R v Lapi [2023] SBHC 67; HCSI-CRC 386 of 2018 (8 June 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Lapi
Citation:
Date of decision:	8 June 2023
Parties:	Rex v Fred Lapi
Date of hearing:	7 June 2023
Court file number(s):	386 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry, PJ
On appeal from:
Order:	1. The Accused is convicted and sentenced to 3 years’ imprisonment. 2. The authorities are to take into account the time he has been in custody in calculating his release date. 3. The name and identification of the complainant are permanently suppressed.
Representation:	Mr A Kelesi for the Crown Mr L Waroka for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal code (Amendment) (Sexual Offences) Act 2016 S 138 (1) (a)
Cases cited:	R v Tebitanga [2013] SBHC 24, R v Kaneta [2019] SBHC 52, R v Velomama [2020] 67, R v Ba'ai [2023] SBCA 9,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 386 of 2018

REX

V

FRED LAPI

Date of Hearing: 7 June 2023
Date of Decision: 8 June 2023

Mr A Kelesi for the Crown
Mr L Waroka for the Accused

SENTENCE

Introduction

1. Fred Lapi you have pleaded guilty to one count of committing an indecent act on a girl contrary to section 138(1)(a) and (b) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. The victim was a child and you were in a position of trust, being related to her through both her parents. The maximum penalty for such offending is 10 years imprisonment.

Facts

2. In March 2018 you were aged 39 and the victim was aged 1One evening you called her to go with you but she refused. You had been drinking alcohol. At around 1.00am while the victim was sleeping you climbed through her bedroom window. You asked the victim to follow you but she refused. You lay on the bed beside her and tried to force her to remove her clothes. She refused. You tried removing her trousers but she held on to them tightly. She lay face down and you tried to turn her over. You grabbed her breast and her buttocks. You used your finger to rub and touch her vagina. She eventually succeeded in pushing you away and she got away from you. You later returned and again tried to get her to go to the house where you lived. She ran away.

Deterrence

3. The prosecution correctly submit that this is a case where the Court must send a message to you and to others who may choose to behave as you have that sexual abuse of children is totally unacceptable and will be dealt with firmly by the Courts. There needs to be a sentence that is a deterrent for you and others.

Aggravating factors

4. As a person who is related to the victim on both sides of the family you were in a position of trust and you breached that trust.
5. I accept there was a degree of pre-meditation because of your persistence in trying to persuade the child to go with you before, during and again after the offending.
6. You violated the victim in her own home when she had been sleeping. She is entitled to feel safe there and safe from someone in your position. You made her vulnerable, invading her privacy and dignity.
7. There is the disparity in your ages.
8. You struggled with the victim to try to achieve your aims and to that extent there was a use of force.
9. You offended at night while intoxicated.

Personal circumstances

10. You are married with children. Four of your children live in Sikiana with your sister.
11. You are the bread winner in your family.
12. You have no previous convictions.
13. You have spent time in custody from your arrest on 22 April 2018 until your release on bail in June 2019. Your trial did not proceed in October 2019 when expected as it was a reserve trial and was not reached in the week allocated. You failed to appear in May 2020. There was a delay in proceeding as the country took precautions from the pandemic that swept the world with COVID – 19. Your counsel says there was a delay because of the difficulty in bringing witnesses from Sikiana. In April 2023 the Court issued a warrant for your arrest. That was executed on 1 May 2023 and you have been in custody since then. This means you have been in custody for a total of just under 15 months. It is clear that you breached bail on at least 2 occasions.

Mitigating factors

14. You have pleaded guilty to the offence and thereby saved the victim the trauma of re-living the ordeal through the trial. Your counsel submits that you are remorseful and have demonstrated this through offering 2 rolls of linen cloth to the victim and her family. It is difficult to reconcile this with your persistent behaviour.

Starting point

15. The Court is required to fix a starting point then adjust that starting point to take account of the aggravating factors and the mitigating factors. Your counsel has referred the Court to the cases of R v Velomama [2020] SBHC 67, R v Kaneta [2019] SBHC 52 and R v Tebitanga [2013] SBHC 24. He correctly says that all those were decided after the amendment to the Penal Code and to that extent are similar to your circumstances. In each case the final sentence was 2 years imprisonment after taking into account mitigating factors, so that the starting point was greater than that. I regard your offending as more serious than in any of those cases. I consider that taking a starting point at anything less than two years and six months would be inadequate and would not provide sufficient specific and general deterrence. The Court of Appeal in R v Ba’ai CAC 7 of 2022 28 April 2023 recently reviewed decisions relating to offending contrary to section 139 of the Penal Code as amended. That decision was concerned with a section that carried a much higher penalty, however the facts of your case are much more serious than in Ba’ai. That case involved a mature person touching a 13 year old girl in a situation of compliance and there was some an acknowledgement of some penetration of the genitalia though it appears not into the vagina. The Court took a starting point of 3 years imprisonment.
16. From a starting point of two years and six months imprisonment the serious aggravating factors require an increase of at least 24 months. From that point I must make an allowance for mitigating factors. For your plea and stated remorse I allow a reduction of 12 months.
17. While there has been a delay of 5 years since your arrest, you breached bail in 2020 and again in 2023. Having said that it is likely that the trial was delayed by the Crown having difficulty in bringing witnesses from Sikiana. I do not know when there was first an offer to plead guilty to the charge you currently face. Having said that section 10 of the Constitution requires a trial within a reasonable period of time. A delay of 5 years is not reasonable however you have been at liberty for most of that time. I will however give you credit for the delay. For your personal circumstances including the delay in finalising this matter you will receive a further 6 months reduction leaving a final sentence of 3 years imprisonment.
18. I repeat that you must understand that as a father yourself you have obligations to your family yet you selfishly ignored those obligations and caused harm to a person who was in custom your grandchild and your niece. There is no place in our society for such abusive behaviour.

Orders

1. The Accused is convicted and sentenced to 3 years’ imprisonment.
2. The authorities are to take into account the time he has been in custody in calculating his release date.
3. The name and identification of the complainant are permanently suppressed.

By the Court
Hon. Justice Howard Lawry
Puisne Judge