substantially over the normal level of sentence appropriate to the most serious offence for which the accused is being sentenced, the total should be reduced to a level that is " just and appropriate" to use the test suggested in Smith v. R. [1972] Crim.L.R. 124. Equally, if the total sentence, although not offending that test, would still in the particular circumstances of the person being sentenced, be a crushing penalty, the court should also consider a reduction of the total.
Having decided the proper penalty for each individual offence but feeling the total is too high, it is better to achieve a reduction by making some or all concurrent rather than to reduce the length of the individual sentences whilst leaving them consecutive. The former course results in sentences that still reflect the gravity of each individual charge.”

Approach to sentencing

21. In Tii v Regina[21] the Court of Appeal stated at paragraph 21, 22 & 23 as follows:-
“21. A sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation.
22. The starting point should be consideration of the facts of the offence and of the appropriate range of penalty for the offence constituted by those facts. Then any aggravating circumstances should be identified.
23. The sentencing judge’s attention should then turn to facts relating to the offender – his antecedents (including personal circumstances and criminal history, if any) and mitigating factors such as youth, remorse, or plea of guilty (including the circumstances in which the plea was entered). Intoxication may be an explanation for an offender’s conduct, but not an excuse for it: in other words, it should not be treated as a mitigating factor.”
22. In Bara v Reginam[22] the Court of Appeal stated at paragraph 15 and 16 as follows:
“15. With appropriate guidance, where available, a sentencing judge should identify a starting point. From the starting point there will be adjustment to take into proper account factors which make the offending more serious (aggravating features) or may serve to suggest that the sentence is too harsh, often more related to the offender than the offence (mitigating features). This requires the judge to set out what he regards as aggravating and mitigating when he intends to take them into account in the final sentence or reasons why he intends not to take them into account.
16. After identification of the aggravating and mitigating features and how they affect the starting point reference should be made to the effect, if applicable, of an early guilty plea. Where a discount is to be given that should be indicated. Where no discount is to be given a reason for that decision should also appear in remarks made on sentencing. Equally where no allowance is to be made for pre-sentence periods of custody served relating to the offending before the court reasons should be given. See Tii v R 2016 SBCA 14.
  1. In relation to starting point, counsels submitted that the appropriate starting point should be one of 8 years, applying R v Ligiau and Dori. Prosecutions submitted as follows:

Starting Point

23. In R v Ligiau and Dori[23]the Court, in considering the appropriate sentence has adopted the views of Lord Lane CJ in R. v. Billam (1986) 1 WLR 349 where it 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.”
24. It is submitted that the defendant in this present case is the victim’s step-father and therefore heis in a position of responsibility towards the victim. Therefore, a starting point of eight years is appropriate.
25. In the case of Pana v Regina[24] the Court of Appeal said at paragraphs [15] & [17]:
“[15] The Billam guidelines set three starting points; five, eight and fifteen years. Although the age of the rape victim is always a factor, we consider that, when the victim is a child below the age of consent, that should always bring the starting point up to eight years.
“[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.
26. It is submitted that the victim in this present case was 14 years old during time of the offending, therefore she is a child below the age of consent. Thus, eight years starting point is appropriate for the Court to impose in this present case.
27. Consequently, it is submitted for this Honourable Court to consider the guideline set out in Ligiau and Dori and Panawhere the appropriate starting point in this present case is eight years. This is because defendant is in a position of responsibility towards the victim as pointed out in Ligiau and Dori and the victim is a child below the age of consent as highlighted in Pana.
28. After establishing the starting of 8 years, the Court should increase it by considering the aggravating factors and then decrease it by considering the mitigation factors, to fall in line with the sentencing approach in the case of Tii and Bara.
29. In addition, the case of Ligiau and Dori has been approved in the case of Soni v Reginam[25]where the Court of Appeal stated at paragraph 6:
“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 of 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.”
30. However, in Regina v Liva[26]the Court of Appeal said at paragraph 22:
“We also note that in Ligiau and Dori at page 3, Ward CJ cited eight factors taken from Billam[8] that could be treated as aggravation. We do not take that as an exhaustive list, because matters of aggravation must always be open.”
31. In the case of Pana v Regina[27] the Court of Appeal said at paragraph [17] and [26]:
“[17]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.
[26] There is no doubt that the very young age of the complainant is a serious aggravating feature in this case, which, in itself, should increase the sentence substantially over the starting point. That factor also makes the remaining aggravating features more serious than they would have been had the child been much older and we would accept the judge’s assessment that they collectively merit four additional years.”
32. This means the very young age of victim in this present case, should aggravate or increase the starting point of 8 years. It cannot amount to double accounting as said in Pana. From this, the starting point should increase further by taking into account the other aggravating factors.
33. On the other hand, it is submitted for this Honourable Court can depart from the starting point of 8 years set out in Ligiau and Dori; and Pana, as pointed out in the case of Soni v Reginam[28]where the Court of Appeal stated at paragraph 13:
“Where the sentencing judge feels constrained to depart from established guidelines he or she is entitled to do so if the circumstances of the case warrant such a departure. In that instance, it is simply necessary for the sentencing judge to give reasons for the departure from those guidelines. That, in the High Court, may well be considered preferable to purporting to change guidelines that have been approved by the Court of Appeal.”
  1. Counsel Aisa for the prisoner, on the other hand submitted as follows:
  2. Both Counsels highlighted what courts in this jurisdiction had done with similar cases.

