R v Hiriboe [2024] SBHC 30; HCSI-CRC 208 of 2023 (22 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Hiriboe
Citation:
Date of decision:	22 March 2024
Parties:	Rex v Ronald Hiriboe
Date of hearing:	13 March 2024
Court file number(s):	208 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	I therefore, sentence the defendant for 8 years and 9 months imprisonment. This sentence will run with effect from the date the sentence is delivered.
Representation:	Mr J Auga and Ms Tui Scot Mr A Bosa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016 S 142 (2), S 42 (2), S 136 F, S 142 (2), S 139 (a), S 136 (d) (2) (a)
Cases cited:	Bana v R [2018] SBCA 10, R v Sinatau [2023] SBCA 38, Bade v R [2023] SBCA 39, R v Asuana [1996] SBHC 106

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 208 of 2023

REX

V

RONALD HIRIBOE

Date of Hearing: 13 March 2024
Date of Sentence: 22 March 2024

Mr J Auga and Ms Tui Scot
Mr A Bosa for the Defendant

SENTENCE AFTER PLEA OF GUILTY

Faukona (DCJ).

The defendant was charged for one Count of persistent sexual abuse of the complainant, a child contrary to section 142 (2) of the Penal Code, as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.

1. At the time of offending the defendant was 35 years old and the complainant was between 9 and 11 (almost 12) years old.
2. The offending involves five (5) incidents of digital and oral sexual intercourse. When those incidents were read and explain to the defendant in Court he agrees to and plea guilty to all of them.

Facts.

3. All five incidents occurred at Tawatana village, Arosi 1 in the Makira/Ulawa Province.
4. The first incident occurred on an unknown date between 1^st September and 30^th September 2018, in the family house bedroom, the defendant had sexual intercourse with the complainant who was ten (10) years old, by licking her vagina and penetrating her vagina with his fingers. Again in the family bedroom on a date between 1^st and 31^st December 2018, the defendant had sexual intercourse with the complainant who was ten (10) years old, by licking her vagina and forcing her to suck his penis.
5. Third occasion occurred in the bush garden on a date between 1^st and 31^st January 2020, when the defendant had sexual intercourse with the complainant who was eleven (11) years old, by forcing her to lick his penis, inserted his finger into her vagina and licked her vagina.
6. The forth occasion again occurred in the family bed room, on a date between 1^st and 31^st March 2020, when the defendant had sexual intercourse with the compliant who was eleven (11) years old, by licking her vagina.
7. The fifth occasion again occurred in the family bedroom on a date between 1^st and 31^st August 2020 when the defendant had sexual intercourse with the complainant who was eleven (11) years by forcing her to lick his penis, inserted his finger into her vagina and licked her vagina.
8. I appreciate the case of Bana V R^[1] in which the Court of Appeal set out the process a sentencing judge should follows. It should start by identifying a starting point, then consider the aggravating features and then the mitigating features.
9. After then reference should be made to the effect, if applicable, of an early guilty plea. Then consider pre-sentence periods of custody and eventually consider the totality of sentence.

Starting point identified.

10. The maximum punishment for persistent sexual abuse of a child in accordance to S.42 (2) of the Penal Code (Amendment) (Sexual Offence) Act 2016 is life imprisonment. It is the same maximum sentence for rape.
11. Noted that for an offence of persistent sexual abuse be an unlawful crime, the qualification that it must occurred on three (3) or more separate occasions.
12. In R V Sinatau^[2], the Court of Appeal set a starting point for rape under (s.136 F) and for sexual intercourse or indecent act to child under 15 involving sexual intercourse with children, the Court should adopt starting point of eight (8) years.
13. A common denominator noted in S. 136 F and S.142 (2) is that the maximum sentence is life, whilst in S.139 (a) for having sexual intercourse or indecent act with a child under 13 years also carries a maximum penalty of life imprisonment.
14. Sexual intercourse is well defined in S. 136 (d) (2) (a). The action by the defendant in this case by licking and pushing his fingers into the complainant’s vagina, on more than three occasion and the age of the victim may deserve 8 years as a starting point, in my view would be fair.
15. In the case of Bade V R^[3] the respondent was convicted of two charges of sexual intercourse with a child under 15 years. The Court of Appeal quashed a sentence of 5 years for each count to run concurrent and applied a starting point of 8 years for each count.
16. Note only one child in which the defendant had full penile intercourse with, the other he performed oral sex and touched her vagina with his finger.
17. In Pige case the Court of Appeal reaffirmed that the starting point for having sexual intercourse with a child under the age of consent is 8 years.
18. It would appear both Counsels seem to agree with the starting point set at 8 years, notwithstanding the fact that there is yet a Court of Appeal guidance related to setting a starting point in an offence of persistent sexual abuse of a child.
19. In any event I set 8 years as starting point in this case.

Aggravating features.

20. The aggravating features that present in this case are the age of the victim. The age of the victim is this case is an aggravating feature itself. In Sinatau, the Courts attention is drawn to the principle that aggravating effect on sentence will usually be greater, the younger the child. The age of the victim is 9 – 11, almost 12. Sexually abusing a girl of such age is serious.
21. Age disparity is one of the aggravating factors. The victim was aged 9-11, almost 12 at the time of offending. The defendant was 34 years, age difference of 22 years.
22. All except one incident, occurred in the bedroom of the family. Family home to the extent of bedroom, is a place the victim should find fortress, security and felt save at all times. To be sexually abused in her own dwelling place is serious and there is no full guarantee she will be saved in the future.
23. The defendant is a step father of the victim. He should be a trusted as head of the family. He abused that trust leaving the victim vulnerable and indecisive of her future. He should be the person to protect her instead he exploited her for his own sexual desire.
24. The offending involved five incidents of digital and oral sexual intercourse which occurred over a period of almost two years. Repetitive offending against a step daughter, and a vulnerable child is serious. The defendant had pleaded guilty and admitted his wrong yet he behaved in such manner. This shows complete disregard to law and custom.
25. An act of sexual abuse upon a child as the age 9 as the victim cause trauma and psychological harm. Although there is no evidence to proof, however, I take judicial notice of.
26. With those aggravating factors I will uplift the starting point to 11 years.

Mitigating factors.

27. I do not fully consider the guilty plea as one of the mitigating features. However, I consider the fact that the defendant did not enter a plea of guilty at first instance when the charge was read to him on the 19^th September 2023. He only changed his mind on 13^th March 2024 when the charge was reread to him. I do not accept his plea of guilt totally reflect his contrite heart.
28. In any event I will accept to some extent that it serves Court, Counsels and Police time and resources to run a full contested trial. And to avoid victim being called into the witness box to convey an ordeal she had gone through with stress and agony.
29. I noted the defendant expressed remorseful indicated by plea of guilty. I would accept if plea of guilty at first opportunity either in Court or as soon as he engaged a Counsel. This was not done and I regrettably must not accept.
30. Personal circumstances of the defendant is one of the mitigating factors. That he is married with 4 children. He is unemployed together with his wife. 4 of his children are attending school and they rely on him for financial assistance and support.
31. Those personal circumstances should be the ultimate grounds to be considered before committing the offence. After pleaing guilty to a crime then raised circumstances to become part of consideration for deduction is not impressive at all.
32. I will definitely consider the time the defendant spent in custody.
33. I also consider compensation had been paid for the offence committed in which the defendant had paid SBD$1,100.00 as a form of compensation to the victim’s mother Mrs Rebecca Oha. In the case of R V Asuana^[4] Ward CJ stated that, “any custom compensation must be considered by the Court in assessing sentence as a mitigating factor but it is limited as its value. The Court must avoid attaching such weight to it that it appears to be a means of subsequently buying yourself out of trouble”.
34. I am obliged to consider whether custom compensation had been paid. However, there is no evidence that the money was paid. NO evidence as to what date and month was paid. Who were present, for instance chiefs or elders, on the date compensation was paid. I must therefore reject the mitigating feature that custom compensation was paid.

Sentence.

35. For guilty plea I reduce uplift of 12 years to 10 years. Further, reduction is for the time spent in custody which is 1 year and 3 months. That leave 8 years and 9 months to serve.
36. This sentence is aimed at deterring the defendant not to reoffend again, and to send a message to the defendant’s community and at large that, should anyone wish to follow the steps of the defendant, he be dealt with by law seriously. Further, the offence of sexually abusing children is prevailing in Makira Ulawa Province. The quantum figure reflected in the penalty is aimed at levirating the trend experience in the Province now a days.
37. I therefore, sentence the defendant for 8 years and 9 months imprisonment. This sentence will run with effect from the date the sentence is delivered.

The Court.
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] SICOA, CRAC 17 of 2023
^[4] [1996] SBHC 106; (1990) SILR 201 (12 October 1990).