R v Lewa [2023] SBHC 92; HCSI-CRC 3 of 2023 (26 June 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Lewa
Citation:
Date of decision:	26 June 2023
Parties:	Rex v Losberry Lewa
Date of hearing:	9 June 2023
Court file number(s):	3 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Defendant having been convicted on the charge of persistent sexual abuse is sentenced to imprisonment for a term of eleven years and eight months. 2. The prison authorities are to take into account the time already spent in custody in calculating your release date. 3. The name of the victim and any identification of her is permanently suppressed.
Representation:	Ms M Mutukera and Ms G Waletofea for Crown Mr F Kama for the Accused
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	R v Liufirara [2023] SBCA 10, R v Soni [2013] SBCA 13, R v Ligiau and Dori [1986] SBHC 15, R v Gwali [2021] SBHC 97, Regina v Liva [2017] SBCA 20, R v Bonuga [ 2014] SBCA 22

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 3 of 2023

REX

V

LOSBERRY LEWA

Date of Hearing: 9 June 2023
Date of Decision: 26 June 2023

Ms M Mutukera and Ms G Waletofea for the Crown
Mr F Kama for the Accused

SENTENCE

Introduction

1. Losberry Lewa, you have been found guilty of one count of persistent sexual abuse. The incidents proved included the rape of your daughter when she was aged 16 and incest with the same daughter through 2021 and 2022 on a further 4 occasions. The Court found that on those occasions your daughter did not consent to the sexual intercourse and that you knew she did not consent. The maximum penalty for persistent sexual abuse is life imprisonment. You now appear for sentence.

Facts

2. The facts have been set out in the verdict. You were 38 on the first occasion. Your daughter was 16. Your daughter was asleep in her home. You woke her and demanded that she remove her trousers. She refused. She eventually complied out of fear. You had penile sexual intercourse with her. On three occasions you had sexual intercourse with her again, outside the house and on the final occasion you had sexual intercourse with her again in the family home.

Aggravating factors

3. There are a number of aggravating features. The first is the gross breach of trust. You are her parent and you violated her in her own home. A consequence of you being her father is that there is a significant age disparity between the two of you.
4. The nature of the charge is that the offending was repeated, not once but on a further four occasions, including further offending in the family home.
5. The Court has received a victim impact statement which provides a very concerning picture of a young woman who does not see or feel anything in her future. Although she has found her mother has harmed her self-confidence, your conduct has only made things worse for a young woman who now no longer attends school or has fun with friends. She is now limited to domestic activities.

Mitigating factors

6. There are no mitigating factors relating to the offending.

Personal Circumstances

7. It appears that you have no previous convictions. I phrase it in this way as the document headed ‘Identification and Antecedent Check’ indicates there is a previous conviction but does not identify what it is and the details provided could well relate to the matters currently before this Court.
8. You are currently aged 40 and the father of children. You are said to support your family by working in the garden and preparing copra. Your counsel says that as you have not offended again while on bail that you are unlikely to offend again and can continue to contribute to the community.

Discussion

9. You present as a totally self-interested person with little regard for others especially in your own family. Your offending has continued over a significant period of time. The Court has had the benefit of receiving detailed submissions from the prosecution and from your counsel. Your counsel has reviewed a number of cases that have come before this Court. The Court of Appeal in R v Liufirara CAC 30 of 2022 28 April 2023, reminded the Court of the need to apply the sentencing guidelines provided by the Court unless the circumstances of the case require a departure from such an approach. I do not consider the circumstances in your case warrant a departure from the guidelines set out in cases such as R v Soni [2013] SBCA 13. In Soni the Court of Appeal confirmed the approach taken by this Court in R v Ligiau and Dori [1986] SBHC 15. The Court confirmed a starting point in a contested case of rape to be 5 years before considering aggravating factors and mitigating factors.
10. The guidelines in Ligiau and Dori confirmed in Liufirara indicate that for the first incident a starting point of 5 years imprisonment would need to be increased to 8 years as you were convicted following trial and you are a person in a position of responsibility in relation to PW1. For the other aggravating factors in relation to that first incident especially the fact that the offending was in her own home at night I consider an increase of 24 months is appropriate.
11. Your offending was not limited to that first incident. A particularly aggravating factor is the repetition of the offending over a significant period of time. As in R v Gwali [2021] SBHC 97 I consider there needs to be an increase from the starting point to take account of the totality of your offending. In Gwali that increased starting point before considering mitigating factors was 13 years imprisonment. In your case I consider the increase should be to 12 years’ imprisonment.
12. The sentence to be imposed must provide a deterrence to you and to others who sexually victimize others particularly others in respect of who the offender is in a position of responsibility.
13. I have no doubt that your actions have caused lasting emotional trauma to her. The Court of Appeal in Regina v Liva [2017] SBCA 20 at paragraph [25] approved what they had said in said in R v Bonuga [2014] SBCA 22:
    • “There may have been no evidence that the victim suffered severe or lasting psychological harm. However, we consider that 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.”
14. From the increased starting point of 12 years’ imprisonment I then consider your personal circumstances. In Ligiau and Dori the Court said:
    • “In sexual offences as a whole, and rape and attempted rape in particular, matters of mitigation personal to the offender must have less effect on the sentence than in most other serious crimes.”
15. I have already found that there are no mitigating factors relating to your offending.
16. For your personal circumstances the fact that you appear to have no previous convictions can be given little weight because of your continued offending. By the time of the second incident you could not be said to have been of good character. I am satisfied that the prosecution proved you offended on 5 occasions. On two of those occasions you committed the offending in the home of PW1. I consider there should be no more than 4 months reduction to recognize your personal circumstances.
17. The final sentence then is 11 years and 8 months’ imprisonment. The prison authorities are to take into account the time already spent in custody in calculating your release date.

Orders

1. The Defendant having been convicted on the charge of persistent sexual abuse is sentenced to imprisonment for a term of eleven years and eight months.
2. The prison authorities are to take into account the time already spent in custody in calculating your release date.
3. The name of the victim and any identification of her is permanently suppressed.

By the Court
Hon. Justice Howard Lawry PJ