R v Kiap [2023] SBHC 6; HCSI-CRC 474 of 2021 (17 March 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kiap
Citation:
Date of decision:	17 March 2023
Parties:	Rex v Philip Kiap
Date of hearing:	15 March 2023
Court file number(s):	474 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:
Representation:	Ms L Pellie for the Crown Mr A Tinoni for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Regina v Liva [2017] SBCA 20, Regina v Kyio [2004] SBHC 90, Soni v Reginam [2013] SBCA 6, Pana v Regina [2013] SBCA 19, Regina v Gwali [2021] SBHC 97, Laui v Director of Public prosecutions [1987] SBHC 4, Alu v Regina [2016] SBCA 8
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 474 of 2021

REX

V

PHILIP KIAP

Date of Hearing: 15 March 2023
Date of Decisions: 17 March 2023

Ms L Pellie for the Crown
Mr A Tinoni for the Defendant

Lawry; PJ

SENTENCE

Introduction

1. Philip Kiap, you have been found guilty one count of persistent sexual abuse of a 14 year girl. You have also been found guilty of two counts of doing an indecent act in the presence of two separate girls who were each aged 6 years at the time. The offences of doing an indecent act each arose out of the offending relied on in count 1 in that while sexually abusing the first complainant you exposed your genitalia to the six year olds. The offending occurred in October and November 2017 and came to the attention of the Police in April 2018. All the offences were committed on the same victim over a 12 day period. You now appear for sentence.

Facts

2. PW 1 gave evidence of 4 occasions when you sexually abused her. On one occasion she was lying in a hammock babysitting her infant sister. Another child was sitting close by when you sexually violated her. She was crying but you continued to have sexual intercourse with her until you were interrupted by another woman who called out. On another occasion PW1 she was with PW2 and PW3. She was in a tree collecting fruit. You spoke with PW1 and PW2 exposing your genitals to them. You made PW1 lie down and again had sexual intercourse with her. She was struggling and crying. On another occasion you saw PW1 near a building used for drying breadfruit. When you learned that her mother was fetching water you told PW1 to get betelnut from her mother’s basket. PW3 was also there. You told PW3 to go into the house but she refused. You then removed your clothes and made PW1 lie down. You had sexual intercourse with her. PW3 confirmed the evidence of PW1 that PW1 was crying as you abused her. You told them they must not tell their mother and offered to give them money. On another occasion you were at a house belonging to another person. The house had a cross beam. You used your shirt to tie the wrists of PW1 together. You put a gag in her mouth tying it behind her head. You hung her by her arms from the cross beam. You pushed fingers into her vagina then your penis into her vagina having sexual intercourse until you ejaculated.

Personal circumstances

3. Your counsel says that you are a first offender and at the time you were 63 years old. He says you have been a law abiding citizen. I put to one side the evidence led at trial that you had previously been in prison for alcohol related matters. He says you are now old and unlikely to re-offend. He described your offending as a mistake. Your actions could not be described as a mistake they were persistent sexual abuse of a child on several occasions. The long lasting effect of such shocking violations of someone who looked to you as a provider and protector cannot be understated. You demonstrated power and control over someone who could not protect herself from you.

Aggravating factors

4. The Crown points to the age of the victims and the disparity between your age and theirs. The Crown also points to the repetition of offending, the clear breach of trust, the use of violence and your offending was in the presence of PW2 on two occasions and PW1 on another. On a third occasion it was in the presence of a child aged between 2 and 5 and while the infant sister of PW1 was sleeping beside her.
5. The prosecution points to the psychological trauma that must have been and continues to be endured. In Regina v Liva [2017] SBCA 20 the Court of Appeal said:
   • “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.”

Your case is one where the Court considers such psychological trauma cannot be ignored.

Mitigating features

6. I record that you are said to have no previous convictions and have been of good character. For a conviction of persistent sexual abuse less weight can be placed on that than in many other offences as the offending has been on a number of occasions. You certainly cannot claim good character after the first time you violated PW1.
7. The defence points to the delay in this matter being heard. You were charged in 2018 and did not have your trial for more than 4 years. Most of the delay was for reasons beyond the control of the Courts as the world struggled with putting measures in place to protect the community from COVID-19. You were not committed to the High Court for trial until August 2021. There was an outbreak of COVID-19 in Solomon Islands at the start of 2022 that delayed circuit to Temotu. It is not clear why it took from 2018 until August 2021 to be committed. You were on bail for most of that time. As the High Court said in Regina v Kyio [2004] SBHC 90:
   • “I have pointed out that if delay is to be described as unreasonable, then there must be sufficient details placed before the court. The court cannot simply assume or take for granted that because the period was something like 9 years or 12 years that therefore delay was unreasonable. It must be justified or explained as it is vital to the process of sentencing. Unless the details are before the court it cannot make an informed decision one or the other as to what weight to attach to the element of delay. I accept though that in the absence of anything else and with what little has been submitted the substantial delay in the timely prosecution of this case cannot be laid at the feet of this defendant.”

