R v Manaba [2024] SBHC 46; HCSI-CRC 35 of 2024 (18 April 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Manaba
Citation:
Date of decision:	18 April 2024
Parties:	Rex v Charles Manaba
Date of hearing:	5 April 2024
Court file number(s):	35 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	I sentence the accused to 17 years imprisonment having convicted him after taking an early guilty plea on 24/03/2024. I will also allow reductions in respect of pre-trial custody time (s) spent in waiting. The relevant correctional facility will determine this entitlement for further reduction purposes. I hope this punishment will reform the defendant and deter like–minded offenders. I give a high custodial sentence because the circulation of nude pictures on the internet is a serious and easy sexual abuse crime to commit these days with the use of technology and mobile phones. And anyone planning to engage in such easy sexual abuse crime with an intention to distribute nude pictures for public viewing on the internet will know that the Courts will come hard on them in terms of hefty custodial sentence terms. That the Courts will condemn such illicit activities.
Representation:	Ms Pellie for the Crown Ms Kukura for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 136 G (a) (b)
Cases cited:	Bade v R [2023] SBCA 39, Pana v R [2013] SBCA 19, R v Liufirara [2023] SBCA 10, Regina v Bonuga [2014] SBCA 22,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 35 of 2024

REX

V

CHARLES MANABA

Date of Hearing: 5 April 2024
Date of Sentence: 18 April 2024

Ms Pellie for the Crown
Ms Kukura for the Defendant

Keniapisia; PJ

SENTENCE

Introduction and admitted facts

1. The admitted facts for this offending disclosed peculiar, alarming and novel type of sexual abuse. This may be the first of such extreme case to have occurred under the Penal Code Act (Cap 26), as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 - hereafter referred to as “the 2016 Act”. This is expected because new offences and increases in penalties for others were created in the 2016 Act. The 2016 Act anticipated the emergence of new sexual offending and was aimed to curb the emergence of new forms of sexual abuses.
2. Court must be vigilant to arrest the emergence of new sexual abuse, in terms of an appropriate sentencing response. Statement of offence shows that the accused was charged for 2 Counts of compelled sexual intercourse contrary to Section 136 G (a) (b) of the 2016 Act. Particulars of offence in Count 1 shows that the defendant Mr. Charles Manaba on the 19/11/2023, at Lawson Tama hill-top, close to the St Barnabas Cathedral area, Honiara, Guadalcanal Province, compelled a man namely Lonsdale Manasseh Ossie to have sexual intercourse with a woman namely Esmy Takoikeni, without his consent and knowing about or being reckless as to the lack of consent. Count 2 is exactly in the same wordings as Count 1 but now vice-versa in that the defendant compelled Esmy Takoikeni to have sexual intercourse with Lonsdale Manasseh Ossie without her consent and knowing about or being reckless as to the lack of consent.
3. Defendant pleaded guilty to the 2 Counts on 24/03/2024 preceded by the admitted facts filed on 24/01/2024. The admitted facts contained the detailed evidence about the horrible sexual abuse. I will repeat that this may be the first worst case of sexual abuse to be dealt with since the 2016 Act came into force. It certainly is the worst case of sexual abuse under Section 136 G (a) (b) of the 2016 Act, I have ever come across doing criminal work since 2022.
4. The admitted facts contained in the summary of agreed facts filed on 24/01/2024 shows the following frightening or alarming facts: -
   1. The defendant is Charles Manaba, he is 26 years old, and is married with two children.
   2. There are two complainants (“the complainants”). The female complainant is Esmy Takoikeni who is 23 years old and hails from Karu’u, Small Malaita, Malaita Province. The male complainant is Lonsdale Manasseh Ossie who is 20 years old and hails from Kia, Isabel Province.
   3. The Complainants are in a domestic relationship, that being they are in a boyfriend-girlfriend romantic relationship.
   4. The incident occurred on 19^th November 2023 between 3pm and 4pm, at Lawson Tama hill top close to the St Barnabas Cathedral area.