d) Comparative Sentences submitted by prosecutions.

26. In the case of Rex v Losberry Lewa[29], the defendant found guilty of one count of persistent sexual abuse of her daughter who was 16 years old on 4 occasions, and he was 38 years old on the first occasion. He was then sentenced to 11 years and 8 months’ imprisonment. The Court consider the starting point of 8 years, before considering the aggravating and the mitigating factors. The victim in Losberry Lewa is 2 years older than the victim in this represent case.
27. In the case of Rex v Philip Kiap[30] the defendant found guilty of one count of persistent sexual abuse of a 14 year old girl, together with other two counts indecent act. He was then sentenced by this Court to 9 years and 6 months’ imprisonment for persistent sexual intercourse. In this case (Phillip Kiap) the Court imposed the starting point of 8 years because the victim is below the age of consent. The victim in this present case is 14 years old at the material time, same as the victim in Phillip Kiap’s case which was 14 years old as well. The victim in this present case also suffered Psychological and Emotional effect, and the defendant was her step-father who holds a position of trust or responsibility towards her, and she was also pregnant by her step-father.
28. In the case of Regina v Fred Gwali[31]the defendant pleaded guilty to the offence of Persistent sexual abuse of a child of 12 years old when the offending commenced. The Court increased the starting point of 8 years as stated in Pana to 10 years. 3 years was added to reflect the other aggravating factors, resulting in 13 years in total. In other words, the Court imposed the starting point of 13 years by factorising or including all the aggravating factors. 6 years and 3 months was deducted to reflect the mitigating factors, and final sentence was 6 years and 9 months’ imprisonment.
29. Therefore, Crown submits by considering the circumstances and the seriousness of the offending in this present case, a sentence from 6 to 11 years’ imprisonment is appropriate. Any sentence below 6 years would be viewed as too lenient, as far as the seriousness and circumstances of this offending (or case) is concerned. In the case of Rex-v- Wilfred Ba’ai[32], the Court of Appeal stated at paragraph 14:
“We find some of the sentences imposed as set out above, particularly those that included full penile penetration, remarkable light and out of line with contemporary sentencing for sexual offences. As well in almost every instance the judge suspended part or all of the sentence. That is hardly conducive to deterrence. The other problem with the sentencing is that judges does not specify any starting point. Given those sentences were all imposed by the same judge there appears to be a pattern of imposing much more lenient sentences that the guideline judgements of this Court would require.”
30. This is a case that requires careful consideration of the serious of the offence and the circumstance of the offending, together with the sentencing principals and guideline decisions. It is submitted that a deterrent sentence must be imposed by this Court as a clear message to likeminded offenders. The court must not take it lightly because of the prevalence of such offending in the Country. In 2017, the Court of Appeal the case of Regina v Liva[33]at paragraph 21, referring to an interim report on the prevalence of this type of offence in the community and pointed out:
“That report confirms the prevalence of sexual violence against women and children within the Solomon Islands. We repeat it is appropriate for a sentencing regime to note and take into account that prevalence.”
31. Just recently this year (2023), the Court of Appeal once again highlighted the same sentiment in Rex-v-Ramson Liufirara[34]. The Court of Appeal stated at paragraphs 2, 3 and 4 as follows:
“2. We consider it necessary to express concern that a number of Judges in the Solomon Islands appear to ignore the guideline decisions (Footnote 2) for offending in sexual cases. In recent times there have been a number of successful Crown appeals, and it is clear to us, for reasons unknown, that there is a failure to properly consider and apply the guidelines. This is another such case.”
“3. A number of decisions of this Court refer to the report of Solomon Islands Law Reform Commission published in June 2013. That report details an appalling situation regarding sexual offending and violence against women and children in the Solomon Islands. It is recommended new sexual offences and an increase in penalties for others. This Court accepts the contents of that report as accurate (See also Pana at para 11).”
“4. The Penal Code (Amendment (Sexual Offences) Act 2016 was a partial response. Appellate decisions since that report are also a recognition of the increased need for deterrence by way of sterner sentences. The protection of women and children requires it.”
32. it is submitted that a sentence this Honorable Court may imposed, must act as deterrence to the likeminded offenders, and must also act as protection for women and children in this country.
  1. The Defence submitted on this point by referring to the following cases:

