R v Sade [2024] SBHC 49; HCSI-CRC 31 of 2024 (1 May 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Sade
Citation:
Date of decision:	1 May 2024
Parties:	Rex v Rocky Sade
Date of hearing:	25 April 2024
Court file number(s):	31 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	The 8 years sentence is for counts 1, 2 and 3 and will be served concurrently not consecutively. If I should make it consecutive it will be very excessive. And it will have a crushing effect on Sade (totality principle), because it will mean Sade would serve 24 years in imprisonment.
Representation:	Tovosia for the Crown Limeniala for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S139 (1) (b), S 140 (1) (a)
Cases cited:	R v Bonuga [2014] SBCA 22

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 31 of 2024

REX

V

ROCKY SADE

Date of Hearing: 25 April 2024
Date of Sentence: 1 May 2024

Tovosia for the Crown
Limeniala for the Defendant

Keniapisia; PJ

SENTENCE

Introduction, gravity of offending and admitted facts

1. By information filed on 2/2/2024, Mr Sade was charged for 2 Counts of sexual intercourse with a female child under 15 years and 1 Count of sexual intercourse with a female child under 18 years. Statement of offence in Count 1 alleged that Mr Sade had sexual intercourse with a child under 15 years contrary to Section 139 (1) (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”. The particulars of offence alleged that, Mr Sade, at Sikitae, Auki, Malaita Province, on an unknown date between 1^st to 30^th June 2019, did have sexual intercourse, with a child, namely Clerisha Sisitolo, who was under 15 years, to wit 14 years and 8 months by inserting his penis into her vagina.
2. For Count 2 the statement of offence alleged that, Mr Sade had sexual intercourse with a child under 15 years contrary to Section 139 (1) (b) of the 2016 Act. The particulars of offence state that, Mr Sade at Fasitoro, Auki, Malaita Province, on 24^th September 2019, did have sexual intercourse with a child, namely, Clerisha Sisitolo, who was under 15 years, to wit 14 years and 11 months by inserting his penis into her vagina.
3. Count 3 the statement of offence alleged that Mr Sade, had sexual intercourse with a child under 18 years contrary to Section 140 (1) (a) of the 2016 Act. The particulars of offence state that, Mr Sade, at Sikitae, Auki, Malaita Province, on 22^nd October 2020, did have sexual intercourse with a child under 18 years of age who was 15 years and 11 months old and was in a position of trust to the child.
4. On the 25/4/2024 Mr Sade was arraigned, premised on agreed facts filed the same day. Mr Sade entered a guilty plea to the 3 counts. Court convicted Sade on his entering of a guilty plea. Court will now determine the appropriate punishment.
5. The maximum penalty for each of the 3 counts is 15 years imprisonment. The seriousness of these offending is that a girl under the age of 15 or 18 years is protected from all forms of sexual abuses. And in this case, the victim under 15 or 18 was a secondary school student. The 2016 Act was enacted to protect young school age girls from sexual abuse by men, who are in a close relationship with the victim as in this case (position of trust – Sade being the victim’s agriculture teacher). Sexual abuse on a student placed this case in the worst class. Hence will attract a maximum sentence.
6. Court will start by adopting the agreed facts in full: -
   1. Defendant is Rocky Sade of Heuru village, Arosi 1 in Makira Province.
   2. Complainant in this matter is Clerisha Sisitolo and resides with her parents at Sikitae area in Auki, Malaita Province.
   3. Complainant is a student of Auki Community High School during the times of the offending.
   4. Sade was 24 years old during the time he committed the offences on the complainant.
   5. Sade was a teacher at the same school when the complainant was a student there, and he was the complainant’s agriculture teacher.
   6. Complainant was a form 2 student at Auki Community High School in 2019 when she entered into sexual relationship with Sade.
   7. Complainant told Sade that he was the second person to have sexual intercourse with her.
   8. Complainant was born on the 23^rd October 2004.
   9. The first time Sade had sexual intercourse with the victim was on an unknown date in the first month of June 2019 at night at Sikitae area in Auki, Malaita Province.
   10. The day before that night, both Sade and the complainant made an agreement to meet. They both agreed to meet under the mango tree close to her grandfather’s house at Sikitae area in Auki.
   11. Sade went there that night, met the complainant and both had sexual intercourse.
   12. During the first incident, the complainant was only 14 years old and 8 months.
   13. The second offending occurred on the night of 24^th September 2019. The complainant knew that a unit test will be held the next day. She called Sade and informed him that she will come to his house with her notes for explanation.
   14. She went to Sade’s house and after they went through the notes, they had sexual intercourse. After having sexual intercourse, the complainant went back home.
   15. The victim was 14 years and 11 months old when the second offending occurred.
   16. The third offending occurred in October 22 2020 at the Sikitae area. Both the complainant and Sade planned to meet that night. The complainant informed Sade to come to her house. Sade had to wait until the complainant called and informed him that her parents and brothers had already slept.
   17. Sade went to the complainant’s house and met the complainant. He asked for them to have sex outside the house but she led him into her room. The complainant was only 15 years and 11 months old at that time. They had sex in the room.
   18. Both the victim and Sade are Seventh Day Adventists (“SDA”) and they attend the same SDA Church in Auki, Malaita Province.
7. It is a serious offence to contaminate a student with sexual relationship, sexual intimacy and even to the extent of sexual penial penetration. What if she became pregnant? What if she was expelled from school? What if she was beaten by her brothers or parents? The most regrettable thing about this offending was the damage caused to the victim’s schooling. The victim may not get expelled from school. I don’t know. Nevertheless, she will still be affected from her schooling psychologically, emotionally and mentally.

