R v Dae [2023] SBHC 23; HCSI-CRC 134 of 2021 (19 May 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Dae
Citation:
Date of decision:	19 May 2023
Parties:	Rex v Derek Dae
Date of hearing:	11 May 2023
Court file number(s):	134 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia, PJ
On appeal from:
Order:	Court will impose a 9 years’ imprisonment sentence to act as deterrence for you and like-minded offenders placed in your shoes (male adult in a position of trust to the young vulnerable victim). The 9 years term will begin to run from the month of May 2022. Order accordingly. Please come out a rehabilitated person.
Representation:	Mrs Waisanau for the Crown Mr Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1) (a) [cap 26], S 136 D (2) (a), S 139 (1) (a)
Cases cited:	Rex v Liufirara [2023] Criminal Appeal Case No. 30 of 2022

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 134 of 2021

REX

V

DEREK DAE

Date of Submission: 11 May 2023
Date of Sentence: 19 May 2023

Mrs Waisanau for the Crown
Mr Kwalai for the Defendant

Keniapisia, PJ

SENTENCE

Introduction

1. Mr. Derek Dae, on the 28/04/2023, I convicted you of sexual intercourse with a child contrary to Section 139 (1) (a) of the Penal Code Act (Cap 26), as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 – hereafter called “the 2016 Act”. This offence carries a maximum punishment of life imprisonment (Section 139 (1) (a) of the 2016 Act). By that punishment, Parliament was saying that sexual intercourse with a child under 13 years committed by a person in a position of trust to the child is a very serious crime. The offence you are convicted of is considered contrary to community standards of decency. You have robbed a very young girl of her decency, dignity and virginity.
2. Sexual intercourse (vaginal licking – cunnilingus^[1]) is tantamount to intrusion into the sanctuary of the virginity and dignity of the 5 years old complainant (Sapibuana) who is your own relative and neighbour. The child complainant was born to a woman (Rita), who is related to you as a cousin sister. In custom or in law, it is considered an act of indecency for an uncle to lick inside the vagina of a girl closely related to him, let alone a 5 years old niece, as in your case.

Parliament took a strong decisive stand to protect women and girls against sexual abuse in the 2016 Act

3. The people of this country through their Parliament have strongly condemned this kind of sexual intercourse (vaginal licking) by adult men in positions of trust against very vulnerable young girls, by prescribing a punishment of life imprisonment. You should know that what you did to your niece (complainant) was wrong, unacceptable and indecent in custom, ecclesiastical or under the 2016 Act. Parliament has taken a decisive strong stand against the prevalence of sexual offending by the enactment of the 2016 Act. The 2016 Act introduced new sexual offences and increased the punishment. But it seems High Court is not taking serious attention by imposing lenient sentences for sexual offending under the 2016 Act. At the last sitting, Court of Appeal urged upon this Court to impose higher sentences for sexual offending under the 2016 Act, most especially offences under Section 139 (1). One way to achieve that is to use the sentencing guidelines set by the Court of Appeal in cases such as Pana (2013). So, I will focus on the sentencing guidelines Court of Appeal set out in Pana. I will not consider High Court comparative sentencing precedents for similar offending because High Court has been imposing very lenient sentences. That to me is not paying serious attention to a serious societal issue Parliament identified in the 2016 Act (issue of non-protection or inadequate protection of women and children). The Court of Appeal was very concerned about the High Court’s lenient sentencing attitude referring to it as “...manifestly inadequate sentences for sexual offending...” (Rex V Liufirara (2023) Criminal Appeal Case No. 30 of 2022, at paragraph 5 (28^th April 2023).

Starting point sentence and justifications

4. For your case, the starting point sentence I will give is 8 years (not disputed by defence). This is because the victim is below the consenting age (13 years) and the victim is a child (5 years) at the time of offending. Also, this is a contested case and the offence committed is against Section 139 (1) (a) – very serious – because Parliament prescribed life imprisonment as the maximum penalty – Section 139 (1) (a) of the 2016 Act. You have defiled a very young girl, your own relative and neighbour of her dignity. Facts showed that the family of the complainant were renting your parents’ house at Tulagi. Your small house is located at the back of their rented house.

Aggravating features will inflate the starting point sentence

5. Then I will inflate the starting point to 12 years, because of the presence of 4 very serious aggravating features namely – (i) very young tender age of the victim (5 years); (ii) disparity of age (you were 26 years and the victim was 5 years – difference of 21 years); (iii) you are in a position of trust^[2] to the victim (being her uncle - no one in his/her right mindset would think that you would do this to your own niece) and you reside very close to the victim’s family at the back of their rented house at Tulagi. Your house should be a “safe haven” for your niece. Instead you lied to her using a “paper bird”, attracted her into the privacy of your house and robbed her of her dignity. Fourthly there was (iv) psychological harm on the child and her parents, which I must take judicial notice of despite of no available evidence from an expert.

Mitigating factors

6. But then there are mitigating features, in your favour. There are 3 mitigating features only - (i) first time offender with no previous conviction; (ii) time spent in custody and (iii) you are a young man with the prospect for rehabilitation. For these I will deduct 3 years and sentence you to 9 years imprisonment. Crown submitted that you had a previous conviction but did not tender the evidence.

Conclusion and Orders

Court will impose a 9 years’ imprisonment sentence to act as deterrence for you and like-minded offenders placed in your shoes (male adult in a position of trust to the young vulnerable victim). The 9 years term will begin to run from the month of May 2022. Order accordingly. Please come out a rehabilitated person.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

---

^[1] Section 136 D (2) (e) of the 2016 Act.
^[2] Section 136 C (2) (c) of the 2016 Act.