R v Romwane [2021] SBHC 74;HCSI-CRC 265 OF 2021-

18.0 The defendant charged with one count of persistent sexual abuse of a child contrary to section 142(2) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The Defendant was 24 years and the Complainant was 13 years at the time of the offending. The Defendant had sexual intercourse with the Complainant on four occasions. On the first incident, after a youth night program she left to her village, on her way she met the Defendant. The Defendant asked to befriend her and she accepted him. There the Defendant took her to a nearby betelnut plantation and had sexual intercourse with her. On a second incident, on an evening the Complainant went to Church, the Defendant met her, took her beside a bush near the church, and had sex with her. On the third incident, the Complainant went for practice at church when she met the Defendant and the Defendant took her to the plantation and had sex with her. On the fourth incident, at 10pm when the Complainant had gone to the youth program and had asked her and she agreed so they had sexual intercourse again. Later, she had a stomach ache and was sent to National Referral Hospital, and was told she had miscarriage. Therefore, the Defendant was arrested. The Court imposed a sentence of 2 years’ imprisonment.
18.1 In the case authority, the defendant had sexual intercourse with the victim on four (4) separate times whereas in the present case, the defendant had sexual intercourse with the victim on (3) occasions. The age disparity in the case authority was 11 years. However, in the present case the age difference is 22 years. No breach of trust in the case authority as opposed to the present case where the defendant is the stepfather of the victim. There was subsequent pregnancy in the present case, similarly to the case authority where the victim got pregnant as result of sexual intercourse with the defendant. However, she was miscarriage as contrary to our present case.

R v Gwali [2021] SBHC 97; HCSI-CRC 175 of 2020

19.0 The Defendant was charged with the same charge as in the case at hand. The defendant was 49 years old and the Complainant was 12 years old at the time of the offending. The Defendant is the stepfather of the Complainant. The offence was done repeatedly on three (3) instances on the Complainant. The Court imposed a sentence of 6 years and 9 months’ imprisonment.
19.1 The cited case facts are analogous to the present case, such both cases has only three occasions, there was a breach of trust, both Defendants are step fathers of the victims. On the contrary, the facts in the cited case is distinguishable to our facts that is, in our case there is a subsequent pregnancy as opposed to the cited case. And the age disparity in present case is one of 22 years as opposed case is of 38 years.
R v Tavake [2022] SBHC 33; HCSI-CRC 568 of 2019 (27 May 2022)
  1. Counsel Aisa pointed out that the maximum penalty for the offence of persistent sexual abuse contrary to 142(2) and section 139(1) (B) of the Penal Code (Cap 26), as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 is life imprisonment.
  2. Counsel Aisa further submitted that the guidelines set out by the Court of Appeal in the case of Mulele v DPP and Poini v DPP [1985-1986] SILR 145 whereby the courts in their sentencing of like-offenders should take into consideration the following; age disparity, abuse of position of trust, subsequent pregnancy and character of the girl herself.

CONSIDERATIONS

  1. I am grateful for the assistance by counsels through their submissions.
  2. I have taken the time to consider sentence in light of the authorities referred to by counsels relative to principles of sentencing, starting point, aggravating and mitigating factors.
  3. I note the mitigating factors advanced on your behalf by Ms Aisa.
  4. I note from submissions by Ms Aisa that your wife has breast cancer and is currently in Vella La Vella.
  5. Ms Aisa further submitted that ‘the Accused looks after his old parents at the village, also took responsible to look after the five children since their mother is sick, and is away. The Accused was very remorseful for his actions and made a reconciliation ceremony with the victim and his family. The reconciliation held at the victim’s family house. Families of two parties were presented at the time (2020). The Chiefs and a minister attended and witnessed the reconciliation. They are Chief Sikota, Chief Teddy Pavo, Chief Elijah and United church Minister Mr. Beckly Kahui. The Accused gave three custom money (Bakiha) to the victim and her family as compensation. The Accused was remanded at Gizo Correctional Centre sometimes in January 2020 and released on bail sometimes in March 2020. Then remanded again on 15 June 2023 until today.”
  6. I took all that into account.
  7. That does not take away the fact that what you did to the child was oppressive. It was also disrespectful, insulting and a grave betrayal to the community that have accepted and received you into their community. You lived among them and raised your children in the comfort of your home, away from your very own village in Guadalcanal.
  8. Yet, you turned around and violated one of their very own, a step daughter to you. The victim was attending school at the time of the offence.
  9. From the agreed facts, I found that the first incident occurred on the 7th October 2019 at 2:00pm, the victim had just arrived from school and went inside the room to change her school uniform. She changed her uniform and wore an under pant with a skirt and a shirt. While she was still in the room, you went inside and told her to remove her under pant and also told her to lay down faced up. So she submitted to your instructions. You were completely naked, standing next to her with your penis fully erect. You then knelt down, moved your body towards her and pushed your penis inside her vagina, you then had sexual intercourse with her until you ejaculated inside her vagina. The victim felt the pain when you had sexual intercourse with her.
  10. The second incident occurred on 10th October 2019 between 7:00 am and 8:00 am at Leona Village inside the room of their dwelling house. At that time the complainant was inside the room ready to wear he school uniform to go to school. As she was about to wear her uniform, the defendant came inside the room and told her to remove her under pant and told her to lay faced up. When she lay down the defendant removed his trouser, lay towards her and pushed his erected penis into her vagina and has sex with her until he was ejaculate inside her vagina. He then pulled out his penis, wore his trousers and went out of the room. The complainant did not tell anyone as she was afraid.
  11. The third incident occurred on 13th November 2019 at about 2:00 pm inside the room of their dwelling house at Leona Village Vella La Vella Island. At that time, the complainant has just arrived home from school. Only the defendant was there inside the house and he told her to go inside the room. She went side the room and the defendant told her to remove her under pant and told her to lady down faced up. He then removed his blue trousers, proceeded towards her and sucked her breast whilst touching her vagina with his hand, and then inserted his erected penis into her vagina and has sex with her until he ejaculated inside her vagina.
  12. The complainant did not see her period after the defendant has sex with her. On 9th January 2020, she went to Gizo Hospital and examined by Doctor James Niunimae and his observation were as follows:
  13. The victim got pregnant and gave birth to a baby girl. An innocent child was born and I remind myself not to attach any comment to the birth of an innocent child that emanated from your actions.
  14. I note the aggravating features as identified by counsels: age of victim, age disparity – 24 years (accused was 38 and victim 14), breach of trust, psychological and emotional effect on the victim, repeated commission on the victim in their own family home, subsequent pregnancy.
  15. Your actions caused the victim to break from school due to her pregnancy; what you did caused a long-lasting psychological harm on the victim.
  16. Your actions warrant an immediate and long custodial sentence.
  17. The prosecutions suggested a starting point of 8 years; Defence Counsel suggested the same (starting point of 8 years).
  18. The maximum penalty for this offence is life imprisonment. I note that Defence Counsel submitted 14 years as the maximum penalty. That might have been a typing error on her part as no such offence carries that penalty in the legislation.
  19. For the offending in the circumstances of this case, and for the reasons given in the sentencing remarks, I depart from the starting point suggested by both Counsels.
  20. I take note of the statement by Court which was highlighted by Counsel for the prisoner in this case. I agree. This is one case that given the circumstances, I should depart from the starting point submitted by both counsels.
  21. I will impose on you as a starting point of 18 years imprisonment. I find that the offence you have committed is serious and warrants a higher sentence. I find that the aggravating factors outweigh the mitigating factors. Your actions, in my opinion demonstrate that you have no regard for the sanctity of your marriage, for your children, the welfare and future of the victim and for the law. I will add an additional 5 years to your sentence making it a total of 23 years.
  22. This is one case that I consider does not deserve any consideration for deductions of time spent in custody.
  23. I find the mitigating factors submitted on your behalf by Counsel Ms Aisa convincing and I deduct 3 years from the total sentence.

ORDERS OF THE COURT

I make the following orders:

  1. Length of sentence imposed: 20 years imprisonment
  2. Pre-sentence period in custody to be deducted: Nil
  3. Time to be served in custody: 20 years

THE COURT
Hon. Justice Ronald Bei Talasasa Jr
PUISNE JUDGE

[1]HCSI-CRC 175 of 2020
[2] HCSI-CRC 467 of 2007
[3] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
[4] [2014] SBCA 22; SICOA-CRAC 12 of 2014 (17 October 2014)
[5]Criminal Appeal Case No. 30 of 2022 (On Appeal from High Court Criminal Case No. 94 of 2021)
[6] [2005] SBHC 74; HCSI-CRAC 324 of 2004 (21 June 2005)
[7] [2013] SBCA 19; SICOA- CRAC NO.13 of 2013
[8] [2008] SBCA 8; CA-CRAC 23 of 2007 (18 July 2008)
[9] [2008] SBCA 8; CA-CRAC 23 of 2007 (18 July 2008)
[10]Criminal Appeal Case No. 7 of 2022 (on Appeal from High Court Criminal Case No. 631 of 2020)
[11] [1986] SBHC 15; [1985-1986] SILR 214 (3 September 1986)
[12]Above n. 10.
[13] [2012] SBHC 31; HCSI-CRC 151 of 2011 (29 March 2012)
[14]Above n. 9
[15] [2002] EWCA Crim 2891 ((09 December 2002)) at para 29.
[16] [2011] SBHC 44; HC-SI CRC 331 of 2005, 454 & 455 of 2007 (30 June 2011)
[17] [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017)
[18] [2013] SBCA 9; CRAC 38 of 2012 (26 April 2013)
[19] [1988] HCA 67; (1988) 166 CLR 51
[20] [1988] SBHC 10; [1988-1989] SILR 121 (21 December 1988)
[21] [2017] SBCA 6; SICOA-CRAC 14 of 2016 (5 May 2017)
[22] [2018] SBCA 10; SICOA-CRAC 36 of 2017 (11 May 2018)
[23]Above n. 11.
[24] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
[25] [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013)
[26] [2017] SBCA 20; SICOA-CRAC 17 of 2017 (13 October 2017)
[27] [2013] SBCA 19; SICOA-CRAC 13 of 2013 (8 November 2013)
[28] [2013] SBCA 6; Criminal Appeal Case 27, 28, 35 of 2012 (26 April 2013)
[29]HCSI CRIMINAL CASE NO. 3 OF 2023
[30]HCSI CRIMINAL CASE NO. 474 OF 2021
[31]HCSI-CRC 175 of 2020
[32]Above n. 10
[33] [2017] SBCA 20; SICOA-CRAC 17 of 2017 (13 October 2017)
[34]Criminal Appeal Case No. 30 of 2022 (On Appeal from High Court Criminal Case No. 94 of 2021)

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