R v Ringo [2024] SBHC 120; HCSI-CRC 290 of 2023 (31 July 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Ringo
Citation:
Date of decision:	31 July 2024
Parties:	Rex v James Ringo
Date of hearing:	9 April 2024
Court file number(s):	290 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. The defendant is hereby sentenced to 13 years imprisonment for rape. 2. The defendant is also sentenced for 2 years for Indecent Act, to run concurrently to count 1, total 13 years imprisonment. 3. Time spent in custody be deducted from the head sentence.
Representation:	Ms M Cleven for the Crown Mr D Kwalai for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2019 S 136F (a), (b) , S 139 (2) (a)
Cases cited:	Bara v Reginam [2018] SBCA 10, R v Sinatau [2023] SBCA 38, Pana v R [2013] SBCA 19, R v Bonuga [2014] SBCA 22, R v Liufirara [2023] SBCA 10, R v Ligiau and Dori [1986] SBHC 15

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 290 of 2023

REX

V

JAMES RINGO

Date of sentencing Submissions: 9 April 2024.
Date of Sentence: 31 July 2024.

Ms M Cleven for the Crown
Mr D Kwalai for the Defence

SENTENCE

Faukona, DCJ.
Introduction.

1. The defendant Mr. James Ringo was indicted for two counts of immoral sexuality against a child. One is Rape contrary to section 136F (1) (a) (b) of the Penal Code as amended by 2016 Act. Rape carries the maximum penalty of life imprisonment.
2. The second count is Indecent Act contrary to section 139 (2) (a) of the Penal Code as amended by 2016 Act. The maximum penalty for indecent act is 7 years imprisonment.
3. On 22^nd March 2024, after trial, the accused was found guilty on both counts. The issue now is to determine an appropriate sentence.

Facts of the case.

4. On 13^th January 2023, at Bolitei Village, Havulei District, Isabel Province, in the afternoon between 1200 hours and 1600 hours, the victim Miss Hilma Annie Lucy (5 years), Joel Boinage and Emily Hardy were on the beach track playing. It was a Friday afternoon.
5. Whilst playing the defendant Mr. James Ringo, also from Bolitei village, approached the children. First, the defendant called Miss Emily Hardy to collect a necklace from him but Miss Emily Hardy refused. Then he called the victim to get the necklace. She did, and the next act the defendant did was that he carried her on his back and walked towards the mangroves (a place used for toilet).
6. At the mangroves, he made the victim sat on a log. Then he laid her down facing up. At that time, he pushed his finger into her vagina. She was scared and cried because there was pain in her vagina.
7. The defendant also showed his ass including his penis to the victim.

Sentencing guidelines.

8. The Court of Appeal in Bara v R^[1], sets out the appropriate guidelines where available the sentencing judge should identify a starting point.
9. In the nutshell, following the sentencing structure outline in the above case and published, sentencing remarks should include, interalia, the identification of starting point, aggravating features, mitigating features, and how they affect the starting point.
10. Reference should be made to the effect, if applicable, of an early plead guilty. Where discount given should be indicated. Where no discount is given reason for that decision should appear in the remarks.
11. Where no allowance is to be made for pre-sentence period in custody, the Court should give reason.
12. Finally, the application of totality principle of sentencing to ensure the end result reflect the criminality involved.

Starting point.

13. In R v Sinatau^[2], the Court of Appeal has laid down the starting point for offences under section 136F and section 139 of the Penal Code, as amended in 2016, involving children under the age of consent, in a non – contested matter, is 8 years.
14. From the time Pana v R^[3] was decided until R v Sinatau^[4] there was no starting point set out by any of the courts in respect of rape where the child is below the consenting age and in a circumstance where the charge was contested in a trial.
15. Given the prevalent circumstance, even if I am wrong, I am assisted by the case of Pana v R^[5]. In Pana case, the facts are almost similar to the current case. In Pana case the victim was aged 3 years and 7 months, while the victim of this case was 5 years at the time of offending.
16. In the Pana case, there was penetration of the penis, whilst in the current case there was penetration by the defendant’s finger into the vagina of the victim.
17. There are other similarities and differences that will be revealed later in this sentence.
18. In this case the defendant was charged for rape and in the Pana case the defendant was charged for defilement under the old Act, section 142 (1) of the Penal Code.
19. In the Pana case at paragraph (13) the Court of Appeal stated, “That there can be no doubt that offences of defilement frequently present a close parallel to offences of rape and the maximum penalty under section 142 (1) is life imprisonment is the same as that of rape”.
20. The trial judge in Pana case stated, “having considered that an offence against a child is more serious than the same case against an adult attracts a higher starting point. He then decided that the appropriate starting point was 10 years.
21. Whilst the court of appeal do not wish to interfere with the final sentence, stated that the proper reason for a higher starting point is the fact the offence was committed against a child. That reason is verily adopted in this case.
22. The full facts of the case in Pana is similar to the current one. For instance, the age of the child, the penetration into the vagina, the suffering of the victims medically, psychological and trauma effect. In Pana case the victim did not relate any evidence in the witness box, though an attempt was made. In the current case the victim was called into the witness box under video link and related her full evidence. She was cross-examined and eventually completed her evidence in court.
23. With that background circumstances and the seriousness of offending, I therefore set starting point of 8 years to affect a full contested matter.
24. For the second count, perhaps a starting point should be 2 years.

Aggravating features.
Very young age.

25. The age of the victim was 5 years old at the time of offending. In Pana V R^[6], “the actual age of the victim should still be taken into account as a possible aggravating factor over and above that. It would not amount to double accounting because it is the fact the victim is a child which brings into eight years starting point and so the actual age may be considered as an additional factor. The principle that applies is that, the aggravating effect on sentence will usually be greater the younger the child. The significant consideration that any sexual molestation of a child below the consent age, 5 in this case, puts the child at a very high risk of being horrifically injured and the trauma she would encounter for the rest of her life. Her mental capacity and health are expected to be deteriorated to some worst level.
26. The age disparity is another aggravating aspect. The defendant was 37 years and the victim was 5 years, age disparity of 32 years. It reflects the defendant; an adult was so destitute to have sex with a child. Nobody knows what benefit would he achieved out of it, otherwise it was a complete offensive to the dignity and humanity of a child.
27. As a result of the sexual molestation, the victim suffered injuries to her vagina. The medical evidence reveals there was redness and bruises located on both labia minoras and tender on touch. The vagina of the victim was expanded according to the defendant’s finger. The nurse relate that the vagina of the victim should not have an opening as she reported, considering the age of the child.

Abuse of trust.

28. The defendant and the victim’s mother are first cousins. In custom the defendant is the victim’s uncle. By committing the offence to his niece is abusing the trust vested on him. He should be an uncle looked upon, and trusted to provide security and care to the victim instead he breached that trust. He was clearly overwhelmed by evilness and inconsideration about his niece and her age as a child. The issue of this sort is difficult to comprehend.

Trauma and Psychological impacts.

29. Indeed the offending had caused trauma and psychological impacts on the victim and her family. In R v Bonuga^[7] the Court of Appeal stated, “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”. See also R V Liufirara^[8]. In this case, I have taken judicial notice of any impact of trauma and psychological harm to the victim.

Premeditation.

30. The facts have clearly narrated that, at trial the defendant called another girl whose age is bit bigger than the victim to go to him, but she refused. Unfortunately, he capitalized on the tender age of the victim who responded without knowing what will happen to her and eventually became the victim of rape.
31. By those facts, it implied the defendant had pre-planned to molest any child that may come his way. He must have been fantasizing himself all day and imaging which child will fall a prey to him. It happen to be the victim of 5 years.
32. There is evidence he was drinking that day. Consumption of alcohol has never been rebutted. This was consumed prior to offending, perhaps to make him brave in speech. Inferences can be drawn as exactly what the defendant intended to do and he did carry out his strategy whilst under the influence of alcohol. This is an aggravating factor which this court has considered.
33. Having considered all the aggravating features and the seriousness they present, as facts against the defendant, I therefore accelerate the starting point by 5 years, making it 13 years altogether. I concur to paragraph (26) of the Pana case which the Court of Appeal stated, “that the very young age of the complainant is a serious aggravating feature, which in itself, should increase the sentence substantially over the starting point.

Mitigating features.

34. There is no mitigating factor submitted by the counsel for the defendant. However, the crown had submitted two possible mitigating factors.
35. That the defendant is a first-time offender, and I accept that. However, it has little bearing as a mitigating factor for sexual offences cases, see R v Ligiau and Dori^[9].
36. Secondly the court to consider personal circumstances of the defendant. Again, in the case of R v Ligiau and Dori^[10] above, the court stated, “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 most other serious crime.
37. With the discussions on the aggravating issues as submitted by the Crown, and nothing from defence, I therefore reluctant to reduce the sentence because there was no mitigation at all. Therefore, the head sentence of 13 years stands.
38. In respect to count 2 Indecent Act I impose a sentence of 2 years to run concurrently to count 1. However, period served in custody be deducted from the head sentence.
39. This sentence reflects a serious call for deterrence, both personal and community at large. Should the defendant ever wish to repeat the same when he eventually discharges, he will be dealt with more seriously than now. The same applies to any member of the community or at large.
40. This sentence marks the gravity of the offence. And it is emphasized to reflect public disapproval. It also serves as a warning to others and to punish the offender and to protect women and girls in the communities.

Orders:

1. The defendant is hereby sentenced to 13 years imprisonment for rape.
2. The defendant is also sentenced for 2 years for Indecent Act, to run concurrently to count 1, total 13 years imprisonment.
3. Time spent in custody be deducted from the head sentence.

THE COURT.
Hon. Rex Faukona.
Deputy Chief Justice.

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^[1] [2018] SBCA 10; SICOA – CRAC 36 of 2017 ( 11 May 2018)
^[2] [2023] SBCA 38; SICOA – CRAC 9027 of 2023 (13 October 2023)
^[3] [2013] SBCA 19; SICOA – CRAC 13 of 2013 ( 8 November 2013)
^[4] Ibid (2)
^[5] Ibid (3)
^[6] Ibid (3)
^[7] [2014] SBCA 22; SICOA – CRAC of 2014 (17 October 2014)
^[8] Criminal Appeal Case No. 30 of 2022.
^[9] [1986] SBHC 15; (1985 – 1986) SILR 214 (3 September 1986)
^[10] Ibid (7)