Principles of Sentencing

8. In imposing sentence, I must take into account the need to hold you accountable for the harm that you have done to the Victim and to the community. You need to understand the harm you have caused. 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 also need to provide for your reintegration into the community and for your rehabilitation.
9. I must bear in mind the seriousness of this type of offending and the need for consistency in sentencing levels. To that end the sentence must provide both specific deterrence for you and general deterrence for others in the community. The children of Solomon Islands are our future and need protection from those like you who prey on them for your own sexual gratification and control.

Starting point

10. Counsel have referred to a number of authorities. In relation to the count of persistent sexual abuse the Court is assisted by Ligiau and Dori which was affirmed by the Court of Appeal in Soni v Reginam [2013] SBCA 6.
11. 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.”
12. The Court went on to discuss matters of aggravation. The Court said:
    • “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.
    • Where anyone or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.”
13. In Pana v Regina [2013] SBCA 19 the Court of Appeal discussed the offence of defilement. At paragraph [17] the Court said:
    • “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.”
14. The Victim was just 14 years old. The maximum penalty for the offence is life imprisonment. Had the offending been simply the occasion where you bound and gagged her hanging her by the arms from the cross beam and violating her with your fingers then with your penis, a starting point of 8 years would need to be increased to take account of the aggravating features associated with that offending. Your offending is much more than that however. Your offending was repeated, it was in the presence of children two of whom were aged 6 and another was between 2 and 5 years.
15. The Crown has referred to Regina v Gwali [2021] SBHC 97 which involved persistent sexual abuse the Chief Justice by a 49 year old stepfather of a 12 year old girl the Chief Justice took a starting point of 13 years. The offending in that case continued for a long time and the victim was younger than PW1 at the start of the offending. However the violence you used in your offending, the offending in the presence of other young girls are matters of considerable aggravation.
16. Your counsel has referred to a number of other cases involving defilement. Those cases are largely not helpful because of the vastly different circumstances. Yours is not a case of two young people in a mutually consensual relationship. Yours is persistent abuse of power of a most serious kind. I consider the Court of Appeal in Pana and the decision of Gwali provide the most assistance.

Discussion

17. In structuring the sentence I am mindful that the offending was over a period of two months but the offending involved three victims.
18. The authority regarding the sentencing for more than one offence is Laui v Director of Public Prosecutions [1987] SBHC 4. The Court 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 them 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 should properly be made concurrent.”

Later the Court said:

• “Where concurrent sentences have been passed because of the single transaction principle, the court must ensure that the gravity of the offence is properly represented by the sentence for the principal offence.”

19. Laui was approved by the Court of Appeal in Alu v Reginam [2016] SBCA 8. When confirming that concurrent sentences are appropriate for offences arising from a single transaction, the Court of Appeal also confirmed that the repetition of an offence on the same victim is a matter of considerable aggravation. I remind myself of the comments from the Court in Laui, that a series of assaults on the same person even though spread out over a lengthy period of time, should properly be concurrent.
20. Your offending was not on a single victim however it did arise from the offending against PW1. In these circumstances I propose treating the offending as a single transaction although the repetition of the sexual abuse and the sexual offending in the present of the other young girls is a matter of considerable aggravation. For the offence of persistent sexual abuse I take a starting point of 13 years imprisonment to take account of all the aggravating features. The offending involving hanging PW1 from the cross beam by her bound arms requires a starting point that could not be less than 10 years imprisonment. For totality of the offending there must be an uplift for the other matters of aggravation.
21. Your stated remorse and eventual acknowledgement of your offending, your previous conduct, the delay in this matter proceeding to trial and lastly your present age are matters which persuade me to reduce that sentence. Placing emphasis on your present age and the probability that the sentence may be harder on you than on a younger person I allow a total reduction for all mitigating features of three years and six months. The sentences for counts 2, 3 and 4 are one year imprisonment on each count. Those sentences are concurrent with each other and concurrent with the sentence on count 1, making a final sentence of nine years and six months.

Orders

1. The Accused is convicted on counts 1 and sentenced to 9 years and 6 months’ imprisonment on that count.
2. The Accused is convicted and sentenced to 1 year imprisonment on each of counts 2, 3 and 4.
3. The sentences for counts 2, 3 and 4 are concurrent with each other and concurrent with the sentence on count 1. Making a total sentence of 9 years and 6 month’s imprisonment. The time already spent in custody is to be taken into account as part of this sentence.
4. The names and any identification of the three victims are permanently suppressed.

By the Court
Hon. Justice Howard Lawry PJ