Starting point sentence

8. In terms of starting point sentence, counsel have no disagreement. Counsel agreed it should be 8 years according to Sinatau Court of Appeal 2023, because the victim was under 15 years. This is the beauty about the start point sentence guidelines set by the Court of Appeal last year in Sinatau and Piqe Court of Appeal 2023.
9. Court will concentrate on one count only because all the three counts have the same maximum imprisonment sentence term of 15 years. All the three counts have the same crushing effect on the victim and her family. All the three counts branch out from the common sexual abuse on a student victim under 15 or 18 years. Court will not cover all three counts separately. Count 1 will be the focus. Then I will decide if the sentence should run concurrent or consecutive for each of the 3 separate counts, in view of the totality principle and the impact on Sade.

Aggravating factors

10. Court already settled the start point sentence at 8 years. Now that will increase upwards due to the presence of serious aggravating factors as follows: -
    • (i) Position of trust – Sade is the victim’s agriculture teacher at Auki Community High School when he had sexual intercourse with the victim, a form two student then in 2019. The victim depends on Sade for her schooling and education. Sade abused that position of trust when he engaged in sexual relationship with the student victim resulting in sexual intercourse. No school teacher should do this to his/her student. This is a serious aggravating factor against Sade, a teacher.
    • (ii) Age disparity – Sade was 24 years old. Victim was 14 years and 8 months at the time of first offending in 2019. Age difference of about 10 years. It is expected that an adult and more so teacher like Sade would take care and be responsible for every aspect of the student’s life, not just teaching agriculture.
    • (iii) Emotional and psychological harm - 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 victim’s heart and mind for the rest of her life. I should take judicial notice of such negative long-term impact (Regina v Bonuga [2014] SBCA 22SICOACRAC 12 of2014 (17^th October 2014).
    • (iv) Repetitive offending and pre-planning – There were 3 separate occasions of penial sexual intercourse. As a teacher, Sade should be a role model to the victim his own student. This case was full of pre-planning because Sade entered into sexual relationship with his student. He must have planned it. He must have thought about it. He must have spent his time and other resources on it. This is not what a teacher should be planning and doing. The teacher should be planning lesson plans and teaching the student in class, not teaching the student on sexual affairs.
11. For all of the above 4 aggravating factors combined, I will inflate the start point sentence by 7 years (1.7 years for each aggravating factor). That inflation will come to 15 years head sentence before mitigation. In Bade, Court of Appeal 2023, the Court said inflation due to serious aggravating factors should be in years and not merely weeks and months.

Mitigating factors

12. But Sade is entitled to mitigating factors, the first one (more rewarding) is early guilty plea. I will allow a 30% reduction. That comes to 4.8 years (5 years). This is a big reduction because early guilty plea benefits all stakeholders. For the Court it saves its precious time. For the victim, it saves her from the ordeal of sitting in the witness box and recounting her sad sexual experiences. For Sade it shows remorse and his acceptance to bear the consequences of his wrongful or unlawful actions.
13. Second is first time offender with no previous convictions. I will deduct 1 year. Next is compensation. I will deduct 6 months. Compensation is a worthy custom that the Court can acknowledge. It heals broken relations and restores communal unity. Delay, there are some delays since 2022. Case commenced in the High Court in February 2024. It already came through the Magistrate Court in 2022. But before that police must have started their investigations in 2020, having seen witness statements in file. Since 2020, Sade had been carrying a burden on him under the justice process, due to delay. I will deduct 6 months for breach of Sade’s constitutional right to a fair hearing within a reasonable time.
14. Sade will be entitled to any pre-trial custody times waiting for trial. Auki Correctional facility will determine this. Sade will be sentenced to 8 years imprisonment. As I stand back and look at the whole situation, a sentence of 8 years is appropriate considering the aggravating and mitigating factors. Not only that but Sade has been sacked and is doing further studies. This is the most lenient sentence I can give. That is because the maximum available is only 15 years imprisonment.
15. This sentence must be a custodial one to teach teachers (Sade too) a lesson that they hold a parental role over their students. And that role is a higher calling to take good care of every aspect of the student’s welfare, not just academic, but also her future welfare and interest. It is said that education is the key to the future well-being of any young child. This is the fundamental responsibility of every school teacher. I will not go wrong to say this is the highest ethical responsibility of a school teacher towards his student(s).

Conclusion and Orders

16. The 8 years sentence is for counts 1, 2 and 3 and will be served concurrently not consecutively. If I should make it consecutive it will be very excessive. And it will have a crushing effect on Sade (totality principle), because it will mean Sade would serve 24 years in imprisonment.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE