R v Hare'e [2023] SBHC 72; HCSI-CRC 01 of 2023 (18 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Hare’e
Citation:
Date of decision:	18 August 2023
Parties:	Regina v Linston Hare’e
Date of hearing:	16 August 2023
Court file number(s):	01 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Accused is convicted and sentenced on the charge of persistent sexual abuse to a term of 10 years and 5 months imprisonment. 2. The time spent in custody is to be deducted from the sentence. 3. The name and any identification of the Complainant are permanently suppressed.
Representation:	Ms L Pellie for the Crown Mr S Weago for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016 S 142 (2),S 139 (2) Penal Code S 136 F (1) (a)
Cases cited:	R v Ligiau and Dori [1986] SBHC 15, Soni v Reginam [2013] SBCA 6, Pana v Regina [2013] SBCA 19, Regina v Gwali , Romwane [2021] SBHC 74, R v Kiap, R v Liva [2017] SBCA 20, R v Bonuga [2014] SBCA 22,Rex v Ba’ai [2013] SBCA 9

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 1 of 2023

REGINA

V

LINSTON HARE’E

Date of Hearing: 16 August 2023
Date of Decision: 18 August 2023

Ms L Pellie for the Crown
Mr S Weago for the Accused

SENTENCE

Introduction

1. Linston Hare’e you have pleaded to one count of persistent sexual abuse contrary to section 142(2) of the Penal Code as amended by section 5 of the Penal Code (Amendment)(Sexual Offences) Act 2016. The charge alleges that there were five occasions in 2022 when you raped your step daughter when she was 14 years old, each being an offence against section 136F(1)(a) and (b) of the Penal Code as amended and each having a maximum penalty of life imprisonment. You had previously pleaded not guilty and your trial was to begin on 14 August 2023. On Friday 11 August 2023 you asked to be re-arraigned and following an arrangement with the prosecution where one allegation within the charge was removed, you pleaded guilty. The maximum sentence for the charge to which you have pleaded guilty is life imprisonment.

Facts

2. The Complainant is your step daughter. She had been adopted by another couple. In January 2022 you and others went to Ugi, in Makira/Ulawa Province. In March 2022 you and your wife returned to Honiara with your son and the Complainant. There were 5 occasions through July and August 2022 when you were at your home in Forest Valley with the Complainant when you raped her. On the first occasion you told the Complainant to massage you. You laid the Complainant on your bed and removed her clothes. You sucked her breasts and pushed your penis into her vagina. She did not consent to the sexual intercourse and was crying. You knew she did not consent. You told her to not tell anyone.
3. On four further occasions at the house you raped her. You would suck her breasts and push your penis into her vagina. She would be crying as you raped her. You would tell her to tell nobody about it. A week after the last rape the Complainant ran away and reported what had happened to the Police. Two days later the Complainant was medically examined and it was found that she had contracted a sexually transmitted disease.

Personal Circumstances

4. You are described as being aged 38 at the time of the offending. Your mother is still alive in Makira/Ulawa and is supported by you. You drive a taxi and sell betelnut to support your family. You do not have previous convictions. I note that you were on bail but that bail was revoked following an allegation of interfering with the principal prosecution witness. Your counsel says you plan to undertake a reconciliation with the Complainant.

Aggravating Factors

5. There was a gross breach of trust. You were her stepfather and you destroyed the trust placed in you by the Complainant, by your family and by your community.
6. The Complainant was aged only 14 and there is an age disparity of 14 years are matters of aggravation.
7. You have caused both physical and psychological harm to the Complainant.
8. Although repetition of the offending is part of the charge, you have offended against the Complainant on 5 separate occasions.

Mitigating Features

9. You have pleaded guilty but not at an early occasion. That plea, although late has saved the Complainant the trauma of reliving the abuse she suffered. It is an acknowledgement of the harm you have done to her. However until you pleaded guilty she understood that she would need to give evidence in Court about what you did to her.
10. Your counsel says you are remorseful. I give you some credit for that, however you continued to offend over a protracted period.
11. Similarly your counsel says you are a first–time offender. I must balance that against your repeated offending through July and August 2022.
12. Your counsel has submitted that you co-operated with the Police and are of good character. Co-operation with the Police is not a mitigating factor, it is the absence of what would otherwise potentially be an aggravating factor. So far as good character is concerned, that can receive limited credit because your offending was repeated. I accept however that the offending was at a time you had no previous convictions.