Incident

5. That at all material time, the complainants have sexual intercourse with each other because the defendant threatened to hurt them with a red pair of scissors.
6. That on 19^th November, 2023, around 3pm, the complainants met in town and walked up the hill side of FFA headquarters area by taking a road path that leads alongside the fence of the Saint Barnabas Cathedral up to hill side.
7. That upon arriving on the hill, the site of the offending, they sat amongst tall grasses and began telling stories to each other.
8. The location at which they sat is within the vicinity of the FFA headquarters.
9. That as they sat and told stories to each other, they suddenly saw the defendant standing on the other side of the fence where an opening was cut through the fence.
10. That the defendant was angry at them and suddenly spoke angrily to them whilst at the same time walked towards them through the opening on the fence.
11. That the defendant then spoke to them to the effect of “iufala no save dat mi na luk aftarem area ia, iufala trespass ia, mi na lusim slen lo area ia if any pipol kam mek mess or brekem eniting insaed ia mi nao ba lusim slen”. Translated – “You don’t know that I look after this area. You are trespassing. I lose money on this area. If you damage any property it will cost me money”.
12. That as the complainants heard him speak like that, they apologised and stood up to leave. As they both stood up and were about to leave, the defendant walked towards Lonsdale and took Esmy’s black bag that Lonsdale was carrying and removed all its contents; a small bottle of lime, $8.00, a Rosary cross and a black Samsung mobile phone with black and white stripes on its back.
13. The defendant then took out a pair of red-handled scissors from his trousers pocket and threatened them by saying that they must follow what he tells them to do or he would kill them.
14. This threat made the complainants feel scared. Esmy’s body was shaking. They were scared that he might kill them.
15. Then still in his angry tone of voice, he told them to remove all of their clothes.
16. Esmy was too scared to remove her clothes so her boyfriend was the first to remove his clothes. He removed his green T-Shirt and white pair of trousers.
17. That Esmy followed suit by removing her dyed, mixed-coloured shirt, blue skirt, stripe purple panties and black trousers.
18. That the defendant told Esmy to perform fellatio on her boyfriend by sucking on Lonsdale’s penis to ensure that it gets fully erected.
19. At that time, the defendant continued to force her to continue sucking on Lonsdale’s penis to ensure that it gets fully erected.
20. At that time, the defendant was standing only 3 – 4 meters away from them and video-recorded them as they continued to engage in this sexual act.
21. That the defendant then ordered Esmy to lay on the ground next to the fence and ordered Lonsdale to perform cunnilingus by licking her vagina, without his consent. Lonsdale did as commanded and licked Esmy’s vagina.
22. That the defendant then ordered Lonsdale to lay on the ground so that Esmy would once again suck on his penis.
23. That Lonsdale did as commanded and laid on the ground and Esmy sucked on his penis.
24. That after that the defendant told Esmy to have penile vaginal sex with her boyfriend, without her consent.
25. That she straddled him and sat onto his penis but because Lonsdale’s penis hadn’t been erected yet at that point, she had to masturbate him using her hand.
26. That the defendant continued to force them to must ensure that Lonsdale’s penis gets erected.
27. That Esmy then, whilst straddling Lonsdale, pushed her vagina onto his penis and moved in sexual motions up and down.
28. That all the while, the defendant continued to video-record them.
29. That all the while, the defendant also continued to force them to do whatever he instructed of them.
30. That the defendant then asked if either of them had already ejaculated and when Lonsdale said he had ejaculated, the defendant insisted that they should continue having sex.
31. That Esmy was very scared and cried, pleading for hers and Lonsdale’s safety.
32. That at one point, the complainants paused what they were doing as the defendant rang another person on a mobile phone that he was holding.
33. That the defendant talked to the other person and they heard him say “iu kam” – “Come here.”
34. That not long after the phone call, a person, which the complainants could not identify by name as he was a stranger to them, showed up at the scene.
35. That as soon as the man arrived, the defendant told him to take Esmy into the bush and have sex with her.
36. That the other man took, Esmy by her hand and led her into the bush where he had sexual intercourse with her by pushing his penis into her vagina.
37. That after that, the two parties (Esmy and the other man) went back to where the defendant and Lonsdale stood, waiting for them.
38. That the defendant then told her to put on her clothes.
39. That as Esmy was putting on her clothes, the defendant told her to pull down her skirt and underwear to her knees and he took a photo of her vagina.
40. That the defendant saved the video he recorded of the complainants on the phone that he used to record with.
41. That when the defendant returned to his place of residence around 4pm to 5pm, he showed the video clips of the complainants to the people in his neighbourhood.
42. That the defendant then uploaded the video clips on Facebook.
43. That the video clips were shared on a Facebook chat group called “Choipo Crew” from which Police investigations retrieved.
44. That the video clips went viral all over Facebook whereupon many people viewed it on the internet.
45. That the video clips clearly show the faces of the complainants and the complainants could be easily identified.
46. That the complainants did not consent to have sex with each other as demanded of them by the defendant.
47. That neither did the complainants consent for the video clips to be posted on a public social media platform where many people could freely access and view.
48. On 22^nd November, 2023, Esmy had medical examination by Dr Ezekiel at the National Referral Hospital where she was referred to professional counselling at the Family Support Centre.
49. Complainants were traumatised from this incident and had to undergo professional counselling at the Family Support Centre.
50. That the defendant took their mobile phones that were later recovered by the Police.

