R v Pao [2024] SBHC 123; HCSI-CRC 369 of 2023 (17 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Pao
Citation:
Date of decision:	17 September 2024
Parties:	Rex v Elizah Tinae Pao
Date of hearing:	30 August 2024
Court file number(s):	369 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	1. I convict Mr Pao of 2 Counts of persistent sexual abuse. I will impose 2 years imprisonment sentence for Counts 1 and 2 to be served concurrently. There is no allowance for pre-trial custody time in view of big reductions made herein. The 2 years sentence term will start to run from 17/09/2024. I have tried to balance the need for deterrence, rehabilitation and old age. As I stand back and look at the circumstances, 2 years custodial sentence will meet all three balancing considerations.
Representation:	Ms Pellie for the Crown Mr Waroka for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual offences)Act S 142 (2), S 139 (1) (a) and 139 (2) (a) [cap 26]
Cases cited:	R v Ramaia [2021] SBHC 96, Togovi v Regina [2009] SBHC 63

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 369 of 2023

REX

V

ELIZAH TANAE PAO

Date of Hearing: 30 August 2024
Date of Sentence: 17 September 2024

Counsel: Ms Pellie for the Crown
Counsel: Mr Waroka for the Defendant

Keniapisia; PJ

SENTENCE

1. Ilimae Alisha Atkin (Alisha - 10 years) and Linda Zalina Talasasa (Linda - 9 years) were residing with their aunt Pauline Talasasa Buaga (“Buaga”), at the latter’s skyline residence, Honiara in the year 2023. Mr. Elijah Tinae Pao (“Pao”) was also staying in the same house with Buaga the same year.
2. Mr Pao stands charged for 2 separate Counts of persistent sexual abuse on Alisha and Linda. Each of the two victims complain that Pao sexually abused her on three separate occasions. Mr Pao initially denied the charges. At trial however Pao entered a guilty plea to the 2 charges of persistent sexual abuse premised on summary of agreed facts.
3. The summary of agreed facts shows that Mr Pao did not have penial sexual intercourse with his two victims. The persistent sexual abuse conducts Mr Pao pleaded guilty to range from separate incidences of vaginal licking, vaginal touching, vaginal penis rubbing and mouth kissing. Mr Pao committed these sexual abuse acts on each of the two victims on three different occasions between the months of January to February 2023. Hence, he was charged for 2 Counts of persistent sexual abuse contrary to Section 142 (2) read with Section 139 (1) (a) and 139 (2) (a) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (No. 3 of 2016).
4. In Count 1 Pao was charged for 3 separate incidents of persistent sexual abuse on Alisha. For Count 2 Pao was charged for 3 separate incidents of persistent sexual abuse on Linda. Persistent sexual abuse is a serious crime because it carries a maximum penalty of life imprisonment. However, I have power to impose a lesser sentence term.
5. At trial on the 19/07/2024, I arraigned Mr Pao on the 2 Counts as per the “further amended information” filed on 15/07/2024. Mr Pao pleaded guilty to the 2 charges premised on summary of agreed facts filed on 17/07/2024. I convicted Mr Pao accordingly. Now I have to determine the appropriate sentence.

Starting point sentence

6. According to Sinatau Court of Appeal 2023, the starting point sentence for unlawful sexual intercourse with a child under the age of 15 years is 8 years. Alisha was 10 years old. Linda was 9 years old. I will set the start point sentence at 8 years.

Aggravating factors

7. I determined the following serious aggravating factors: -
   • (i) Age disparity – The two victims are 10 years and 9 years. Mr Pao was 68 years at time of offending. An age difference of more than 57 years. Mr Pao should be a grandfather and role model to the two victims. And there is expectation that he should be accountable and responsible to protect his two victims from this kind of offending (R v Ramaia).
   • (ii) Home – The two victims were staying with their aunt Buaga, in her home. That home should be a safe haven for the two victims where they should feel secure, safe and protected from sexual defilement. Instead Mr. Pao turned that home into a crime scene.
   • (iii) Repetition – Mr Pao engaged in sexual abuse acts against his two victims on repeated occasions. Repetitive harm on the same person is a serious aggravating factor.
   • (iv) Young age of the victim – The two victims are very young and yet to reach puberty age. One is 10 years and the other 9 years. The aggravating effect on sentence will be greater where the victim is a younger child, as in this case.
   • (v) Pre-planning and enticement – Mr Pao lived with his two victims in the same house. He enticed them with money. He looked out for chances to exert his sexual desires on them in the house.
   • (vi) Psychological trauma - I must take judicial notice of the long-term devastating impact despite lack of evidence.
   • (vii) Position of trust breached – Mr Pao is an elderly male who lived with his two victims in the same house. The victims are justified to look up to Mr Pao as a fatherly figure or even a grandfather. By living in the same house, the two victims have developed trust and dependency on Mr Pao to the extent that they feel secured entering his sleeping room. Mr Pao breached that position of trust when he exerted his sexual desires on the two young girls.
8. For all of the above 7 serious aggravating factors combined, I will inflate the starting point sentence by 7 more years (1 year for each aggravating factor). Increase due to serious aggravation should be in years and not merely in weeks and months (Bade, Court of Appeal 2023). That brings me to a total head sentence of 15 years before mitigation.

Mitigating factors

9. But then there are mitigating factors working in Mr Pao’s favour to reduce the head sentence downwards. The first one is early guilty plea. On the first opportunity Mr Pao did not plead guilty. At trial however Mr Pao entered an early guilty plea to the 2 Counts. That is all part of the process because there were negotiations on the initial charges (the information filed on 11/08/2023) resulting in a “further amendment” to the initial information, which was filed on 15/07/2024. Prior to that the initial charges were also “amended” and filed on 11/12/2023.
10. Mr. Pao entered an early guilty plea on 19/07/2024 to the “further amended information” filed on the 15/07/2024. I will regard this as early guilty plea because negotiations resulting in the “further amended information” and the early guilty plea taken on the trial date are all part of the ongoing criminal process. I give 30 percent reduction. The early guilty plea shows remorse, saves trial time and saves the 2 young victims from going through the trauma of taking the witness box to recount their sex abuse ordeals. Thirty (30) percent reduction comes to around 4.5 years rounded to 4 years.
11. Next is first time offender with no previous convictions. I will give 2 years reduction.
12. The next mitigating factor is old age of Mr Pao. Mr Pao is currently 69 years old (see summary of agreed facts filed on 17/07/2024). Mr Pao is nearing 70 years. Life expectancy for men in Solomon Islands is between 63 to 66 years (Togovi v Regina [2009] SBHC 63; HCSI-CRC 50 of 2009 (30^th October 2009)). High Court held in Togovi that old age is an important factor that must reduce a sentence for a defendant. Court must recognise that each year of a sentence in prison represents an unusually substantial proportion of the period of life left to an aged offender.
13. Court must consider the “reasonable expectation of usual life” after release from prison. For an old man like Mr Pao, there is not much of “usual life” left after release because he will grow very old and fragile by the time of release.
14. In view of old age, I will give a big reduction of 6 years. I will give a final head sentence of 3 years for Count 1. For Count 2 being occasioned on a separate victim, I will also impose another 3 years considering the same aggravation and mitigation factors for Count 1. Then I will do the sentences for Count 1 and Count 2 to run concurrently. If I say consecutive it will be 6 years sentence. Such sentence will have a crushing effect on Mr. Pao, an old aged man whose “usual life” left after release will become hopeless (Togovi).
15. As I stand back and look at the sentence, this is the most generous custodial sentence I have given for persistent sexual abuse. The reason is because of old age as discussed above.
16. I will go further and reduce the 3 years down to 2 years because Mr Pao is currently 69 years old. And each year of sentence in prison represents an unusually substantial proportion of life left to Mr Pao as an aged offender. To make things worse for Mr Pao, he has very serious and worrying health conditions, which are detrimental to his already ageing life. Beyond 70 years in prolonged confinement, will become stressful and worrying for Pao’s prevailing health issues and complications, according to the doctor’s report.

Conclusion and Orders

17. Two important principles of custodial sentence are rehabilitation and reform. An offender’s time in the correctional facility should re-educate and prepare the offender to re-enter society. Where the offender is old aged and has serious health conditions, a prolonged custodial sentence may yield undesirable outcomes, thereby undermining rehabilitation. A prolonged custodial sentence will do more harm than good to Pao. By next year 2025, he will turn 70 years. After 70 years, Mr Pao’s life span will deteriorate drastically downhill.
18. I convict Mr Pao of 2 Counts of persistent sexual abuse. I will impose 2 years imprisonment sentence for Counts 1 and 2 to be served concurrently. There is no allowance for pre-trial custody time in view of big reductions made herein. The 2 years sentence term will start to run from 17/09/2024. I have tried to balance the need for deterrence, rehabilitation and old age. As I stand back and look at the circumstances, 2 years custodial sentence will meet all three balancing considerations.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE