R v Handi [2023] SBHC 66; HCSI-CRC 582 of 2022 (26 May 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Handi
Citation:
Date of decision:	26 May 2023
Parties:	Rex v Eleveti Handi
Date of hearing:	19 May 2023 (Written Submission)
Court file number(s):	582 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Court will impose a 7 years’ imprisonment sentence to act as deterrence for you and like –minded offenders placed in your shoes (step grandfather to the infant girl victim). You are also entitled to a deduction of pre-trial custody time. The Correctional Authority will know this for calculation of further reductions. Please come out a rehabilitated person.
Representation:	Mr Tonowane 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), S 136 D (2) (a), S 139 (1)
Cases cited:	R v Liufirara [2023] SBCA 10

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 582 of 2022

REX

V

ELEVETI HANDI

Date of Hearing: 19 May 2023 (Written Submission)
Date of Sentence: 26 May 2023

Mr Tonowane for the Crown
Mr Kwalai for the Defendant

Sentence

1. Mr Eleveti, on the 31/3/2023, I convicted you on the charge of having sexual intercourse, with a child under 13 years contrary to Section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act (Act No 13 of 2016) – hereafter referred to as “the 2016 Act”. I convicted you on your entering of an early guilty plea to Count No. 3. For Counts No. 1 and 2, I acquitted you, because I was not satisfied beyond reasonable doubt with the evidence produced against you.
2. Because you entered an early guilty plea, I was not entirely sure what type of sexual intercourse, you pleaded guilty to. Sexual intercourse can vary from penetration to touching to licking and so forth. The particulars of offence show that, you Mr Eleveti of Bulolo village, Simbo Island, Western Province on an unknown date between 1^st March 2022 and 18^th July 2022, underneath a dwelling house at Bulolo village, did have sexual intercourse, with Dores Quine, a child under 13 years, being only 3 years old.

Type of sexual intercourse in Count No 3 can be deduced from Mr Eleveti’s oral evidence and Exhibit “PE 3” admitted by consent

3. Defendant say in oral evidence that he touched the private part of the child complainant, underneath his house (Count No 3) when reaching out for his mobile phone. When I consider this piece of evidence against the doctor’s report in “PE 3”, I have come to the conclusion, that defendant was intentionally or deliberately pushing his fingers (Kokoniri^[1] in Simbo language), into the vagina of the child complainant. A mobile phone cannot logically be placed inside the clitoris or the vagina of a girl, let alone the victim. The doctor’s report noted :-
   • “That her grandfather (step) has on multiple occasions inappropriately touched and fiddled with her genitals (vagina)”.
   • “Bruises were noted on the clitoris and clitoral hood. Bruises were also noted in the vagina vault at 3 o’clock, 6 o’clock and 9 o’clock...”
4. I am satisfied beyond reasonable doubt that the sexual intercourse type here, was the penetration of the victim’s genitalia or clitoris by the defendant’s fingers (as defined in Section 136 D (2) (a) of the 2016 Act). That sexual intercourse type or act is in my considered view also tantamount to an indecent act, by definition, because it is an act contrary to community accepted standards of decency.
5. Mr. Eleveti you have intruded into the sanctuary of the victim’s virginity and dignity by your sexual intercourse act of moving your fingers inside the clitoris of the vagina of the victim. These are the kinds of indecent, sexual or immoral act that Parliament intended to criminalise under the 2016 Act. And what’s worst is that these kinds of offending takes place in the home, by men in positions of trust, over vulnerable women and girls. Homes are supposed to be a “safe haven” for women and girls. You committed this crime underneath your house at Bulolo village. Your house should be a “safe haven” for your step granddaughter (victim/complainant).

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

6. The people of this country through their Parliament have spoken out strongly against this kind of sexual offending by 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 step-granddaughter (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. Parliament did this by introducing new sexual offences and increasing the punishment in the 2016 Act. But it seems that this Court was not taking serious attention because the High Court has been imposing lenient sentences for sexual offences under the 2016 Act. At the last sitting, the 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 that Parliament identified in the 2016 Act (issue of non-protection or inadequate protection of women and girls/children). Court of Appeal was very concerned about this 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

7. For your case, I will put the starting point sentence at 8 years (agreed by defence) because the victim is below the consenting age (13/16/18 years) and the victim is a child (only 3 years) at the time of offending. Although you pleaded guilty to one count, you still had a contested trial because you denied the two other counts. Your early guilty plea would be considered in mitigation. Additionally, the offence committed is against Section 139 (1) (a) of the 2016 Act – very serious - because Parliament prescribed life imprisonment as the maximum penalty. You have defiled an infant, your own relative (your step granddaughter). You all live together as a family at Bulolo village, on Simbo Island, Western Province.

Aggravating features will inflate the starting point

8. 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 (3 years); (ii) disparity of age (you are 66 years and victim a small girl of 3 years) – age difference of 63 years; (iii) you are in a position of trust to the victim being her step grandfather (who in his/her right mindset would think that you would do this to your own step granddaughter) and you reside in the same village, at Bulolo. So, your house or your body or you should be a “safe haven” for your infant step granddaughter. You should be somebody to whom your step granddaughter will run to for care, love and affection in their purest forms. Instead you robbed her of her dignity and innocence, underneath your house. Fourthly (iv) there was 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

9. But then there are mitigating features in your favour. There are 3 mitigating factors namely – (i) early guilty plea to the third count; (ii) first time offender with no previous conviction and (iii) your personal circumstances. Though personal circumstances are matters I should give less or no consideration to, I will still give credit to your elderly age being an elderly man of 66 years. I observed that you are becoming fragile with your physical aging body. For the second and third mitigating features, I will discount 1 year each. For your early guilty plea, I will give a discount of 3 years because an early guilty plea brings 3 benefits to all – (i) shows you are remorseful, (ii) saves court time and (iii) victim did not have to go through the trauma in giving evidence in court about the third count.

Conclusion and Orders

10. Court will impose a 7 years’ imprisonment sentence to act as deterrence for you and like –minded offenders placed in your shoes (step grandfather to the infant girl victim). You are also entitled to a deduction of pre-trial custody time. The Correctional Authority will know this for calculation of further reductions. Please come out a rehabilitated person.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Kokoniri in Simbo language means you inserted your finger into the victim’s vagina and moved your fingers inside her vagina (see also footnote 1 in the verdict delivered on 31/03/2023).