Starting point sentence

5. I alluded to above that this is a novel case. Court must have a robust approach in terms of determining an appropriate sentencing response to do justice, not only to the victims, but to the offender and the public interest. What message will the Court be sending out to the public at large? I cannot match the facts of this offending to established sentencing guidelines for common sexual abuses against young girls and women generally. I cannot match the circumstances of this case with starting point sentence for cases such as rape, indecent act, defilement or other common sexual offences against women and girls under the age of consent or in domestic abuse cases. For instance, in contested rape cases where the victim is a female adult, the starting point sentence will be 8 years for contested trial. But where there is an early guilty plea as in this case the start point sentence is 6 years. This is according to Bade^[1]. I will start at 6 years.
6. Nevertheless, I still find some good general guidelines and assistance in Bade, where at paragraph 9, the Court of Appeal relevantly stated: “...sexual offending within a domestic violence context, is just as serious as any other sexual abuse cases, both are serious offences, and the sentencing response must be the same...” The same sentencing response the Court of Appeal was referring to is stern custodial sentence terms for sexual abuse crimes, under the 2016. Court of Appeal was concerned about the prevalence of sexual abuse against women and girls, prompting the reforms made in the 2016 Act, referring to the nationwide survey preceding the 2016 reform. Court of Appeal was also concerned about lenient sentences, a trend the Court observed was normal for High Court in Solomon Islands. I bear in mind a stern approach to sentencing for sexual abuse offences more generally under the 2016 Act. This is one such general sexual abuse offence under the 2016 Act – Section 136 G (a) (b), where it creates a sexual abuse offence for a person to compel or force another person to engage in sexual intercourse with another person, without that other person’s consent as what happened here. And if I may add, the admitted facts here, revealed a rather worst kind of compelling of two persons to have sexual intercourse.

Departure from the start point sentence and new start point sentence

7. For this worst case of compelled sexual abuse under Section 136 G (a) (b), I intend to depart from the start point sentence of 6 years (uncontested trial - Bade) to start at 10 years. If it was a contested trial, I would depart and start at 12 years. High start point sentence also means the Court is condemning this worst kind of crime. Departure from the start point sentence is permissible under Pana^[2] where there are peculiar circumstances warranting such departure. The peculiar circumstances of this offending warranting a departure are: -
   51. The accused forced two complainants into having sexual intercourse under the barrel of the gun (threaten them with a sharp scissors). Sexual hostage I would describe it.
   52. Instructed them under threat to engage in all sorts of sexual intercourse styles from cunnilingus to fellatio to sexual penial penetration. Sex is meant for enjoyment, pleasure, sexual satisfaction and wholeness of inner being when done freely and in the proper manner. Sex should not be forced on anyone, not certainly in the manner it has transpired here.
   53. And then the defendant was taking video clips shots using a mobile phone, of all the sexual actions that the two complainants were engaging in under his command. No person in his right mind in a Melanesian cultural society would engage in such a filthy and morally decaying activity to force others to have sexual intercourse and to take video clips of it.
   54. Not only that but the accused also forced the female complainant (girl friend of the male complainant) to have sexual intercourse with another boy (stranger) whom he called to come over to take turn to have sexual penial intercourse with the female complainant in a nearby bush whilst her boyfriend (male complainant) stood by and waited some distance away. It must be a horrible feeling to know that a stranger is having sex with your girlfriend right in your eyes. It is also a health risk for the female complainant to be having sex with a stranger. What if the male stranger had some serious sexually transmitted diseases such as being HIV positive? He would pass it onto the female complainant and onto the male complainant boy-friend. These were potential health-hazardous implications of the defendant’s reckless actions that afternoon.
   55. And what’s worst is the accused showed nude pictures of the complainants to people in his neighbourhood. As if that was not enough, he again put the video clips that he took of the two complainants forced sexual abuses on the Facebook chat group called “Choipo Crew” for public internet circulation and viewing. And then it went viral on the internet. This is stupidity in the highest degree. This is the worst aspect of the offending because the public was put to consume nude sexual pictures of the 2 complainants, who were forced to do something they would not otherwise do. And people not knowing about the background would conclude that these 2 young complainants (boy and girlfriend) were out of their minds to be doing this on video and circulating to the public for viewing.
8. Whilst I make a departure here, in view of the peculiar circumstances, I am also suggesting that the starting point sentence for a worst kind of offending under Section 136 G (a) (b) is 10 years for early guilty plea and 12 years for contested trial. I am suggesting a higher start point sentence because of the need for the Courts to be vigilant and keep watch against isolated incidences of sexual abuses that may present new and alarming fact scenarios in the future.
9. Solomon Islands is no longer the same as it used to be 50 years ago, when I was growing up as a child. With the advent of societal changes and in view of internet technology, we will expect to see the emergence of new types of sexual abuses, like this one. And when this happens, the Court must be robust in its sentencing responses to instil a message of deterrence. The public will know that circulating nude pictures on the internet for public viewing is condemned in the strongest term.

Aggravating factors

10. Then I will lift upwards the start point sentence due to the presence of serious aggravating factors. The serious aggravating factors justifying an increase upwards to the start point sentence are: -
    • (i) Threat and force used to compel the victims - Defendant appeared aggressive and used a sharp scissors to threaten the two complainants to engage in sexual intercourse styles that he instructed them to do. Sex is meant to be enjoyed and mutually freely given. You do not force it with threat and out of fear on someone.
    • (ii) Physical harm - It was physical harm for the two complainants to be having sexual penetration under intimidation because their bodily sexual hormones were not prepared for penial penetration, let alone sex. As an example, Lonsdale’s penis could not get erected and Esmy had to masturbate it to get erection. For the female complainant this physical harm happened twice. The defendant forced her to have sexual intercourse with two different boys having different penis sizes, taking turns to have sexual penial intercourse with the female complainant. The stranger male had sex with the female victim in a nearby bush whilst her boyfriend (male complainant) stood by and waited some distance away. How would it feel to have 2 boys penetrate the vagina of a girl at around the same time? It must feel really inhuman and undignified. The very act of rape is physical violation of a victim and physical harm is inherent in it – (R v Liufirara [2023] SBCA 10; SICOA-CRAC 30 OF 2022 (28^th April 2023).
    • (iii) Double victim – The 2 Counts relate to one act of sexual abuse in which there were two complainants (boy and girl friend). Defendant sexually abused two people in one act of sexual abuse. If it was murder it means the accused actually killed two people as opposed to committing an offence on one person only.
    • (iv) Female victim forced to have sex with 2 men – Female complainant was forced to have penial sexual intercourse with her own boyfriend against her will. Simultaneously she was forced to have penial sexual intercourse with a stranger against her will. This is most humiliating. It is as if I am reading about animals while reading this in the agreed facts because humans do not do this. I only see this from animal birds like hen and roaster.
    • (v) Variety of sexual acts - Not only sexual intercourse by penial penetration but there were other forced sexual abuse types like cunnilingus, fellatio and masturbate. When these are freely given, I could understand. But when these were forced onto 2 people in a hot climate afternoon in Honiara, I could imagine the greatest distaste which the 2 complainants were forced into. It is humiliating to say the least.
    • (vi) Taking videos – Accused was taking video clips whilst the 2 complainants engaged in various sexual act types at his preference. This is another humiliating action. Sex is not displayed for public viewing. It is a shameful thing to have sex whilst someone is watching. This is because of the taboo placed on sex by our culture. I do not know what was going on in the head of the accused.
    • (vii) Share video clips in the local neighbourhood – This is shameful because the complainants did not do all this for others to see at will. They were forced and did not consent to others viewing their nude pictures.
    • (viii) Distribution of video clips on Facebook and the internet – So many more people locally and internationally were accessing and viewing nude pictures of the complainants. People would have undoubtedly been making unwelcome comments. This is something shameful not only for the complainants but for Solomon Islands image as a whole.
    • (ix) Isolated spot - This is an isolated spot where the accused had been staying and knew about the isolation because he looks after the place. He could have his plans rolled out without any interruption in his own territory. For the victims it means they could not call out for help or make an escape. Isolated location also created fear in the minds of the victims where they submitted to the accused’s instructions to have sex out of fear.
    • (x) Psychological and emotional effect – The emotional and psychological harm cannot be measured but the scars of regret, degrading human treatment and low self-esteem feelings will remain in the complainants’ heart, soul and mind for the rest of their life. Their victim impact statement tells me this. Additionally, they have received professional counselling but yet to overcome their ordeal. I should take judicial notice of such negative long-term impact (Regina v Bonuga [2014], SBCA; 22 SICOA-CRAC 12 of 2014 (17^th October 2014).
    • (xi) Harm to image of Solomon Islands – Solomon Islands image in the international arena of internet was damaged. Solomon Islands prides itself as a Christian nation in addition to vibrant cultural values. Producing and circulation of nude pictures as in here is detrimental to those values we cherish so dearly.
    • (xii) Stealing of complainants’ properties – Defendant also stole the properties of the complainants and only retrieved by the police. Stealing is another offence accused could have been charged for.
11. For all of the above 12 serious aggravating factors combined I will inflate the start point sentence by 20 years (about 1.6 years for each aggravating factor). This is justified because the maximum sentence available is life imprisonment, denoting it is a serious crime. The case of Bade says uplift of the aggravating factors must be in years and not weeks and months.

Mitigating factors

12. But then there are mitigating features working in the defendant’s favour to reduce the aggravating inflated sentence downwards. The most rewarding mitigating factor is early guilty plea. I give 30% reduction for this, which worked out to be 9 years. This is a big reduction because early guilty plea benefits, the Court and the complainants. For the Court it saves time. For the complainants it saves them from exposing in the witness box the shameful sexual abuses they had to endure by force. And it shows remorse and responsibility on the part of the accused for his wrongful actions.
13. The next mitigating factor is first time offender with no previous conviction. I deduct 1 year. Next is compensation. It is a custom involving prominent national and village leaders. It will heal the broken relationship and restore communal harmony. I give 1-year reduction. Younger and youthfulness - the accused is a young offender and still has the prospect to re-habilitate, I deduct 2 years. I will not give deductions for personal circumstances of the accused (Bonuga). I do not allow big reductions because this is a serious crime and the sentencing response must be stern. Court must condemn such worst kind of serious offending in the strongest term.

Conclusion and Orders

14. The final total head sentence after mitigation reductions is 17 years. I sentence the accused to 17 years imprisonment having convicted him after taking an early guilty plea on 24/03/2024. I will also allow reductions in respect of pre-trial custody time (s) spent in waiting. The relevant correctional facility will determine this entitlement for further reduction purposes. I hope this punishment will reform the defendant and deter like–minded offenders. I give a high custodial sentence because the circulation of nude pictures on the internet is a serious and easy sexual abuse crime to commit these days with the use of technology and mobile phones. And anyone planning to engage in such easy sexual abuse crime with an intention to distribute nude pictures for public viewing on the internet will know that the Courts will come hard on them in terms of hefty custodial sentence terms. That the Courts will condemn such illicit activities.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Bade v R [2023] SBCA 39; SICOA-CRAC 9017 of 2023 (13^th October 2023).
^[2] Pana v R [2013] SBCA 19; SICOA-CRAC 2013 (8^th November 2013).