R v Haikeremi [2024] SBHC 48; HCSI-CRC 30 of 2024 (26 April 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Haikeremi
Citation:
Date of decision:	26 April 2024
Parties:	Rex v Haikeremi
Date of hearing:	20 April 2024
Court file number(s):	30 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	The total final head sentence I will impose after mitigation is 12 years. Defendant is also entitled to pre-trial waiting time deductions. Auki Correctional centre will determine. Court is sending out a strong message. That young girls, being the vulnerable, weak and tender age must be protected from sexual abuses. This is reflective of parliament’s clear intent in the 2016 Act, when it introduced new sexual abuse offences and increased the penalties for others.
Representation:	Mr Tovosia for the Crown Mr Limeniala for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136F 1 (a) and (b), S 139
Cases cited:	R v Liufirara [2023] SBCA 10, R v Bonuga [2014] SBCA 22,

IN THE HIGH COURT OF SOLOMON ISLANDS
CTIMINAL JURISDICTION

Criminal Case No 30 of 2024

REX

V

HAIKEREMI

Date of Hearing: 20 April 2024
Date of Sentence: 26 April 2024

Counsel Mr Tovosia for the Crown
Counsel Mr Limeniala for the Defendant.

Keniapisia; PJ

VERDICT AND SENTENCE

Introduction and admitted facts

1. By information filed on 4/3/2024, the defendant was charged for rape contrary to Section 136F 1(a) and (b) of the Penal Code Act (Cap 26), as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 - hereafter referred to as “the 2016 Act”. On the 19/04/2024, Counsel filed a summary statement of agreed facts. On the 20/4/2024, the defendant was arraigned premised on the agreed facts. Defendant entered a guilty plea. Court convicted the accused on his entering of a guilty plea. Court will now determine the appropriate punishment.
2. This is a serious offence. Parliament prescribes a maximum sentence of life imprisonment (Section 136F (1) (a) and (b) of the 2016 Act). Court however has power to impose a lesser sentence term. The gravity of offending could also be deduced from the summary of agreed facts. Court will adopt the summary of agreed facts in full: -
   1. Defendant is Sara Haikeremi of Wainanao village, South Malaita, Malaita Province.
   2. Complainant or victim is Ruth Rerao from Atara village, South Malaita, Malaita Province.
   3. On 12^th December 2022 around 10am the defendant went to the house of Andrew Kopei. It was there that he saw the victim, Ruth Rerao. He gave her some money. He told her to go to the store to buy “Saho” (home-made tobacco) smoke for him and her grandfather (Kopei).
   4. Defendant was intoxicated with Kwaso when he went to Atara village on 12 December 2022.
   5. The store was located at a distance of around 100 meters away from Andrew’s house and there was a footpath to the store from the main road. The accused gave the victim $10.00, with instructions that $5.00 was for Saho and the other $5.00 was for her to keep.
   6. Complainant took the money and went to the shop but it was closed. On her way back to Kopei’s house, she saw the defendant along the main road. Defendant grabbed her hands, walked her to a nearby bush and laid her on the ground. Defendant said the following words to the victim, “ba me fuckem you” – translated – “I will fuck you”.
   7. He then pulled his penis out, separated her legs, lifted up her skirt and tried to push his penis into her vagina. His attempt at penetration was unsuccessful. He ended up ejaculating in front of her (outside her vagina).
   8. The victim was crying and in pain. The accused got up and left her. She returned to her grandparent’s house crying and told them what happened. Victim’s mother then took her to Tarapaina Rural Health Clinic no less than 2 hours after the incident.
   9. Complainant was 7 years old at the time of the offending.
   10. Dr James Ereai, upon examination of the victim at Tarapaina clinic, Small Malaita, Malaita Province, confirmed that; rugged bilateral long lacerations were seen inside the victim’s vaginal introitus (see doctor’s report).
   11. Bleeding and pain were occasioned on the victim as a result of the injury sustained on her vaginal introitus (doctor’s report) when the defendant raped her.

Gravity of offending

3. Court will start with highlighting the gravity of this offending. The admitted fact that tells me this is a serious offence is, the complainant was only 7 years old, at time of offending. As a father I know what a 7-year-old daughter looks like. A 7-year-old daughter is only a child. Not even a teenager. I would also say a female child of this age is yet to have breast(s) budding. I doubt if she has menstruated at this age. I doubt if her internal and external sex organs have developed. If she was 9/10 years of age, I would say she already has breast budding. A 7-year-old female daughter is yet to reach puberty. This is why I called the victim a child. Biologically her physical and hormonal changes are yet to transition into adulthood. It means the complainant is yet to reach a time in life when she becomes sexually mature. Biology also dictates that puberty is a process that takes place between the ages of 10 to 14 years for girls and 12 to 16 years for boys.
4. In Are’Are language of Southern region, Malaita Province, there is a term we use called “Kawira’a”. It means if you plant a food garden, you must wait until your crops have matured before you can harvest. If you harvest prematurely, then you ruined your crop (“Kawira’a”). It is unwise for a farmer to do this. The food is tasteless. The harvest is fewer. The produce is very small in sizes. If it was potato crop, the farmer will have very small size potato tubes.
5. In this case, the 7-year-old complainant is yet to reach puberty. Victim is yet to reach a stage in life where she becomes sexually mature. That her physical and hormonal changes are yet to reach adulthood. This is why I doubted if she has breasts budding or had menstruated? This is why I called the victim a child.
6. The agreed facts show that the defendant tried to push his penis into the complainant’s vagina. He was not successful in penile penetration and only ejaculated in front of her. And the complainant sustained injuries on her vagina. Doctor Ereai (also a priest) observed there was bleeding and pain on the complainant’s vagina. Her vagina is too small for any penial penetration by a masculine adult person like the defendant. Defendant had kawira’a the female child victim.
7. In terms of sexual purity and dignity, the very act of rape by the defendant has encroached on the victim’s sexual virginity. It is said that virginity is the greatest gift a woman can give her husband at marriage. It is indeed demeaning for any young girl let alone a female child and her family in a cultural setting like South Malaita or Solomon Islands to go through a painful and traumatising experience as this. These are the societal and cultural virtues that parliament intended to secure for women and girls in the 2016 Act.