Purpose of Sentencing

13. I must hold you accountable for the harm you have done to the Complainant, your family and the community. The Court must send a message to you and those in the community who sexually abuse children. Accordingly the sentence must address both a need for specific deterrence and for general deterrence.

Authorities

14. In R v Ligiau and Dori [1986] SBHC 15 the Court set the tariff for charges of rape. For a contested rape with no aggravating or mitigating factors the starting point is 5 years’ imprisonment. 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.”
15. The guidance given in Ligiau and Dori was approved in Soni v Reginam [2013] SBCA 6 where the Court of Appeal considered further aggravating factors including the repetition of the offending. The Court of Appeal in Pana v Regina [2013] SBCA 19 also provided guidance to the Court in cases involving sexual offending against children. The Court 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.”
16. It is clear that had you been appearing for sentence on just the first incident, the starting point before considering mitigating factors would be in excess of 8 years’ imprisonment, taking into account the gross breach of trust, the age of the complainant and the fact that the offending was in the sanctity of the family home and the contraction of a sexually transmitted disease would require a term around 10 years imprisonment before considering mitigating factors.
17. In Regina v Gwali HCSI –CRC 175 of 2020 the High Court dealt with a guilty plea by a 49 year old offender to a charge of persistent sexual abuse of a 12 year old girl. The Court said the starting point without any aggravating or mitigating features in a non-contested case is eight years. The offender was the stepfather of the complainant. There were three instances of sexual abuse. The Court took a starting point of 13 years. Your case has some more serious features than that of Gwali because of the greater number of times you offended and the contraction of the sexually transmitted disease. The Complainant in Gwali was younger than in your case however the three individual incidents were less serious than in yours.
18. Your counsel also referred to R v Romwane [2021] SBHC 74. This case, although it is one of persistent sexual abuse also involved a willing relationship between a 24 year old offender and 13 year old girl. The individual instances were not rape. There were four occasions over an eight month period when sexual offending occurred. It is unclear what the starting point was. This case is quite different from yours. The individual instances were rapes of your step daughter. You were a 38 year old stepfather who has engaged in sexual abuse over a two month period of time with his step daughter when she was 12 and 13, leaving her with both psychological and physical harm including
19. The Court has considered R v Kiap HCSI 348 of 2021, 17 March 2023. The offender was found guilty of having sexual intercourse with a 14 year old girl. The offender was aged 65 but was not in the same position of trust as you are. There were four instances of offending against section 139(2) of the Penal Code. Each incident was serious with one in particular being in reality an allegation of rape. The Court took a starting point of 13 years’ imprisonment. Although that case was very serious your case has some more serious factors because you are the stepfather of the Complainant along with the other matters of aggravation already mentioned.

Discussion

20. Applying the principles set out in Pana it is necessary to fix a starting point then make an adjustment to reflect the aggravating factors. From this position an allowance is made for matters in mitigation.
21. As the Complainant’s step father you were in the position of a parent. You were in a position to tell her what to do. Rather than nurture her you sexually abused her over a period of up to two months. You have left her with a sexually transmitted disease. It is not known what the long term effect of that will be. Our Court of Appeal has recognized the long term harm that sexual abuse causes in children both emotionally and psychologically. In R v Liva [2017] SBCA 20 the Court of Appeal adopted what it had said in R v Bonuga [2014] SBCA 22. At paragraph [25] the Court 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.
    • We confirm that statement and take that factor into account.”
22. I consider that the starting point set out in Gwali is appropriate in your case. I take a starting point of eight years imprisonment and to reflect the repeated conduct and other aggravating factors increase that starting point to 13 years’ imprisonment.

Mitigation

23. You have pleaded guilty although not at an early opportunity. For your guilty plea together with limited credit for your stated remorse (limited because of your repeated conduct), I reduce the sentence. You are not entitled to much credit at all for having no previous convictions because after the first occasion you chose to continue to offend. In Rex v Ba’ai [2023] SBCA the Court of Appeal in dealing with sentencing for sexually offending on a child, said at paragraph [17]:
    • “However, as this Court has said previously, the personal circumstances of an offender play little part in mitigation in offending of this sort.”
24. For all the mitigating factors including your stated remorse and your guilty plea, taking into account when it was entered, and making a further adjustment for your personal circumstances I reduce the sentence by 2 years and 7 months.

Orders

1. The Accused is convicted and sentenced on the charge of persistent sexual abuse to a term of 10 years and 5 months imprisonment.
2. The time spent in custody is to be deducted from the sentence.
3. The name and any identification of the Complainant are permanently suppressed.

By the Court
Hon Justice Howard Lawry
Puisne Judge