Starting point sentence

8. The starting point sentence for sexual abuse offences under Section 136F and Section 139 of the 2016 Act, is 8 years. This is according to Sinatau, Court of Appeal 2023. Counsel concedes in their written submissions. I will start at 8 years accordingly.

Aggravating factors

9. Court will inflate the starting point sentence, due to very serious aggravating factors, present in this offending. The serious aggravating factors are: -
   • (i) Age disparity - Complainant was 7 years old. Defendant was 24 years old. Age difference of 17 years. No wonder the victim’s vagina could not take in the defendant’s penis. It is expected that older male should be accountable and responsible in protecting very young girls from this kind of sexual offending. This is because in the villages we are a communal society.
   • (ii) Consumption of alcohol - Our villages are experiencing a new trend in terms of social disorder. That men and boys get drunk from alcohol consumption and find courage to cause societal disorder and to engage in nuisance activities such as sexual abuse, noise, loud music and fighting. Court sees this time and again. This is a trend the Courts must curtail by imposing stern deterrent custodial sentences.
   • (iii) Pre-meditated act - There is a lot of pre-planning in this offending. I repeat the admitted facts above and note that, on the day of offending, the accused went to the house where the victim was staying, at Mr. Kopei’s house. He saw the victim there. He gave her some money. He asked her to go and buy “Saho” smoke for him and Andrew Kopei (victim’s grandfather). Accused gave her $10.00. Victim was instructed to keep $5.00 as enticement and $5.00 to pay for Saho. Victim went but the shop was closed. On returning, accused went after her, met her along an isolated part of the road, about 100 meters away between Kopei’s house and the shop. Accused grabbed the victim’s hand and pulled her into the bush and raped her.
   • (iv) Physical harm – The very act of rape is physical violation of the victim and physical harm is inherent in it (R v Liufirara, Court of Appeal 2023). Court does not have to look for whether there was use of weapon or whether the victim suffered physical injuries. Penial sexual penetration of the young girl’s vagina is physical harm itself in addition to sexual defilement of the young girl’s sexual purity and virginity. This is why the 2016 Act prohibits unlawful sexual intercourse with girls under 15 years. Here the doctor confirmed there were physical injuries on or inside the victim’s vaginal introitus.
   • (v) Emotional and Psychological harm – Court will take judicial notice of the long-term degrading impact on the victim despite lack of medical and professional evidence (R v Bonuga [2014] SBCA 22, SICOA-CRAC 12 of 2014 (17^th October 2014)). It goes without saying that the victim had suffered unseen harm in feelings of fear, feelings of being sexually abused and inner being scar of regret and low-self-esteem. Victim will be traumatized that her dignity and virginity had been taken away from her permanently (lasting emotional pain that will remain with the victim).
   • (vi) Very young age of the victim, vulnerable and weak - At 7 years I would say the victim was at a very young sexual age, not to be tampered with through any unlawful sexual intercourse or indecent sexual act. The 2016 Act was enacted with the objective to keep intact the sexual sanctuary of young girls from sexual pollution and defilement like what the defendant did to the victim here – rape.
   • (vii) Isolated spot – Defendant raped the victim in the bush along the road. This is an isolated spot where the accused could have the sexual slaughter he planned without any interruption. For the victim it means she could not call out for help or make an escape. Isolated location means the victim was helpless and the defendant could assert his desires on her without interruption.
10. For all of the above 7 aggravating factors combined, I will inflate the starting point sentence by 14 years (2 years for each aggravating factor). Inflation of aggravating factors should be in years and not weeks and months (Bade; Court of Appeal 2023). That brings me to a 22 years total head sentence before mitigation.

Mitigating factors

11. Then the defendant is entitled to mitigating factors. The first and rewarding mitigating factor is early guilty plea. It saves Court’s time. It saves the young victim from humiliation to talk about her ordeal in the witness box. It also shows remorse and responsibility for wrongful actions on the part of the defendant. I will deduct 30%. That comes to 6.6 or just say 7 years.
12. The next mitigating factor is first time offender with no previous conviction. I deduct 1 year. Next is compensation – It is a worthy custom to repair social disorder and instil peace and harmony vital for communal co-existence in the village. I will deduct 1 year. Personal circumstances and youthfulness of the defendant, I allow 1-year reduction. The aggravating factors far outweigh the mitigation factors.

Conclusion and Orders

13. The total final head sentence I will impose after mitigation is 12 years. Defendant is also entitled to pre-trial waiting time deductions. Auki Correctional centre will determine. Court is sending out a strong message. That young girls, being the vulnerable, weak and tender age must be protected from sexual abuses. This is reflective of parliament’s clear intent in the 2016 Act, when it introduced new sexual abuse offences and increased the penalties for others.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE